Understanding the Property Conundrum March 2010. EMİNE ERK Chairperson of the Turkish Cypriot Human Rights Foundation. Property: the live issue . As the Cyprus problem remains unresolved Or even as negotiations continue Unlike power sharing/territory/guarantees etc
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Chairperson of the Turkish Cypriot Human Rights Foundation
Title based claims -v- current use and users
Greek Cypriot legal approach
Turkish Cypriot legal approach
Both sides have flaws in their treatment of human rights relating to property which have given rise to different kinds of legal action being taken by individuals and state over the past years ....and now.
In the European Court of Human Rights (ECHR):
i) R of Cyprus -v- R of Turkey
4th Interstate case judgement (2001) finds Turkey in breach of GCs human rights re property and also other issues e.g. Missing persons. Sets precedent re Turkey’s accountability for implementation of ECHRConv. In order not to create a vacuum/black hole in h.r. And declares TRNC a ‘subordinate local authority’ acknowledging ‘validity’ of some basic acts of this authority under ‘Namibia’ rule.
ii) GC individuals -v- R of Turkey
Louizidou, Arestis, Demopoulos.... Claims by individuals against Turkey – total number approx.1500 – very few resolved ONLY 1 ever been paid compensation by Turkey so far – Louizidou. EVOLUTION in ECHR rulings – and response by Turkish side: Loizidou states continuation of property rights, Arestis recommends setting up local remedy, Demopoulos sends 1,500 to IPC Lefkoşa OR WAIT FOR THE SOLUTION.....
Concluded in GC court, registered in UK court, interpretation of EU law to ECJ. Finalised in UK except for pending appeal and execution. Monetary satisfaction in UK possible. Implementation of order for demolition and possession still outside effective jurisdiction of any court except TRNC. Orams applied to ECHR for ‘unfair trial’ case pending
Case precedent NOT on status of property but on USE OF REGULATION 44/2001 TO IMPLEMENT JUDGEMENTS OF EU MEMEBER STATE İN ANOTHER MEMBER STATE.
ALARMING NONE THE LESS.......
In the European Court of Human Rights (ECHR):
TC - v – R of Cyprus
ECHR examining Guardianship system and questioning R of Cyprus on its details – admissibility battle
Questions asked of RoC – response of TC applicants awaited
In the courts in the south:
Several TCs have and are trying to pursue property rights in south. Complaints of severe delays, obstructions, emphasis on settling rather than resolving thru courts –
Reality: with the Guardianship law as it stands, not possible to get justice in property rights in south
Fear in south of Orams type case against for e.g. GC refugee housed on TC property .
GC faced with clear issue of double standard/disregard for h.r even DISCRIMINATION......
Why established ?: ECHR Xenides-Arestis case:
Usual ECHR process that if flood of cases on same issue, respondent state is advised and expected to set up local remedy – ECHR is NOT 1st instant – and is NOT going to sit and hear 1500 cases!! ECHR gave Turkish side the ‘recipe’
How established ? : Law 67/2005
Law passed to set up IPC in accordance with given ‘recipe’ – contraversial internally. ‘We shed blood – we won the war’ – ‘this destroys bizonality which can only be achieved thru global exchange’ - ‘if they come back there will be bloodshed again’ types of rhetoric.
Converted to a challenge on constitutionality by UBP. TRNC Constitutional court upheld law and IPC and reemphasised that ECHRConv and court are part of TRNC domestic law..
What does it do ?:
The IPC accepts applications by pre-74 GC owners and is empowered to award them:
Restitution is dependant on criteria relating to present use.
The IPC is a board made up of up to 7 members 2 of which are foreign h.r. Experts
Located Saray Önü – contains facilities for translations/interpreters.
EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPEENNE DES DROITS DE LHOMME
AS TO THE ADMISSIBILITY OF
Application nos. 46113/99, 3843/02,13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04by Takis Demopoulos and Others, Evoulla Chrysostomi, Demetrios Lordos and Ariana Lordou Anastasiadou, Eleni Kanari-Eliadou and Others, Sofia (Pitsa) Thoma Kilara Sotiriou and Nina Thoma Kilara Moushoutta, Yiannis Stylas, Evdokia Charalambou Onoufriou and Othersand Irini (Rena) Chrisostomouagainst Turkey
Presumption: That property rights are frozen in 1974, any following dealing of property is null and void and can be disregarded.
Redefinition: Cannot disregard the passage of time and current users.
...... there is no precedent in the Court's case-law to support the proposition that a Contracting State must pursue a blanket policy of restoring property to owners without taking into account the current use or occupation of the property in question.
Presumption: That because the TRNC is not an internationally recognised state, all acts and legal mechanisms of the TRNC are invalid
Redefinition: the administrative acts of a state cannot be ignored just because there is no international recognition of the entity
Presumption: That ECHR will deal with GC complaints and not refer to IPC - the negotiations or e.g Annan plan are completely irrelevant
Redefinition:Court examines property provisions of the Annan Plan – finds it appropriate to say either IPC or solution
Presumption: That ECHR will agree to treating any matter relating to ‘settlers’ soley in the light of h.rights breaches of GCs.
Redefinition:Court makes reference to danger of commiting new wrongs in order to redress past ones including impact on all current users affected, including ‘settlers’ (para 84 above)