Understanding the Property ConundrumMarch 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 • Property issue does NOTnot stand still • Does not wait .... • Life goes on –property gets ‘handled’/used in everyday life/economic activity • And law-fare rages on: Title based claims -v- current use and users
What has been the different legal approaches of each side in the interim ? Greek Cypriot legal approach • Re: GC property in the north: the pre-1974 title holder is the only one with any kind of legal right and primarily is entitled to demand all property rights including restitution. Any intervening act on the property whether by ‘alleged’ state or individual is null and void, illegal, even criminal • Re: TC property in the south: established ‘Guardian of TC Property’ which basically has taken over all ownership rights of TCs till ‘normalisation’ (i.e. solution) in effect depriving/suspending all property rights of TCs. (Problem further complicated by the Guardian being inefficient and even allegedly corrupt as regards protecting the TC properties)
What has been the different legal approaches of each side in the interim Turkish Cypriot legal approach • Re: GC property in the north: TRNC took over all GC property via constituton, redistributed according to laws based on logic of eventual global exchange as method of resolving property issue. No legal mechanism existed for a GC to make a property claim in TRNC for compensation and also restitiution till law 72/2005 - IPC. • Re: TC property in the south: system compensated citizens for property abandoned by giving title to pre-74 GC property on the ‘esdeger’ or ‘equal-value’ logic. In return, waived all claims to property in south in favour of the TRNC strategisng on global exchange resolution to property issue. (Matters complicated by unjust/corrupt distribution and distribution to those who did not leave anything in south. Many TCs bitter and dissatisfied about the internal handling of this issue.)
Result ? 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.
What kind of legal actions have been taken by Greek Cypriots ? 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.....
What kind of legal actions have been taken by Greek Cypriots ? • In the GC Courts: Orams example: 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.......
What kind of legal actions have been taken by Turkish Cypriots ? In the European Court of Human Rights (ECHR): TC - v – R of Cyprus • Sofi case - amicably settled BUT shaken Guardianship law and presumption of existence of local remedy in south. R.o C. Promised court would amend guardianship law. Acknowledgment of flaws in south. • 10 Pilot TC cases – use of TC property by R of Cyprus disregarding h.rights... ECHR examining Guardianship system and questioning R of Cyprus on its details – admissibility battle Questions asked of RoC – response of TC applicants awaited
What kind of legal actions have been taken by Turkish Cypriots ? 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......
So what is this TC Immoveable Property Commission ? 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..
So what is this TC Immoveable Property Commission ? What does it do ?: The IPC accepts applications by pre-74 GC owners and is empowered to award them: COMPENSATION, EXCHANGE RESTITUTION. 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.
http://www.kuzeykibristmk.org/english/index.html • As of 10 March 2010, 459 applications have been lodged with the Commission and 95 of them have been concluded through friendly settlements and four through formal hearing. The Commission has paid GBP 40,191,100 to the applicants as compensation. Moreover, it has ruled for exchange and compensation in two cases, for restitution in one case and for restitution and compensation in five cases. In one case it has delivered a decision for restitution after the settlement of Cyprus Issue, and in one case it has ruled for partial restitution
What is the Demopoulos case ? EUROPEAN COURT OF HUMAN RIGHTS COUR EUROPEENNE DES DROITS DE LHOMME GRAND CHAMBER DECISION 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
What is the Demopoulos case - why is it important ? Redefines basic presumptions – just a few examples.... 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.
Demopoulos: Paras. 84 - 85 • 84... some 35 years have elapsed since the applicants lost possession of their property .. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established their homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance. • 85. ...the Court finds itself faced with cases burdened with a political, historical and factual complexity flowing from a problem that should have been resolved by all parties assuming full responsibility for finding a solution on a political level. This reality, as well as the passage of time and the continuing evolution of the broader political dispute must inform the Court's interpretation and application of the Convention which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances.
Demopoulos – para 116 • 116. The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility,...... It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court's task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention.
Demopoulos – para 117 ...... 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.
2nd presumption redefined 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
Demopoulos – para 94confirming the Namibia principle • “... the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the defacto authorities, including their courts; and in the very interest of the inhabitants, the acts of these authorities related thereto cannot simply be ignored by third States or by international institutions, especially courts, including this one.” (ibid., § 96)
3rd presumption redefined 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
Demopoulos – para 128 • this decision is not be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above.
4th presumption redefined 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)
Orams -v- Demopolous ?? • Impact of Demopoulos on Orams if any • Different legal channels BUT interrelationship in arguments • May be (or may not be) too late for Orams couple but much new weight to defending new Orams type cases • Expert legal evaluation being sought urgently to evaluate relationship between ECHR and EU law, impact of Lisbon Treaty • which principles will GC courts now apply in new Orams type cases
Can Demoploulos bring new openings ? • Council Regulation (EC) No 389/2006 • of 27 February 2006 • establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction • Article 7 • Protection of Rights of Natural and Legal Persons • 1. The Commission shall ensure that in the implementation of actions financed under this Regulation the rights of natural or legal persons including the rights to possessions and property shall be respected. In this context, the Commission shall act in accordance with the case law of the European Court of Human Rights.
GC Leaderships response... • Christofias ‘I told you so’..........or did he? • ‘Dont go to the Commission’ • ‘We can only resolved this problem fully at the table’ • ‘ We maybe need to use the IPC implementation in changing the Guardianship law.....’
Conclusion • This is by far the most farreaching court decision on the property issue arising from the non-solution of the Cyorus problem • As TCHR foundation, we are extremenly satisfied at the conclusion that the administration of the TRNC – irrespective of all disputes over its status CAN AND IS PROVIDING RESPECT FOR HUMAN RIGHTS • This is not just a reality, it is a VISION that has to be emphasised and supported.