Published in The Cyprus Star 12th March 2010
HOPE FOR SETTLEMENT IN 2010
ECHR upholds IPC – Obstacles to peace removed one by one
A Special Report by Safa Group in-house legal adviser, Martin Clitheroe
In a landmark decision the European Court of Human Rights has strongly supported the role of the Immoveable Property Commission (IPC) in dealing with disputes in relation to land in the North, a move which could pave the way for a comprehensive solution to the Cyprus problem.
Seventeen Judges sitting as the Grand Chamber of the European Court of Human Rights (ECHR) have handed down their decision in the case of Demopoulos and Others –v- Turkey. If the Orams case can be seen as a victory for the Greek Cypriots then the Demopoulos case is a feather in the cap for Turkish Cypriots.
The Demopoulos case was an application by a number of Greek Cypriots who had been deprived of their land in the North at the time the island was partitioned. The ECHR has long held Turkey as responsible in International Law for the actions of the TRNC, notwithstanding that the TRNC is a democratic society over whose Government and institutions Turkey has influence but no control.
 Turkey opposed the application on the ground that the applicants had failed to exhaust the domestic remedy which was available; in this case, an application to the Immoveable Property Commission set up in 2005 by the TRNC to deal with property issues.
The decision of the TRNC rested on the “Namibia principle”. Namibia was a territory in Southern Africa which was taken under the wing of the United Nations in the 1980’s. However, contrary to International Law, South Africa took control of the area. The “Namibia principle” is that “even if the legitimacy of the administration of a territory is not recognised by the international community international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, the effects of which can be ignored only to the detriment of the inhabitants of that territory”.
The applicants in the Demopoulos case sought to argue that to require them to submit themselves to a creation of the TRNC Government was tantamount of recognition of that Government. However, as the ECHR pointed out, “Turkey is accountable for violations of the Convention and is bound to take positive steps to protect those rights. It would not be consistent if the adoption by the TRNC of measures… were then to be denied validity.”
The ECHR went on to say that even if the applicants were not living under the control of the TRNC the Court considered that if there were an effective remedy available for their complaints then they had to pursue it and, if they did not, they would be determined not to have exhausted the domestic remedies available. As the judgment of the Court said, “The fact that the applicants live outside the occupied area” (the Court’s words) “furnishes no reason in principle why they should not be expected to apply to a TRNC body where it can be demonstrated that a remedy is both practicable and normally functioning”.
Another ground for the applicants objection to the Immoveable Property Commission was that it rarely ordered restitution (i.e. the return of property to its original owner). However, on this point the Court made the telling observation that “the Court must also remark that some 35 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 TRNC “to effect restitution in all cases. It cannot be within this Court’s task in interpreting and applying 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”
Unlike the European Court of Justice in its ruling on the Orams case the ECHR has seen that the law must adopt a common sense approach and that in dealing with Cyprus 35 years of history cannot just be ignored.
So the ECHR has made it crystal clear that where property disputes in relation to land in the North are concerned the property forum for their resolution is the Immoveable Property Commission.
But this decision has wider implications impacting on the whole question of a solution for the Cyprus problem.
It is widely acknowledged that there are three major stumbling blocks to a breakthrough in the long-running talks between President Talat and President Christofias. These three are Property, Troops and Guarantees.
The ECHR has given international recognition to the Immoveable Property Commission as being the forum which can resolve property issues.
On the question of Turkish Troops in North Cyprus the Turkish Prime Minister, Recep Tayyip Erdogan, has very recently made it clear in an interview with the Greek Cypriot newspapers that Turkey is perfectly happy to agree to reduce and finally remove its troops on conditions. Indeed, the Annan Plan provided for an orderly removal of Turkish forces as the post unification period of normalisation occurred. Those conditions might involve a structured de-militarisation of the whole of Cyprus, including Britain’s offer to reduce the Sovereign bases at Akrotiri and Dhekelia as well as the removal of the many Greek troops stationed in the South.
Finally, there may even be the possibility of movement on the question of third party guarantees with Turkey agreeing to relinquish its role as guarantor of the Cyprus Constitution upon gaining accession to the European Union.
The Greek Cypriots have long tried to make out that Turkey has failed to support the peace process. Now the Turkish Cypriots, in conjunction with Ankara, have made public concession which should make it possible for a mutually acceptable resolution to be found. Should the Greek Cypriots fail to match the concessions being made by the North then the international community will quickly see which side it is being intransigent and, should the talks fail to reach a resolution, where the rewards and the blame should fall.
A historical ruling was made Friday by the European Court of Human Rights concerning the legal procedures in Northern Cyprus and its acceptance by the European Court.
The ECHR Friday ruled that eight Greek Cypriot pilot cases can be decided by the TRNC Immoveable Property Commission. The ruling states that the “Immoveable Property Commission in North Cyprus is accepted as being able to provide an effective domestic legal remedy to Greek Cypriot property applicants”. The ruling means that property claims by Greek Cypriots can be remedied by either: “Compensation, Exchange or Restitution”. The ECHR sees Northern Cyprus as being under the control of Turkey, and therefore, sees the Commission like that of a Court in Turkey, a subordinate body. Following the Orams case by the European Court of Justice, issues as to how the ECHR would make its ruling concerning property applications was subject to debate in North and South Cyprus. The final ruling by the ECHR is that the TRNC based Immoveable Property Commission is accepted as being able to provide a domestic remedy. So far a total of 105 Greek Cypriot applications have been remedied, and a total of 65 million dollars have been paid in compensation. There are at present some 1,100 Greek Cypriot property cases pending. All eight Greek Cypriot pilot cases have now been sent back to the Commission to be dealt with, and all other cases will now be dealt by the Property Commission in Northern Cyprus.
However, if the Greek Cypriots are not happy with the decision of the Commission, can they go to the ECHR? Put in simple terms, yes they can. However, the reasonableness in law must be addresses at such applications. The Greek Cypriots argued that the Commission had emanated as a result of the “Turkish occupation and illegality” and, therefore, should not be recognised. The Greek Cypriots also argued that all Greek Cypriots should be able to seek a legal remedy directly at the ECHR because there was no legal domestic organ which was recognised in the TRNC. However, the ECHR accepted the Turkish position and ruled that all claims can be handled and remedied at the IPC. Turkish and Turkish Cypriot officials have welcomed the ruling, which is expected to have a positive impact on the construction industry in North Cyprus.
President Mehmet Ali Talat made a statement following the ECHR ruling, where he said that they were now picking up the fruits and rewards following many years of hard struggle and putting forward the correct political approach. “This is indeed a very important ruling and is historic,” he said. Referring to past precedents at the ECHR, Talat added: “As it is known, the legal precedent was up until now the Louzidou type approach. This case was the basis for the type of approach that would be taken by the ECHR. However, this situation is now changing. Now, the IPC which we set up in the TRNC is recognised as providing an effective domestic legal remedy. This domestic remedy is competent and able to provide remedies in resolving the property issues”. The President also said that the “ECHR ruling had recognised the High Administrative Court in the TRNC. If Greek Cypriots do not like the IPC ruling than they can take their case to the TRNC High Administrative, just like it is done in any other normal legal order of another State. This is very important indeed,” he said.
President Talat said that up until now, the Greek Cypriots were bringing legal actions against the Turkish side and had always argued that “the fate of the property could only be decided upon by its previous (Greek Cypriot) owner. The ECHR ruling has however clearly stipulated that this is certainly not the case, and that the property issue can be resolved through other means through compensation and exchange, as well as restitution. This is a common sense approach and a correct one. This is now an advantage at the negotiating table,” he said.
“Now we have one very clear message. Either we find a comprehensive solution to the Cyprus problem, or we will resolve the property issue through this route”. The IPC is well funded through different means. However, I will not disclose as to what these means are at present,” he said.
Meanwhile, the Turkish Foreign Minister Ahmet Davutoglu evaluated the ruling made by the ECHR that the TRNC Immovable Property Commission constitutes a domestic remedy for property cases filed by Greek Cypriots as a historic decision and added that this must be understood very well. Foreign Minister Davutoglu, who this week attended the EU Foreign Minister meeting in Spain which is the current holder of the EU term presidency, evaluated the ruling of the European court of Human Rights. Noting that the ruling by the ECHR should have an easing effect and positive role on the two sides during the negotiations process, Mr Davutoglu said, “On the property issue, this decision will have an important advantage in trying to achieve an improved and just solution on the issue. We appreciate this ruling. It also means that the ECHR recognises that there is a functioning legal order in the Turkish Republic of Northern Cyprus which is in accordance with international law. From now on the Turkish Republic of Northern Cyprus Immovable Properties Commission has become the authorised body to deal with this issue”, he added.
Greek Cypriot political parties across the political spectrum and officials expressed “fury” at the ECHR ruling. The Greek Cypriot Government Spokesperson, Stefanos Stefanou, said that the ECHR decision would be respected but, “The ruling is manifestly wrong. The ECHR cannot refer a (Greek Cypriot) property owner to a remedy that is essentially the product of and born from an illegality,” he said.
All parties including AKEL, DISY, DIKO, EDEK, EVROKO and the Greens were equally bleak regarding Friday’s decision. The House Legal Affairs Committee president and DISY vice president Ionas Nicolaou said the decision would have to be examined “carefully and calmly” and personal initiatives avoided “because maybe one of the reasons which led us here was the large number of cases [1,400] pending before the court”. Nicolaou said the ECHR decision to recognise the IPC, irrespective of how it was set up, was extremely serious and needed to be addressed responsibly.
Referring to the decision, Greek Cypriot Attorney-general Alecos Markides said Turkey had been given the green light to take into account other considerations before reaching a decision on each application, namely the position of third parties such as Turkish based TRNC citizens living in Northern Cyprus.
Advocate and Chairman of the Turkish Cypriot Human rights Foundation, Emine Erk, said that “The ECHR ruling was very significant. Firstly, it relieved pressure from Turkey because some 1,500 Greek Cypriot cases would not be brought against Ankara at the ECHR, but would be resolved at the IPC Commission in the TRNC. Secondly, from a Human Rights perspective, it took into account the procedures of the legal system in Northern Cyprus; and thirdly, the ruling clearly stated that the work and remedies provided by the IPC could not be dismissed simply because it did not provide reinstatement of the property to all applicants. This completely contravenes the stance that has always been taken by the Greek Cypriots”.
With regards to the Orams Case, Erk said, “The ECHR new ruling will provide a strong legal argument if any case is individually brought, because in the Orams case, the European Union Commission Lawyer had raised the IPC issue”. The Greek Cypriot side had raised the issue that the IPC was not (at that time) a legally recognised body. Erk said, “This is certainly not the case now. This will provide a strong legal argument. The ECHR ruling explicitly states that to protect the Human Rights of one party, you cannot create new breaches of Human Rights”.
The British Residence Society (BRS) Chairman Morton Coles said that they had always advocated that this was the correct way in handling such cases ever since the inception of the IPC. “We have always said that property cases can either be resolved through a comprehensive political settlement; or through an independent commission.”
“There has definitely been justice in the ECHR ruling. It is a great deal of compensation that will be paid by Turkey. However, our members and the expatriate community are very pleased.”
With regards to the Orams case, Coles remarked: “There will not be any Orams type cases in the future because the accepted legal remedy is now the domestic work of the IPC,” he said.
The Home Buyers Pressure Group (HBPG) Chairman Marian Stokes described the ECHR ruling as excellent, adding that “Home Buyers in North Cyprus and the expat community have been waiting for such a ruling for a long time. We hope this puts an end to such court cases. The ruling has brought total relief for home buyers. We hope that the market will pick up after this ruling. This is certainly justice, because the Greek Cypriots have been very greedy. The property issue must be resolved through reason. The Greek Cypriots were not left homeless and did not suffer. They want compensation for a problem they themselves started, whilst the Turkish Cypriots were left under isolation for many years. This is a step in the right direction,” she said.
The Immovable Property Commission (IPC) was set up under the Immovable Property Law (number 67/2005) in accordance with the rulings of the European Court of Human Rights in the case of Xenides-Arestis v. Turkey. The IPC headquarters are based in Lefkosa, North Cyprus. The purpose of this measure was to establish an effective domestic remedy for claims relating to abandoned properties in Northern Cyprus. The Immovable Property Commission officially began its activities on 17 March 2006, upon the appointment of its President, Vice-President and members by the Supreme Council of Judicature among persons nominated by the President of the Turkish Republic of Northern Cyprus. The Commission consists of Mrs Sumer Erkmen, President; Mr Gungor Gunkan, Vice-President; Mr Ayfer Erkmen, Mr Hans C Kruger, Mr Romans Mapolar, and Mr Daniel Tarschys, members.
The Immovable Property Commission examines claims and provides legal remedies on restitution, compensation and exchange, according to the provisions of the law no 67/2005. Its considerations are based on the principles of bi-zonality and bi-communality which have been common elements of the 1977-1979 High Level Agreements as well as plans for a settlement of the Cyprus Issue prepared by the United Nations. It seeks to satisfy the legitimate claims of property owners without prejudice to the rights of the Turkish Cypriot Community.
As of March 5, 2010, 455 applications have been lodged with the Commission and 94 of them have been concluded through friendly settlements and four through formal hearing. The Commission has paid GBP £40,062,100 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 the Cyprus Issue, and in one case it has ruled for partial restitution. The Immovable Property Commission seeks to be a just, fast and effective remedy for property claims. In this way, the Commission purports to contribute to the comprehensive settlement of the Cyprus Issue. |
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