Transcript Slide 1

Understanding the Property
Conundrum
March 2010
EMİNE ERK
Chairperson of the Turkish
Cypriot Human Rights Foundation
Property: the live issue
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As the Cyprus problem remains unresolved
Or even as negotiations continue
Unlike power sharing/territory/guarantees etc
Property issue does NOT not 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):
1.
2.
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, 21819/04
by 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 Others
and Irini (Rena) Chrisostomou
against 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 94
confirming 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 de facto
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 nonsolution 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.