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12 August 2011   Last Chance for Applications to the Immovable Property Commission
22 November 2009   European Court of Human Rights - Arguments
21 November 2009   European Court of Human Rights and the Immovable Property Commission
20 October 2009   Immovable Property Commission - Progress to Date
12 December 2006   North Cyprus Property Commission Established
     

The European Court of Human Rights - Arguments
22 November 2009

The Grand Chamber of the European Court of Human Rights will probably take some 6 months to deliberate on the Demopoulos and 7 others vs Turkey case.

The main strength of the arguments supporting the TRNC Immovable Property Commission (IPC) is that it does offer dispossessed Greek Cypriots a local remedy for land lost in the 1974 partition of Cyprus.

The number of applications, some 433 to date, could have been higher. However, the negative attitude and actions of the Greek Republic of Cyprus have undoubtedly deterred many applicants from filing claims. Indeed, the author has received enquiries from some 10 Greek Cypriots who would wish to make an application to the IPC, but would only do so on the basis of anonymity.

The capacity to offer compensation is most useful as most claimants are the heirs of the dispossessed owners and often cannot even locate the lost property on the ground in North Cyprus. Further, they would not wish to take occupation of the property as North Cyprus has a very different culture to that of the Greek Republic of Cyprus.

From a TRNC viewpoint, the IPC was intended to be a temporary institution pending a political settlement to the Cyprus problem. As a solution remains as elusive as ever, the IPC may need to adjust to a long term agenda for the settlement of claims.

From the outset, the Greek Republic of Cyprus has been antagonistic to the Immovable Property Commission. This hostility is based primarily on political considerations, namely, the Greek side dislike the idea of a TRNC body having the power to adjudicate on property claims. The continued existence of the TRNC IPC and its possible recognition by the European Court of Human Rights as the natural institution for settling claims by dispossessed Greek Cypriots is viewed as an alarming prospect as it would endorse a TRNC government body on the international stage. The Greeks wish to promote their claim that they and only they are the sole and legitimate government for the island of Cyprus.

The main thrust of the Greek Cypriot argument is the ‘systemic defect' of the IPC, namely that the prospect of restitution is, for most claimants, a remote possibility. The claim is based on TRNC response to the European Court rulings of Loizidou and Xenides Arestis. This is due to the fact that large tracts of previously Greek Cypriot occupied land in North Cyprus have been allocated to other users. These occupiers often have the benefit of TRNC title deeds.

The IPC has considered this possibility and has a clause stating that restitution can be resisted on a public interest and order basis. Any TRNC administration which contemplated the wholesale and immediate return of Greek Cypriot land to dispossessed persons would create political turmoil in North Cyprus and would be voted out of power at the first available opportunity.

The Greek Cypriot side stated that the rights of current occupiers are subsidiary to the claims of dispossessed persons for restitution. It therefore follows that the current owners should be evicted in order for the heirs of dispossessed persons to reclaim their land. From an academic and purely legal standpoint, this argument does have weight. However, the activities of the Immovable Property Commission have to enjoy the support of the citizens of North Cyprus, many of whom have made their homes on land previously owned by Greeks. The eviction of Turkish Cypriots from homes that have built on land previously owned by Greek Cypriots would be unacceptable to the TRNC electorate. It would be naive of the European Court of Human Rights to dissent from this opinion.

This is a controversial issue and it is compounded by the presence of a considerable number of mainland Turks who were encouraged to emigrate to the TRNC after 1974. Although it is reported that some 37,000 settlers from Turkey have voting rights in the TRNC, the total number of transient mainland Turks is often quoted as high as 100,000. There are concentrations of mainland Turk settlers in the Karpaz peninsula and many of these people have TRNC title deeds. This contested statistic, together with the presence of some 40,000 Turkish troops in North Cyprus, is used to support the Greek Cypriot reference to the TRNC as ‘the occupied territory', both in the European Court and elsewhere.

The Greek Cypriot side is also arguing that the Turkish Army is guilty of ethnic cleansing in that Greeks fled from North Cyprus to the South in 1974. On balance this appears a weak argument as the Greek Cypriots had discriminated against Turkish Cypriots for many years prior to 1974, and this discrimination often led to forced departure from property and even death.

Professor Lowe QC spoke for the claimants and argued that the IPC was not a local remedy as it had been created in the aftermath of an illegal armed invasion. Therefore, he argued that it is wrong to encourage dispossessed persons to apply to an institution established by a foreign occupying power.

This argument is a testimony to the creative imagination of the legal profession. If the IPC had been established by Turkey within say 5 years of the partition of Cyprus and administered by lawyers appointed by or members of the Turkish army, then the argument may have merit. However, the invasion of 1974 is a distant, although vivid, memory for older people in Cyprus, and for young people a matter of historical interest.

The argument implicitly assumes that the ‘occupied territory' is governed by the Turkish army on behalf of Turkey. This is a false claim: the TRNC is a peaceful civil administered and autonomous region of Cyprus and political leaders are Turkish Cypriots. The inclusion of two international judges does assist the status of the Immovable Property Commission and their numbers could perhaps increase. The Greek Cypriot side would wish to have representation on the IPC. While this may be desirable, it would be a recipe for disaster as the IPC would then become a forum bedeviled by internal bickering and dissent.

It was argued at the European Court of Human Rights that Article 159 of the TRNC Constitution was unlawful. Article 159 empowers the TRNC authorities to expropriate abandoned land and properties. This article was amended to take account of the possibility of restitution for dispossessed Greek Cypriots. Article 159 sits uneasily with the TRNC commitment to recognition of the rights of dispossessed persons and would benefit from review. However, Article 159 should be interpreted within the TRNC commitment to international human rights legislation with respect to dispossessed persons.

The final argument was concerned with bizonality. This is the principle that any settlement of the Cyprus Problem would be based on bizonality for the foreseeable future. From a TRNC perspective, this means that the North will be mainly Turkish Cypriot and the South Greek Cypriot. Over time this may well change, and the daily migration of Turkish Cypriots to work in the South could accelerate integration. The Greek Cypriot understanding of bizonality appears to be different, although Messrs Talat and Christofias use this expression as if there is a consensus as to its meaning.

From the TRNC perspective, an agreement on bizonality repudiates accusations of ethnic cleansing and represents a pragmatic way forward for both communities.

The presence of many eminent lawyers at the hearing discredits the view that this is a private matter between a number of claimants and Turkey. In reality, this is a case brought by the Greek Republic of Cyprus against the TRNC, and its supporter, Turkey.

Author and Copyright
Leslie Hardy is the UK Chairman of Wellington Estates Ltd, a North Cyprus property development company.

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