Cyprus,three years after EU accession:
A member state with a divided legal system

25 -26 May 2007 in the European Academy, Berlin

European law and its effects on Cyprus

Emine Erk
Chairperson of the Turkish Cypriot Human Rights Foundation
 

PROPERTY

The unresolved problem in Cyprus still awaits a comprehensive negotiated settlement on the agreed basis of a bicommunal, bizonal federal structure. The essential ingredients of a settlement will include issues such as power sharing within a federal structure, territorial adjustment, withdrawal of troops and the role of the guarantor powers. The other major element will be the challenge of how to deal with the issue of property; trying to balance  the rights of the original owners who abandoned their property during the years of conflict and those who have used and developed them during the many years since.

Property Overview

At different times during the past 50 years in Cyprus, there have been intercommunal conficts as a result of which vast numbers of both Turkish Cypriots and Greek Cypriots have been displaced. The major periods of such hostilities have been in 1958, 1963-4 and finally  in 1974-5.
Separation of the two communites and the formation of the first ‘green-line’ dividing them into separate zones came about after the collapse of  the constitutional order in December 1963, with the  UN arriving in Cyprus in 1964 to assist in peace keeping. After the miltary intervention of the Turkish army following the coup in 1974, the present cease fire line stretching East to West and currently dividing the island into two separate regions was created and remains to this day – 33 years later.
The South is the area in which the Greek Cypriots live and which is recognised internationally as being under the effective control of the ‘Republic of Cyprus’.  The Turkish Cypriots live in the Northern part, the Turkish Republic of Northern Cyprus (TRNC ) which is a state recognised only by Turkey. 
During 1975 and after the end of the hostilities of 1974, a population exchange arrangement was agreed by the two sides whereby Greek Cypriots left their homes in the north and moved south while Turkish Cypriots living in the south left their properties and homes to go north to the Turkish held area.
At the 1977-79 summit agreements, the two sides accepted that a future settlement will be based on a bicommunal bizonal federal Cyprus. But in the interim period, each side has created their own ‘property regime’ to govern ‘abandoned’ property in their region. Owners from both sides are making claims from each authority relating to the losses they have suffered through deprivation of their property rights.

Resolving the property problem.
 
The nearest we have come to a method of resolving the property problem in its entirety has been the Annan Plan, which was put to simultaneous referenda in April 2004.  It will be remembered that a very large chunk of the Annan Plan contained the provisions on how property would be dealt with, providing complicated mechanisms and calculations.
The Annan Plan was accepted by the Turkish Cypriots and rejected by the Greek Cypriots. The reasons are not the subject of this presentation but the result is that in the absence of this or any other solution, each side continues to treat this property under their own regime, giving rise to continued complaints of breach of  property rights.

What have the Greek Cypriots been doing about property ?

The Greek Cypriot authorities claim in principle that just as property rights of Greek Cypriots in the north have to be restored their owners, equally, Turkish Cypriots’ property rights continue in the south. In practice however,  they have in place a ‘Custodian Law’ which has taken over ‘control’ or guardianship of ‘abandoned’ property of the Turkish  Cypriots. Currently,  the Guardian controls the property to the exclusion of the rights of the Turkish Cypriot owners. Turkish Cypriots are unable to regain possession or receive rent or maintain their own property. Furthermore, after it became possible to cross the Green Line in April 2003, many Turkish Cypriots returned to their original properties only to find they had been demolished, or used for infrastructure – roads, bridges, damns, power stations, military camps, industrial zones, air and sea ports, refugee housing, parking areas and football stadiums. When a Turkish Cypriot demands their property rights they are informed that their property is now governed by the ‘Guardian’ and they will not be entitled to anything until an end to the Cyprus problem.
In sharp contrast to this policy, as regards Greek Cypriot properties in the North, both the Republic of Cyprus and Greek Cypriot individuals pursue  claims for immediate supply of property rights, irrespective of any Cyprus problem, as follows :
1) In the European Court of Human Rights (ECHR), the Republic of Cyprus has been successful in an interstate action against Turkey in which, among other things, Turkey was found to be in breach of the Convention rights of  Greek Cypriots relating to property. Similarly in the case of Loizidou v Turkey in the ECHR, an individual action was successful against Turkey for breach of property rights and generous damages awarded, and in time, paid. Now there are approximately 1400 actions by individuals against Turkey pending in the expectation that their case will follow the precedent set by the Loizidou case.
2) The boom in the develpment of property in North Cyprus particularly after the referenda has given rise to alarm among the Greek Cypriots. Understandably they see this as illegal, unethical and a horrendous further complication of the Cyprus dispute through irreversable faits accomplis. In an effort to stop this development the Greek Cypriot government has passed laws under which individuals can be arrested, prosecuted and sentenced to upto 7 years imprisonment for dealing with Greek Cypriot property. This was followed by steps being taken to try to issue European Arrest Warrants against individuals accused so that they can be traced and caught in any other member state. Both Turkish Cypriots and foreign investors in North Cyprus have been searched, questioned and charged when trying to cross to the south in the implementation of this policy. As a result, the crossings decreased and resentment rose adding to the existing ‘cooling off’ process between the two communities. It would appear that the harm caused by these developments has been realised and there have been no significant incidents of aggressive implementation of this law at least against Turkish Cypriots for many months.
 
3) Another method of pursuit of property claims is the filing of civil cases by individual pre-1974 owners against individual ‘current users’ in the north. The well known example of this is the case of the British citizens with a second home in North Cyprus, the Orams. This interesting case, like the European Arrest Warrant has added a new  EU dimension to the property war on the island. The retired British couple had bought a house under the property regime in North Cyprus.
Someone claiming to have bought the land on which the house stands from its pre-1974 Greek Cypriot owner has served proceedings and obtained a court judgement in S.Cyprus against the couple. The judgement was then taken to the UK and registered in the courts there with a view to enforcing the judgement on the Orams assets in England relying on provisions of the acquis communutaire relating to recognition of court decisions of member states.
On the objection of the Orams, the UK court decided against allowing the implementation of the judgement obtained in Cyprus and the issue is now due to be heard on appeal in the UK Appeal Court. It will be interesting to see if the appeal Court will confirm, overturn or refer the matter to the European Court of Justice (ECJ) for interpretation of what is meant by ‘suspension’ of the acquis communutaire. It is possible that in the months to come and through the Orams case, we will learn the views of the ECJ on whether it is deemed appropriate under the circumstances for the Republic of Cyprus to extend its jurisdiction and seek implementation of acquis regulations on issues arising in an area where it has no effective control.

What have the Turkish Cypriots been doing about property ?
 
The Turkish Cypriot Administration created a property regime, based on a line of reasoning incorporated in its constitution which basically expropriated all Greek Cypriot property abandoned in 1974-5 and proceeded to distribute it to Turkish Cypriot refugees and immigrants from Turkey under the ‘Land Distribution and Equivalent Property Law’.
The Property Commission
In the continuing cases of Greek Cypriots in Strasbourg, the ECHR has called on Turkey, through what it has described as its subordinate authority in the north, to provide a local remedy whereby aggrieved Greek Cypriot owners can apply and obtain redress without having to resort to the ECHR. As a result,  the Turkish Cypriot authorities have taken what is for them a very radical measure and set up a ‘Property Commission’, empowered to provide restitution,  exchange or compensation to Greek Cypriots claimants. This law was challenged in the constitutional court by Turkish Cypriot political parties but upheld by the Court declaring themselves bound by both the European convention and also the decisions of the ECHR.
Influential circles in the south have significantly discouraged the Greek Cypriots from applying to the commission, using rhetoric which often goes as far as accusing applicants of betraying their own side by giving credibility to what they regard as a ‘trick’ or insincere device to delay and sidetrack Greek Cypriot property cases in the ECHR.
Just over a year since it has started operating, there are about 150 applications to the commission and about 20 resolved claims of which some are restitution but most are compensation in return for giving up all rights of ownership on the property concerned. The ECHR has expressed a preliminary opinion that it welcomes the setting up of the commission which in principle seems capable of providing local redress but whether it actually is or not remains to be decided in future appropriate decisions. The commission is not fast and it is not perfect, but to my mind it is the wisest step that the Turkish Cypriot and Turkish side has been able to take in response to the onslaught of cases in the ECHR.

Turkish Cypriot Property claims against the Republic of Cyprus

The treatment of Turkish Cypriot property in the south has given rise to many complaints by the owners, some of which have been translated into legal action and many not, as yet.
There is an interesting psychological phenomenon that makes Turkish Cypriots more reluctant to take legal action than Greek Cypriots in that, assisted by their political leadership of many years they have come to understand bizonality to mean a physical separation of the two communities and settlement of the property issue through global exchange. Many have been given property in the north on the understanding that in return they give up all claims to their property in the south to be used by their leadership for the purposes of a negotiated settlement where their property would be used against Greek Cypriot property left in the North.   
However a number of Turkish Cypriots are taking legal steps including cases in the ECHR as well as in local courts in the south. In the south they face difficulties with a legal system its practitioners operating in a language that they do not know and in an environment which they regard with suspicion. In the ECHR, Turkish Cypriot cases are still very new and in the early stages of the long procedure of that court. However, through a case filed back in 2003, it is highly likely that the compatibility of the ‘Custodian Law’ with Convention rights will be scrutinised by the ECHR within the next few months.    

Property development in North Cyprus: the painful reality

After the failure of the Annan Plan, the Turkish Cypriots made their own interpretations and predictions concerning the property issue.
a) Whenever the solution comes, property will be dealt with in a similar method to the property regime in the Annan Plan i.e. investment will be protected through compensation mechanisms – much will be irreversible.
b) We said ‘Yes’ to the Annan Plan even though it entailed large territorial and property return. As the Greek Cypriots have rejected this by saying ‘No’,  they have accepted the consequences of a delayed solution.
c) The lack of any progress in the negotiations means that there is no immediate prospect for a solution and therefore no justification for freezing development and waiting. The likely second term of office for the hardliner Mr.  Papadopoulos will ensure a further unresolved  5 years – this time must be used well.
d) So long as the international community and the EU is bowing to pressure from the Greek Cypriot side to continue economic and other isolations, property development is one of the very few areas where we can achieve economic vitality.

As a result of these views it is highly unlikely that the Turkish Cypriot leadership would bend to any demand for a moratorium from the Greek Cypriot side. It would create immense opposition from all sectors of society, eliminating any political motivation to take such measures.
On the other hand, as with every boom, there is now a natural slowing down and even a recession in property development. Too many developers have tried to do too much and buyers are often dissappointed with failure to deliver. The environment is also suffering and the Turkish Cypriot government has introduced restrictions based on environmental protection.   
 
When we look at the dynamics of the property situation in Cyprus, of course legalities are of vital importance and its easy enough to just dismiss what is being done to property whether in the north or the south, as just ‘illegal’. But this is a quote used in the ECHR on Cyprus:
 
     ‘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 be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled’.

The words in this passage refers to some basic administrative matters in non-recognised de facto states such as birth death and marriage registration and some commercial transactions. However, it can be argued that when a political dispute become long, protracted and, as in Cyprus apparently unending, life will go on in the territory  and there will be more and more realities on the ground which cannot be ignored or reversed at the touch of an undo button.
This is the urgency in the need for a resolution to the Cyprus problem. Legal cases will always be an option and will have impact, but my observation is that, currently, in Cyprus property and the law have become the battle of an unproductive war between the two sides that diverts energy and will away from where it is really needed, the negotiating table.