CM/Inf/DH(2008)6/5 22 February 20081
Case of Cyprus against Turkey, judgment of 10/05/01 –
Grand Chamber – Home and property of displaced persons
Memorandum prepared by the Secretariat of the Department for the execution of judgments of the ECHR (DG-HL) – Version updated for the 1020th meeting (4-6 March 2008)
The purpose of this document is to summarise the information received by the Deputies within the framework of the examination of this case concerning offences against the home and property of displaced persons (violations of Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention). It is also aimed at clarifying the questions relevant for the full execution of the judgment f the European Court, in accordance with the decision adopted by the Committee of Ministers at the latest examination of the case (1013th meeting, 3-5 December 2007).
Table of contents
Court’s findings §§1 to 3
I. General measures taken or envisaged to put an end to the continuing violations found
by the Court §§4 to 18
A. Information/observations submitted by the Turkish authorities §§4 to 7
B. Information/observations submitted by the Cypriot authorities §8
C. First assessment of the Committee §§9 to 11
D. Recent information/observations submitted by the Turkish authorities §§12 to 14
E. Comments of the Secretariat §§15 to 18
II. Questions linked to the need to secure the property rights of displaced Greek Cypriots §§19 to 46
A. Information/observations submitted by the Cypriot authorities §§19 to 27
B. Information/observations submitted by the Turkish authorities §§28 to 34
C. First assessment of the Committee §§35 to 38
D. Comments of the Secretariat §§39 to 46
- Continuing violation of Article 8 (right to respect for home)
- Continuing violation of Article 1 of Protocol No. 1 (protection of property)
- Violation of Article 13 (right to an effective remedy)
1. The Court found a continuing violation of Article 8 of the Convention concerning the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus (§175). In view of this finding, the Court stated that it was not necessary to examine whether there was a further violation of this provision concerning the alleged manipulation of the demographic and cultural environment of the displaced persons’ homes in northern Cyprus. As regards the applicant Government’s submission that the continuing refusal to allow displaced Greek Cypriots to return to the north violated their right to respect for their family life, the Court considered it appropriate to examine these submissions in the context of the allegations in respect of the living conditions of the Karpas Greek Cypriots.
2. Furthermore, the Court considered that there was a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights (§ 189).
3. The Court also found a violation of Article 13 concerning the failure to provide Greek Cypriots not residing in northern Cyprus with any remedy to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1 (§194). It found that it was not necessary to examine whether in this case there had been a violation of Article 14 taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 or whether the facts alleged in this context also gave rise to a breach of Article 3 of the Convention. Finally, it stated that it was not necessary to examine the complaints raised by the applicant government under Articles 17 and 18, having regard to the conclusions which it had reached with respect to Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.
I. General measures taken or envisaged to put an end to the continuing violations found by the Court
A. Information/observations submitted by the Turkish authorities
4. During the examination of this issue by the Committee in 2003, the Turkish authorities provided information concerning the 2003 “Law on Compensation for Immovable Properties Located within the Boundaries of the “TRNC”, as well as on the composition of the “Immovable Property Determination, Evaluation and Compensation Commissions” set up thereafter and their rules of procedure.
5. On 14 March 2005, the European Court considered in its admissibility decision in the case of Xenides-Arestis v. Turkey, that the mechanism for compensation provided by this law could not be regarded as an “effective” or “adequate” remedy for redressing the applicant's complaints, in particular due to the limited possibilities for restitution and to the fact that only compensation for pecuniary damage was foreseen.
6. In a memorandum submitted on 23 November 20062, the Turkish authorities provided information on the new 2005 “Law for the Compensation, Exchange and Restitution of Immovable Properties”, as well as on the composition and the rules of procedure of the “Immovable Property Commission”, established under this law. The Turkish authorities underlined that this new mechanism was created in response to the above mentioned admissibility decision and to the judgment of 22 December 2005 in the Xenides-Arestis case. They recalled that in this judgment the European Court considered that Turkey must introduce a remedy, which secures genuinely effective redress for the violations of Article 8 of the Convention and Article 1 of Protocol No. 1 found in this judgement in relation to the present applicant as well as in respect of all similar applications pending before the Court.
7. The Turkish authorities consider that the European Court approuved subsequently the compensation mechanism. Indeed, in its judgment on the application of article 41 in the case of Xenides-Arestis of 7 December 2006, which became final on 23 May 2007, the Court found that “the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”. The Turkish authorities based their position aslo on the fact that in this judgment the Court determined the amount of the just satisfaction “formally in accordance” with the proposal made to the applicant by the “Immovable Property Commission”3.
B. Information/observations submitted by the Cypriot authorities
8. The Cypriot authorities consider that neither the efficacy of the “Immovable Property Commission” nor its compatibility with the European Convention on Human Rights have been established yet by the European Court. Even if the Court found in the Xenides-Arestis case that the new compensation and restitution mechanism set up in the north of Cyprus, “in principle”, has taken care of the requirements of the admissiblity decision and the judgment on the merits in this case, the Court aslo pointed out that it could not examine the numerous issues raised by this mechanism and by the mandate of the “Commission”4.
C. First assessment of the Committee
9. On several occasions the Committee underlined the necessity not to interfere with the current ongoing judicial process before the Court in the Xenides-Arestis case and not to pre-empt or influence in any way the assessment the Court will be called on to make in that context5.
10. Once the judgment of the Court on the application of Article 41 in the case of Xenides-Arestis became final, the Committee took note of the finding of the Court according to which “the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”. It observed furthermore, that the Court did not address in detail all the relevant issues of the effectiveness of this remedy due to the fact that the parties had failed to reach an agreement on the issue of just satisfaction6.
11. In these circumstances the Committee called upon the Turkish authorities to provide all additional information on the functioning of the new compensation and restitution mechanism set up in the north of Cyprus, as well as on the concrete results achieved in this context.
D. Recent information/observations submitted by the Turkish authorities
12. The Turkish authorities recalled that the “Immovable Property Commission” became operational in March 2006. The number of applications lodged with the “Commission” increased from 100 in 2006 to 297 in 2007. In early 2008, the total number of applications reached 302. In 267 cases, the applicants had asked for monetary compensation to the value of their property, and in 14 cases for an exchange of property.
13. Furthermore, the “Commission” has concluded 32 friendly settlements, of which 5 concern claimants who have pending applications before the European Court.
These friendly settlements stipulate:
- in three cases, the restitution of the property at issue;
- in one case, restitution “once the Cyprus problem has been solved”;
- in 26 cases compensation in the amount of the current value of the property and
- in 2 cases the exchange of property.
14. The Turkish authorities indicated that when the agreement stipulates the restitution “once the Cyprus problem has been solved”, any construction or improvement of the property at issue is frozen until the effective restitution. The concluded agreements also included compensation for the loss of use of the properties since 1974. The “TRNC Parliament” extended the deadline for seizing the “Commission” until 22 December 2009.
15. The mechanism proposed by the Turkish authoriries as a general measure in this case raises questions which are presently examined by the European Court, in particular within the framework of the pilot judgment procedure set up in the judgment of Xenides-Arestis of 2005. It should be recalled in this respect that pending the implementation of the relevant general measures, as indicated in the judgment of Xenides-Arests, the European Court adjourned its consideration of all similar applications (see §50 of the judgment of 22 December 2005). Considering the absence of a friendly settlement in the case of Xenides-Arestis, the Court did not have the opportunity to examine in detail all relevant issues concerning the effectiveness of the restitution and compensation set up in the north of Cyprus. In this situation it could be expected that the Court pursue the examination of certain number of similar applications in view of carrying out the necessary evaluation.
16. It should be noted in this respect that in about thirty cases in which the complaints submitted have been declared admissible, the Court requested the applicants, in January 2008, to provide information on any recent developments. In addition, in two other cases, the European Court is expected to deliver its judgments on the application of Article 41.
17. It is also observed that several friendly settlements concluded by the “Immovable Property Commission” concern applicants whose cases are pending at present before the European Court (see §13 above). It cannot be excluded that on this occasion the Court may decide to examine more in detail the efficacy of the remedy proposed by the Turkish authorities.
18. In these circumstances, the Committee could wish to wait for the Court’ examination of these issues before continuing its own examination in this respect. In the meantime, the Committee could maintain its request for receiving regurlarly information on the functionning of th new compensation and restitution mechanism, set up in the north of Cyprus, and on the concrete results achieved in this context.
II. Questions linked to the need to secure the property rights of displaced Greek Cypriot
A. Information/observations submitted by the Cypriot authorities
19. In a memorandum of 31 January 20067, the Cypriot authorities recalled in particular that in 2002, the “TRNC authorities” allowed the current possessors of properties located in the north of Cyprus to “transfer” such properties to third parties. The Cypriot authorities underline in this respect that the “Annan Plan”, submitted the same year by the Secretary General of the United Nations, de facto encouraged the development of this situation by restricting the right to restitution of the lawful property owners.
20. The Cypriot authorities also referred to a large volume of “sales” and construction in the northern part of Cyprus which have been constantly increasing since several years. In Spring 2005, it was reported that the “TRNC authorities” were accelerating the issuing of “building permits” and “licences” for the “purchase” of property by foreigners, publicly “guaranteeing” these investments and offering tax advantages.
21. The Cypriot authorities expressed the opinion that it falls under the Committee’s responsibility to put an end to this situation which constitutes an aggravation of the continuing violations found by the Court and a further prejudice to the rights of displaced persons. They thus called on the Committee of Ministers to require from the Turkish authorities the urgent introduction of a moratorium on the exploitation and “transfers” of Greek-Cypriot properties and, in order to render that moratorium more effective, to call on them to consent to carry out as soon as possible an internationally supervised census to ascertain the current usage of immovable properties belonging in 1974 to displaced persons.
22. In a memorandum submitted on 6 June 20068, the Cypriot authorities requested the Committee of Ministers to call upon the Turkish authorities to provide clarifications on the present situation of the property of Greek Cypriots in northern Cyprus, as well as on the measures taken or envisaged with regard to this situation.
23. Furthermore, the Cypriot authorities provided information on recent developments concerning the volume of “sales”, construction and “investment” in the northern Cyprus during the last few years, reported mainly by Turkish and Greek Cypriot newspapers9.
24. In a memorandum submitted on 27 November 200610, the Cypriot authorities expressed concern about the fact that such “sales” and constructions are adversely affecting the homes and property of Greek Cypriot displaced persons. They called on the Committee of Ministers to instruct the Secretariat to prepare a draft interim resolution on this issue. The Cypriot authorities consider that the interim resolution should express deep concern about the situation related to Greek Cypriot property in the north and call upon the Turkish authorities to provide precise information on this situation and on measures envisaged or taken to remedy it.
25. Additional information on the expansion of the construction sector in the north of Cyprus was provided in June 2007. In the opinion of the Cypriot authorities, the “construction boom” after 2004 results from a decision of the Turkish authorities to implement unilaterally the provisions of the “Annan Plan”, according to which one of the cases where the restitution of the properties would not be allowed concerns the case of substantial increase of the property’s value due to its improvement. The authorities consider that such a provision is in itself contrary to the European Convention on Human Rights.
26. In November 2007, the Cypriot authorities submitted two memoranda containing press clippings from Turkish Cypriot media relating in particular to the realisation of infrastructure and investments projects in the north of Cyprus, more specifically in the area of tourism11.
27. According to these press clippings, title deeds on plots of land situated in the north, including on agricultural land, appear to have been issued to children of Turkish Cypriot fighters (in 1986, 1987 and 1990) and to families coming from the south of Cyprus, from Turkey or from the “TRNC” (since 1977). Some of the press clippings mention the current examination by the “TRNC” of a draft law aimed at allowing persons who abandoned property in the south to buy the property they have in their possession, belonging to displaced Greek Cypriots. According to another, immovable property belonging to Greek Cypriots had been sold to a medical centre and to a foreign company.
B. Information/observations submitted by the Turkish authorities
28. In October 2006 (at the 976th meeting), the Turkish delegation informed the Committee about the current state of the economy in the “TRNC” and the general influence thereof on the property and construction market. They added that construction development was not concentrated on Greek Cypriot properties, but that the contrary was the case.
29. In a memorandum of 30 November 200712, the Turkish authorities submitted information on the development of the “TRNC” economy and on different factors which played an important role in the expansion of the construction sector, in particular the growth of the sectors of tourism and education.
30. The Turkish authorities also indicated that the well established practice of the “Immovable Property Commission” shows that the new restitution, compensation and exchange mechanism set up in 2005 offers an effective remedy to the displaced Greek Cypriots who have a preference for the restitution of their property situated in the north. The characteristics of the property in question which are relevant for the determination of whether this property may be subjected to restitution or not are evaluated at the time of the submission of the application to the “Commission” (for example the existence of a substantial improvement of the property which excludes the possibility for restitution)13.
31. As regards the persons who apply for exchange of property or for compensation, no change or transfer of property would pre-empt the result of the application with the “Commission”.
32. Furthermore, according to the provisions of the “Law for the Compensation, Exchange and Restitution of Immovable Properties” of 2005, when the “Commission” adopts a decision providing for the restitution of a given property “after the solution of the Cyprus issue”, any sale, improvement or construction relating to this property should be forbidden as of the date of this decision14.
33. The Turkish authorities also specified that in accordance with the “Law on Acquisition of Immovable Property (by foreigners)”, any transfer of immovable property to foreigners require a prior authorisation of the “Council of Ministers of the TRNC”.
34. In conclusion, in the opinion of the Turkish authorities a request for additional measures would be disproportionate to the present situation and would be aimed only at the political and economic isolation of the Turkish Cypriots.
C. First assessment of the Committee
35. In response to the concerns expressed by the Cypriot authorities, the Committee considered that clarifications were needed on the present situation of the property of displaced persons and on the measures taken or envisaged to remedy this situation.
36. Detailed and concrete information on changes and transfers of property at issue in the judgment and on the measures taken or envisaged regarding this situation has been regularly requested since June 2006.
37. In the interim resolution adopted in this case during its examination in April 2007, the Committee found that the responses provided do not yet clarify this issue and urged the Turkish authorities to provide without delay information on measures taken to safeguard the property rights of Greek Cypriot displaced persons, without prejudice to the redress required by the Convention, be it restitution, compensation, exchange or otherwise (see the interim resolution CM/ResDH(2007)25).
38. In October 2007, the Committee once again invited the Turkish authorities to provide without delay the information requested in the interim resolution. At the latest examination of this case, in December 2007, the Committee noted the information provided still does not answer its request and instructed the Secretariat to clarify the questions relevant for the full execution of the judgment as regards the property rights of the displaced persons.
D. Comments of the Secretariat
39. As regards the situation described by the Cypriot authorities, it should be recalled that the obligation of each State to abide by the judgments of the European Court, arising from Article 46§1 of the Convention, includes the obligation to adopt general measures aimed at preventing new violations of the Convention similar to those found by the European Court, including – if appropriate – to take measures capable of limiting as far as possible the negative effects of the violations pending the effective implementation of the envisaged reforms.
40. Concerning the efficacy of the general measures, it is for the respondent state to ensure that the remedies set up are not jeopardised by other measures and that they remain workable in practice.
41. In this respect, it should be noted that the mechanism proposed by the respondent state as a general measure in this case provides the possibility for immediate restitution of property whose possession and whose title deed have been “transferred” to the “state” (apart from some exceptions). As to the possibility of restitution “after the settlement of the Cypriot problem”, it does not apply in particular in cases of substantial improvement of the property, of authorisation of a project envisaging such improvement or of acquisition of property by refugees from the south. The existence of a substantial improvement or of an authorised project is taken into account as of the date on which the application is lodged with the “Immovable Property Commission”.
42. It should be also underlined that the obligation for a claimant to seize the “Commission” in order to obtain adequate redress for the violation of his rights will depend on the final evaluation of the mechanism in question. However, the efficacy of this mechanism has not been examined in detail for the time being.
43. Consequently, failing to lodge an application with the “Commission”, the displaced persons entitled to property rights in the north of Cyprus could rightfully fear being deprived of the possibility which would be offered to them in application of the “Law” of 2005 through transfer or improvement of property taking place at present.
44. Measures appear indeed to be required with the aim of ensuring that at least the possibility offered by the mechanism proposed as a remedy is guaranteed. Therefore, it is important to avoid that transfer or substantial improvement of property could foil the possibility for restitution provided for in the “Law” of 2005.
45. In this context, it would be in keeping with the Committee’s practice to request that the Turkish authorities furnish clarifications in this respect.
· Information would be useful in particular on:
- the different types of title deeds existing in the north of Cyprus15;
- the real estate projects or the transfers of property as regards property “belonging to the state”;
- the conditions for attribution of new title deeds to displaced Turkish Cypriot refugees from the south.
· Clarification would be also appreciated as to whether, when the competent authorities grant planning permission, they take into account the category of title deed concerned and in particular verify whether the property in question is concerned by the remedies foreseen in the “Law on Restitution and Compensation”.
46. In conclusion, it is not essential to request detailed listing of “changes and transfers of property at issue in the judgment and [of] measures taken or envisaged regarding this situation”, but to obtain information on the specific issues underlined in paragraph 45 above. These appear to be the most relevant to allowing full execution of the judgment of the European Court in the present case.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 Distributed to all Delegations on 27/11/06 (DD(2006)664)
Note 3 See the memorandum of the Turkish authorities of 30/11/07, distributed to all Delegations on 03/12/07 (DD(2007)656)
Note 4 See in particular the appendix to the memorandum of the Cypriot authorities of 04/06/07, distributed to all Delegations on 04/06/07 (DD(2007)347).
Note 5 See the decisions adopted by the Committee at its 976th (October 2006) and 982nd (December 2006) meetings, as well as the Interim Resolution adopted in April 2007 (CM/ResDH(2007)25).
Note 6 See the decision adopted by the Committee at its 997th meeting (June 2007).
Note 7 Distributed to all Delegations on 31/01/06 (DD(2006)36).
Note 8 Reference DD(2006)352
Note 9 See the memorandum submitted on 13/10/06, distributed to all Delegations on 13/10/06 (DD(2006)574).
Note 10 Distributed to all Delegations on 29/11/06 (DD(2006)672).
Note 11 Memorandum of 27/11/07, distributed to all Delegations on 29/11/07 (DD(2007)636) and memorandum of 30/11/07, distributed to all Delegations on 03/12/07 (DD(2007)647).
Note 12 Distributed to all Delegations on 03/12/07 (DD(2007)646).
Note 13 See the memorandum of 30/11/07, quoted above.
Note 14 See the memorandum of 23/11/06, quoted above.
Note 15 It appears, according to commercial websites offering acquisition of property in the north of Cyprus that there are different forms of title deeds in accordance with the different categories of holders of the property rights before 1974 (for example, Turkish Cypriot or foreign holders, Greek Cypriot holders etc). See, for example, the website http://www.wellestates.com/north_cyprus_title_deeds.htm