CM/Inf/DH(2010)36 … 2 September 20101
Cases examined by the Committee of Ministers concerning the property rights and homes of displaced Greek Cypriots
Consequences of the inadmissibility decision of the European Court of 5 March 2010 in the case of Demopoulos v. Turkey and 7 other cases
Supplementary memorandum prepared by the Department for the Execution of Judgments of the ECHR (Directorate General of Human Rights and Legal Affairs)2
Table of contents
I. Reasons why the Committee has been examining the issue of protective measures since 2006. .……p. 2
II. Why, following the Court's inadmissibility decision, no further measure is required
for the purposes of execution?..… ……………………………………………………………………………….p. 4
III. Replies to the questions raised by the Cypriot authorities (see DH-DD(2010)337 of 24/06/2010).……p. 4
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IV. Conclusion………………………………………………… ……………………………………………………p. 8
1. At their 1086th meeting (1-3 June 2010) (DH), the Ministers' Deputies examined the Secretariat's proposal to close the examination of the general measures in the cases concerning the property rights and homes of displaced Greek Cypriots, following the findings of the European Court in its inadmissibility decision of 5 March 2010 in the Demopoulos case (see the Secretariat's detailed information document on the consequences of this decision, CM/Inf/DH(2010)21 of 17 May 2010). Summing up the debate, the Chairman noted that a large number of delegations, several of which declared that they supported the position of the Secretariat, nonetheless wished to have more time to consider in greater depth the questions raised during the discussions3. He further noted that several of these delegations wished to receive additional clarification concerning whether, in the light of the Demopoulos decision, the protective measures (of an interim nature, cf. §11 below) previously considered by the Committee were still required to execute the judgment.
2. During the discussion, the Secretariat had offered to answer any questions which delegations might have on this specific point, inviting them to submit these questions to it in writing. To date, only the delegation of Cyprus has submitted questions (see DH-DD(2010)337 of 24/06/2010). With a view to the forthcoming meeting, the present information document recalls the reasons why the Committee has been examining the question of protective measures since 2006 (I) and why, following the Court's inadmissibility decision, no further measure is required for the purposes of execution (II). The document also replies to the additional questions raised by the delegation of Cyprus (III).
3. This document should be read with the information document CM/Inf/DH(2010)21, mentioned above, which was presented by the Secretariat at the 1086th meeting (June, 2010) (DH) and the explanations and answers given by the Secretariat during the meeting (see the Provisional Records of the meeting, CM/Del/Act/DH(2010)1086prov.).
I. Reasons why the Committee has been examining the issue of protective measures since 2006
4. In February 2006, the Cypriot authorities expressed concern about the fact that, according to them, the property of displaced persons was being affected either by property transfers or construction activities. Consequently, they asked the Committee to ensure that a moratorium was introduced on these transfers and construction activities. The Secretariat's information document of 28 March 2006, CM/Inf/DH(2006)6/5 revised, describes the situation at that time in detail.
5. The Cypriot authorities had then indicated that this measure had been requested of the Committee of Ministers in order to prevent aggravation of the continuing violation of the property rights of displaced persons. In the abovementioned information document prepared by the Secretariat on this subject, it was stated that the respondent state was under an obligation to put an end to the continuing violation of the property rights concerned and, in the meantime, to take measures capable of limiting as far as possible the negative effects of the violation. It was nevertheless underlined that, bearing in mind the margin of appreciation enjoyed by the respondent state in the choice of measures to be taken, the request of the Cypriot authorities that the Committee impose a specific measure was not in keeping with the Committee's practice (CM/Inf/DH(2006)6/5 revised). Consequently, the Committee did not impose the moratorium requested by the Cypriot authorities.
6. That being so, the Committee examined the measures that it could take in the light of the questions raised by the Cypriot authorities. It considered at that time that it should in any event await the outcome of the cases relating to that question pending before the Court before reaching a decision on the merits4. Nevertheless, as the Court had already emphasised that the system of redress must not exclude all possibility of restitution, it did seem that clarifications were necessary about the current situation of the properties of displaced persons, in order to ensure that, in a certain number of hypotheses, the possibility of restitution would be preserved (see CM/Inf/DH(2006)6/5 revised, p. 5).
7. Thus, since June 2006, the Committee has regularly asked the Turkish authorities to provide detailed and concrete information, on one hand, about transfers of and changes to the property which is the subject of the Cyprus v. Turkey judgment, as well as, on the other hand, about measures to safeguard the property rights of displaced persons (see inter alia Interim Resolution CM/ResDH(2007)25 adopted in April 2007 in the case of Cyprus v. Turkey).
8. On this latter point, the Court’s judgment in the Xenides-Arestis case, which became final in May 2007 did not permit the Committee to adopt a definitive position on the substantive measure taken by the respondent state, namely the mechanism of restitution, exchange and compensation. That was due to the fact that the Court had indicated in the judgment that it had not been able to examine in detail all the relevant issues concerning the effectiveness of the mechanism in question even if this mechanism, “in principle”, had taken care of the requirements formulated in the admissibility decision of 14 March 2005 and in the judgment of 22 December 2005. Consequently, the issue of protective measures remained relevant for the execution of the judgments under examination.
9. In 2008, at the Committee's request, the Secretariat prepared an information document with a view to clarifying the issues relevant to the execution of the judgment in this respect (CM/Inf/DH(2008)6/5). The Committee welcomed this information document and invited the Turkish authorities to provide replies to the four questions raised in this document (see the decision adopted at the 1020th meeting (DH), March 2008).
10. This information document in question emphasised that it was not essential to request a detailed list of "changes and transfers of property at issue in the judgment and [of] measures taken or envisaged regarding this situation”, but that it was important to obtain information on the specific questions raised. The purpose of these questions was to allow the identification of concrete measures aimed at ensuring that awaiting the evaluation of the new restitution, exchange and compensation mechanism, the possibilities of restitution offered by this mechanism are guaranteed. This was clearly stated in the information document in question, as well as in notes on the Agenda since the June 2008 meeting.
11. Moreover, it should be noted that the issue of protective measures initially appeared on the Committee's agenda under the heading of "need for interim measures" (see notes for the meetings of March 2008, June 2008 and September 2008). Subsequently, interim measures were presented under the heading of "protective measures", a fact which does not affect their provisional nature. The interim nature of these measures is clear from a number of the decisions adopted by the Committee. The following appears, for example, in the decision adopted in the Cyprus v. Turkey case at the meeting of December 2009 (1072nd meeting):
Concerning the property rights of displaced persons
6. recalled that the European Court is currently seised of the question of the effectiveness of the mechanism of restitution, exchange and compensation established in the northern part of Cyprus and considered that the Court’s conclusions on this point might be decisive for the examination of this question;
7. recalled that in the meantime it is important that all possibilities of settlement offered by the mechanism, in particular on restitution of property, are preserved (protective measures);
12. The Committee insisted that the Turkish authorities respond to the questions raised by the 2008 information document until the Court issued its inadmissibility decision in the Demopoulos case.
13. In its inadmissibility decision, the Court made a detailed assessment of the restitution, exchange and compensation mechanism set up by the respondent state. It considered that it is an accessible and effective mechanism of redress in respect of complaints about interference with the property owned by Greek Cypriots. Furthermore, it rejected the criticism that only a small proportion of the property would in practice be eligible for restitution under the new mechanism.
14. From the endorsement of the restitution, exchange and compensation mechanism by the Grand Chamber it appears that in order for the possibility of restitution under this mechanism to remain unaffected by transfers of property or construction activities, it is for the owners concerned to avail themselves of the proceedings before the Immovable Property Commission. Consequently, the examination of the issue of the protective measures is no longer necessary for the purpose of the execution of the judgments in question.
II. Why, following the Court's inadmissibility decision, no further measure is required for the purposes of execution?
15. The violations of the right to respect for the homes and property rights of displaced Greek Cypriots found by the Court concern only a limited number of persons: those Greek Cypriots who left the northern part of Cyprus in 1974 and who, since that date, have been denied access to their properties situated in that part of the island.
16. The Grand Chamber found in its decision declaring inadmissible the application in the Demopoulos case that there was now an accessible and effective framework of redress in respect of complaints about interference with the property owned by this group of persons (cf. §127 of the decision). The displaced Greek Cypriots can therefore apply to the Immovable Property Commission and either obtain restitution or compensation for their property or receive a property situated in the south in exchange. They can also claim compensation for the damage suffered.
17. In other words, all the persons concerned by the judgments under examination have a system of redress available to them which is capable of putting an end to the continuing violation of their property rights, as identified by the Court. Therefore, no additional measure, of a protective or any other nature, appears necessary for the purposes of execution. Indeed, if all the persons concerned by the judgments under examination can obtain adequate redress for the violations of their property rights, what purpose would be served by the adoption of additional protective measures, and to whom would these apply?
18. Furthermore, the Secretariat considers that it would not be justified to require alternative measures be introduced for the benefit of those displaced Greek Cypriots who might decide not to apply to the Immovable Property Commission awaiting a political solution. In this respect, the Secretariat has already noted that, if the measure proposed by the respondent state is such as to put an end to the violations found and, where applicable, prevent new violations, the state has discharged its obligations in pursuance of Article 46 of the Convention, and other measures cannot be required for the purposes of execution.
19. Finally, considering that only the situation of persons, who left northern Cyprus in 1974, in a quite specific historical context, falls within the scope of the execution of the judgments under examination, it is barely conceivable that new facts could arise capable of creating a situation similar to that which gave rise to the judgments of the Court under examination. Consequently, no additional measure to prevent new violations is required for the purposes of execution.
III. Responses to the questions raised by the Cypriot authorities
20. The questions submitted by the delegation of Cyprus are reproduced below, followed by the Secretariat's replies.
“1. Does Turkey’s obligation, arising under Article 46(1) of the Convention, to take general measures to abide by the Grand Chamber’s judgment of 10 May 2001 in Cyprus v Turkey (finding continuing violations of the Convention rights of displaced Greek-Cypriots as regards their property and homes in the occupied part of Cyprus) include an obligation of result to prevent an aggravation of existing and continuing violations and/or new violations by Turkey and its agents of those Convention rights which result or may result in serious and significant detriment to the rights of displaced Greek-Cypriot owners?”
21. The respondent state's obligation under Article 46§1 of the Convention to take general measures entails an obligation to put an end to the continuing violations found by the Court and to prevent new violations. In the present case, the respondent state is under an obligation to put an end to the continuing violations of the rights of displaced Greek Cypriots as regards their property and homes and, awaiting the adoption of general measures to this effect, to take measures capable of limiting as far as possible the negative effects of the violation (cf. §5, above). Given that it is barely conceivable that violations similar to those which gave rise to the findings of violations by the Court might occur in the future (cf. §19 above), the Turkish authorities are not under an obligation to take measures to prevent such violations.
“2. If so, must this obligation be given practical meaning and effect through appropriate general measures and administrative practices to prevent an aggravation of existing and continuing violations and/or new violations of those Convention rights which result or may result in serious and significant detriment to the rights of displaced Greek-Cypriot owners?”
22. The respondent state's obligation under Article 46§1 was fulfilled in the present case through the introduction of a restitution, exchange and compensation mechanism. According to the Grand Chamber's assessment in its decision in the Demopoulos case, this is an accessible and effective mechanism of redress in respect of complaints about interference with property owned by Greek Cypriots. The Secretariat has already pointed out that each of the forms of redress for which this mechanism provides (restitution, exchange, compensation, or in some cases a combination of these possibilities) is capable of putting an end to the continuing violations of the property rights in question5. Consequently, the respondent state has discharged its obligation to take measures to put an end to the continuing violations and therefore to their aggravation.
“3. Is the obligation under Article 46(1) to take general measures separate and distinct from the obligation under Articles 13 and 35(1) of the Convention to provide effective domestic remedies for claims of violation of Convention rights?”
23. Paragraphs 27 to 32 reply to this question.
24. In addition, the Secretariat has already noted that the system of redress set up in the northern part of Cyprus represents both a domestic remedy enabling the owners concerned to challenge the infringements of their property rights and a substantive measure capable of putting an end to the violations which come within the ambit of execution.
“4. When the competent State has chosen the means to implement Article 46(1), are the CM DH, in their supervisory capacity, under a duty to monitor the measures taken for the execution of the Court’s judgment in Cyprus v Turkey, so as to assess the effectiveness of the measures, including assessing whether the measures taken are likely to prevent an aggravation of existing and continuing violations and/or fresh violations similar to those found by the Court in its judgment?”
25. The reply to this question is undoubtedly yes. That being so, the Committee is required to ensure that the execution measures chosen by the respondent state are appropriate and "compatible with the conclusions set out in the Court's judgment" (see inter alia the judgment in the case of Scozzari and Giunta of 13 July 2000, §249). In its decision Demopoulos, the Court itself has evaluated the effectiveness of the measure set up to conclude as follows: “The Court finds that Law 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots…. It is satisfied that Law 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court's competence to resolve” (§127 of the decision).
“5. If not, what is the nature and extent of the CM DH’s duty in performing their supervisory functions in the matter?”
26. See the reply to question 4.
“6. In the admissibility proceedings in Demopoulos and Others v Turkey, was the central issue whether “Law 67/2005” provides an accessible and effective framework of redress in respect of complaints of interference with the property and homes owned by Greek Cypriots, so as to require the exhaustion of the domestic remedies there provided, in accordance with Article 35 of the Convention?”
27. The reply to this question falls within the competence of the Court. The Secretariat would nevertheless recall that, even though it is an inadmissibility decision, the Court decided the substantive issues relevant for the execution of the issue of property rights and homes of displaced Greek Cypriots.
28. It should be further noted that, in its Demopoulos decision, the Grand Chamber stated in its preliminary remarks that the framework within which it would rule on the admissibility of the applications concerned was that of the pilot judgment procedure begun by the Xenides-Arestis judgment (§§80-82 of the Demopoulos decision). It noted that the eight applications under examination are the first applications not yet declared admissible to be examined following the pilot-judgment procedure in Xenides-Arestis v. Turkey.
29. It is important to emphasise that, during the Xenides-Arestis pilot judgment procedure, the Court took the view, from the perspective of Article 46 of the Convention, that "the respondent state must introduce a remedy which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005" (§40 of the judgment in the case of Xenides-Arestis v. Turkey, 22 December 2005).
30. The Grand Chamber also stated in its preliminary remarks in the Demopoulos decision that, although the Chamber had concluded in the Xenides-Arestis case that the remedy set up by Turkey seemed to be adequate, its judgment did not include a detailed analysis of the points of principle and interpretation of the Convention raised by the parties. It added that it would determine the issues in this case taking full account of the submissions of the parties and the principles laid down in its case-law as to the interpretation of the Convention.
31. Moreover, it should be kept in mind that the Committee itself indicated that the Court was seised of the question of the effectiveness of the restitution, exchange and compensation mechanism established in the northern part of Cyprus, and that its conclusions on this point might be decisive for the examination of the issue of the property rights of displaced Greek Cypriots. The Committee consequently decided to resume examination of the measures concerning this issue once the Court had given its ruling on the matter (see inter alia the decision adopted in the case of Cyprus v. Turkey at the 1059th meeting, in June 2009).
32. Finally, the Secretariat recalls that in the Committee of Ministers’ practice, inadmissibility decisions are frequently used to give decisive indications as to the effectiveness of various execution measures.
“7. If not, what was the central issue in those proceedings?”
33. See the reply to question 6.
“8. Did the Grand Chamber make any findings in Demopoulos (as distinct from referring in its admissibility decision to arguments by the parties) as to whether Turkey has complied with its obligation under Article 46 (1) of the Convention to prevent an aggravation of existing and continuing violations and/or new violations of the property and homes rights of displaced Greek-Cypriot owners?”
34. Not formally. However, the Grand Chamber found that, in setting up the Immovable Property Commission, the respondent state had established a body capable of providing effective redress in respect of complaints about interference with the property owned by Greek Cypriots. As already indicated above, this conclusion was reached in the context of a pilot judgment procedure which has direct implications for the application of Article 46 by the Committee. The Secretariat has already made proposals in this respect (see the information document CM/Inf/DH(2010)21 presented at the 1086th meeting (DH) June 2010). It is now for the Committee to draw its conclusions.
“9. If so, what were those findings?”
35. See the reply to question 8.
“10. Does the Grand Chamber’s admissibility decision in Demopoulos, when taken together with the Grand Chamber’s judgment in Cyprus v Turkey, mean that Turkey and its agents are free, as a matter of Convention law, actively to encourage or facilitate the sale or commercial exploitation by, or transfer to, third parties, of the property and homes in northern Cyprus of displaced Greek-Cypriot property owners, without restraint, and regardless of serious and significant detriment caused or likely to be caused to such owners by such actions?”
36. See the reply to question 13.
“11. If so, where in the operative part of the Demopoulos admissibility decision is this outcome stated and declared?”
37. See the reply to question 10.
“12. Having regard to the Grand Chamber’s findings in Cyprus v Turkey that there had been continuing violations of Article 8 of the Convention and of Article 1 of Protocol No.1, does it constitute a further aggravation of such violations and/or a new violation of Convention rights and obligations for Turkey and its agents actively to encourage or facilitate the sale or commercial exploitation by, or permanent transfer to, third parties of the property and homes in the occupied part of Cyprus of displaced Greek-Cypriot owners, without restraint and regardless of serious and significant detriment caused or likely to be caused to such owners by such actions?”
38. See the reply to question 13.
“13. Has the information already given to the CM DH by the Republic of Cyprus shown, at least prima facie, the existence of a continuing practice by Turkey and its agents of actively encouraging or facilitating the sale or commercial exploitation by, or permanent transfer to, third parties of the property and homes in northern Cyprus of displaced Greek-Cypriot owners, sufficient to warrant calling on Turkey to provide information on whether there is such a practice and, if so, whether and, if so, what measures are being taken to bring it to an end?”
39. Questions 10, 11, 12, 13 and 16 overlap extensively. These questions go beyond the strict framework of execution of the judgments. The Committee has never examined the question of the existence of the alleged practice in the abstract. Since 2006, its principal concern was to ensure that, awaiting the evaluation of the new restitution, exchange and compensation mechanism, the possibility of restitution was preserved in a certain number of hypotheses. The Demopoulos decision responded to this. From now on, the owners concerned have at their disposal a mechanism of redress considered as effective by the European Court. Moreover, the Court clearly rejected "criticism […] made of an allegedly overly-restrictive approach to restitution of possession of property to their Greek-Cypriot owners” (§§110 and 119 of the decision).
40. Furthermore, the question of the existence of “a continuing policy and practice to prevent the return of Greek Cypriots, reinforced by sale and development of their land” was raised by the applicants in the Demopoulos case (§58 of the decision). The Grand Chamber replied to this argument in very clear terms. It emphasised that “[the] situation has changed…[and that]...there is now legislation which seeks to provide a mechanism of redress and which has been interpreted so as to comply with international law, including the Convention” (§90 of the decision).
“14. Has Turkey provided the Secretariat with information as to whether or not such a practice is being maintained, and whether the practice is prohibited?”
41. No. See the reply to question 13.
“15. If so, what is the nature and content of this information?”
42. See the reply to question 14.
“16. Does the “Immoveable Property Commission” have the power, proscribed by “trnc law” to require Turkey and its agents to cease to operate such a practice?”
43. See the reply to question 13.
“17. If so, what are the relevant provisions of “trnc law”?”
44. See the reply to question 16.
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45. It flows from the findings of the Grand Chamber in its Demopoulos decision that no further measure is required for the execution of the cases under consideration, concerning first, the home and other possessions of the displaced Greek Cypriots, and second the existence of an effective remedy in this respect.
1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
2 The first information document on this subject was drawn up for the 1086th meeting (June 2010)(DH), CM/Inf/DH(2010)21.
3 See the Chairman's summing-up in the case of Cyprus v. Turkey.
4 The Committee has regularly underlined the necessity of not interfering with the ongoing judicial process before the Court in the Xenides-Arestis case and not to pre-empt or influence in any way the assessment of the mechanism set up by the respondent state which the Court would be called on to make in that context (see, for example, the decision adopted by the Committee at its 976th meeting (DH), October 2006).
5 For more detail, see the Secretariat’s interventions at the 1086th meeting (June 2010), CM/Del/Act/DH(2010)1086prov.