Cyprus-Forum.com

[zan]

Observer,

What exactly is your motive? Are you trying to find a loophole to justify and promote the illegally occupied port?

Isn’t a UN resolution condemning this ENTIRE “TRNC” debacle enough for you to realize what the international community thinks and wants?

If the very existence of the “TRNC” is ILLEGAL, in accordance with the world’s highest authority the UN, then how can it be possible that anything the “TRNC” does will be legal?

If and when you are willing & able to confront common sense on this matter your queries will be gone.

Regards, GR.

My motive is to bring some precision into the discussion, instead of wide generalisations and insults which get nobody anywhere.

It was claimed that the use of Famagusta port was illegal. You and others have failed to prove that it is illegal and can not. Olli Rehn is correct.

The subject of committing a crime in one country and being extradited for it was brought up, quoting murder as an example. It is not as simple as you seem to think - you seem to believe "I make something illegal in my country and so every other country must send back the alleged criminal". Even RoC does not always send back alleged murders. See http://www.cyprus-mail.com/news/main.ph ... &archive=1 where RoC was refusing to send an alleged murderer back to USA because he might face the death penalty. I think RoC also has rules concerning extradition of its own citizens to other countries, although this may now be overridden by some EU agreements.

Making the use of Famagusta port illegal is a uniquely RoC law. It is not a law in any other country, just as banning women from driving is a uniquely Saudi Arabian law. Olli Rehn would be right in saying that it is not illegal for women to drive - he s just as right in saying that it is not illegal to use Famagusta port.

I know that it must be frustrating for you, but just because you don't like something doesn't make it illegal. So in future, before saying this and that is illegal, find a law that makes it illegal.

I think they might understand more if we take the USA state situation. They cannot even cross state lines for some crimes and the FEDs are the ones that can on others.......Using a port to feed your people amounts to a parking ticket violation as far as the international laws go and the "RoC" is just another state.........They have no jurisdiction in the TRNC/KKTC.

[Kikapu]

Observer,

I think that you are not quite right about the rules regarding clearing of ports. The rules for clearing ports are set by the governing authority in whose territory the port lies. Famagusta currently lies within the authority of the TRNC government and it is they who set the rules. Provided those rules are obeyed, no other country (save RoC) gives a legal rats arse.

Nonsense! The RoC may not be the de facto controlling authority, but of course it is the de jure authority that has the jurisdiction to sovereignly decide on the status of ports of entry, as well as other matters, in all parts of Cyprus! It may not have the power to enforce this jurisdiction in the occupied north, but it has the power to enforce its jurisdiction internationally, and you will soon (by coming June) discover it when the European Communities court will rule upon the Oram's case!

That is the whole point Observer. The fact that the RoC cannot enforce it's borders does not mean they do not own their borders. As owners of their borders, they can declare what is legal and what is not. The only problem is, enforceability. Just because some may take advantage of the lack of enforceability due to Occupation of parts of Cyprus, then it is the Occupying force who is in temporary custody of those borders and they can do as they wish, but does not make them legal custodians of those borders.

Lets just say you found a wallet full of money inside, plus the persons ID is also in the wallet. You may choose to return the wallet and the money to it's rightful owner, or throw away the wallet and the ID, once you have put the money into your pocket. Even though the money belongs to someone else, you can legally use this money to buy anything you want and no one is going refuse you to sell you anything.

Now, lets just say you have stolen that wallet and everyone knows about it. As far as the money (currency) is concerned, you can use it legally to buy anything you want. It is only the question of who you do business with, if they are willing to accept that stolen money, knowing full well, that you have stolen the money. So the money by itself is not illegal since it still remains to be a "legal tender", but it's usage may be illegal. So, it is a matter of enforcing the "usage" of that stolen money is the problem, not that the usage of stolen money itself, which is legal.

I believe that is the same case with the RoC and the ports in the "TRNC".

In all honesty this is all hyped up to be nothing more than trying to find some loop holes for Turkey to save face to open her ports to the RoC and the time is running out. I do not expect ships will be lining up to come to Famagusta to trade with the "TRNC" or vise verse. Did the coconut just now fall onto Olli's head to come to this revelation that the ports in the North are "not illegal" since since the formation of the "TRNC" 1983.! He has not said that the ports are LEGAL by the way. So what is holding him back to say that the ports are LEGAL, instead he is saying, that they are "not illegal". Is it because he does not want trouble with other countries if they decided to use Famagusta and end up being sued by the RoC, in which Olli can say, "well, I never said that the ports were LEGAL". I'm no lawyer, but in the legal world, definition of words tend to mean much more than they tend to mean in the real world.
[/quote]

[CopperLine]

Viewpoint
Sorry, but you are plain wrong about the Orams case. In summary, that case was one in which a RoC court found against the Orams but because the judgement was unenforceable in 'the occupied north' where the Orams' contested property was located, an effort was made to have the RoC judgement enforced in the UK where the Orams are citizens and, more to the point, also have property against which penalty or compensation could be claimed. So the principal issue before the English High Court was not the merits of the claimants' case against the Orams, but whether the judgement of a Cyprus court could be enforced within England and Wales. (This is NOT a matter of international law : this is a matter of the justiciability of one national court's judgement within the jurisdiction of another state). The answer of the High Court was no i.e, the judgement of a Cyprus court could not be enforced against the assets etc of people in the UK.

If Get Real wants precision, for which I applaud his wish, then let's get the principal meaning of the latest step in the Orams case precise.

[Kikapu]

Viewpoint
Sorry, but you are plain wrong about the Orams case. In summary, that case was one in which a RoC court found against the Orams but because the judgement was unenforceable in 'the occupied north' where the Orams' contested property was located, an effort was made to have the RoC judgement enforced in the UK where the Orams are citizens and, more to the point, also have property against which penalty or compensation could be claimed. So the principal issue before the English High Court was not the merits of the claimants' case against the Orams, but whether the judgement of a Cyprus court could be enforced within England and Wales. (This is NOT a matter of international law : this is a matter of the justiciability of one national court's judgement within the jurisdiction of another state). The answer of the High Court was no i.e, the judgement of a Cyprus court could not be enforced against the assets etc of people in the UK.

If Get Real wants precision, for which I applaud his wish, then let's get the principal meaning of the latest step in the Orams case precise.

CopperLine,

Please explain something to me. I understand from a layman's point of view as to why the Orams property in the UK could not have been forced to sell to pay the GC owners of the property the Orams built a house on in the "TRNC", but surely, any judgement made against the Orams in the RoC should have been enforceable in the UK, if only the RoC judgement was used as a "LIEN" on Orams property in the UK. I could have placed a "LIEN" on property on someone who owns a property in France for example, with a judgment made against them in the USA. Correct me if I'm wrong but, couldn't the judgement against the Orams could have been used as a "LIEN" on anything that they own in the UK. Is this the reason as to why the Orams may have sold off their property in the UK, to avoid any "LIENS" placed against the property in the future.

[CopperLine]

In the interests of precision what I just reported was, of course, the latest stage of the case when the Orams appealed an earlier decision to allow registration of the RoC court judgement of the Apostilides v. Orams case.

Folk may be interested in one important part of the appeal judge's reasoning :

I fully recognise the difficulty of the problem. I have concluded, however, that the correct analysis is that the effect of the Protocol is that the acquis, and therefore reg 44/2001, are of no effect in relation to matters which relate to the area controlled by the TRNC, and that this prevents Mr Apostolides relying on it to seek to enforce the judgments which he has obtained. Just as, in accordance with Mr Beazley's submission, Mr Apostolides could not rely on the acquis against his own government in connection with his human rights arising from matters relating to the area controlled by the TRNC, he cannot rely on the acquis against Mr and Mrs Orams to enforce his judgments against them. Whether or not that is right is a matter of law. But it is the answer which avoids the conflict which must otherwise arise in cases such as the present between the de facto situation in northern Cyprus and its system of law, and the enforcement of judgments such as the pre-sent against the new "owners" of Greek Cypriot property, who have assets elsewhere in the European Union. That, it seems to me, is an international problem ill-suited to be resolved by private litigation. The cases which I have cited in the European Court of Human Rights show that compensation can be obtained at a higher level of litigation, with the State of Turkey as the Defendant. They show also the development through the influence of that court of a scheme to provide compensation. These practical considerations support the conclusion that Protocol 10 is to be given the effect I have found that it should have.

Also the judge in his reasoning refers to the following (which goes some way to answering the questions asked by people about who can be prosecuted and where) :

[24] Article 2 [of the 1968 Brussels Convention, the instrument which applies in these cases] provides the primary rule as to jurisdiction, that persons domiciled in a member state shall be sued there. Article 3 provides that such persons may only be sued in another state by virtue of the rules set out in ss 2 to 7 of the jurisdiction chapter. Section 6 is headed "Exclusive jurisdiction". It consists of one Arti-cle, art 22. That provides:
"22 The following courts shall have exclusive jurisdiction, regardless of domicile:

1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated."


Paragraph 1 continues with a provision relating to tenancies. Paragraphs 2 to 5 contain provisions relating respectively to companies, public registers, patents, trade marks and so on, and the registration of judg-ments.

[25] Article 25 provides:
"25 Where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of article 22, it shall declare of its own motion that it has no jurisdiction."


Article 33.1 provides:
"33.1 A judgment given in a Member State shall be recognised in the other Member States without any special proce-dure being required."

Of course there is lots more - 17 pages in fact of close legal reasoning - but which conludes with :

OUTCOME

[69] The outcome is that the appeals of Mr and Mrs Orams are allowed.

Appeal allowed.

All text quoted from :

From Orams and another v Apostolides

Conflict of laws - Foreign judgment - Recognition and enforcement - European Union - Judgment relating to land in area controlled by Turkish Republic of North Cyprus - Whether judgment enforceable in English court - Council Regulation (EC) 44/2001 - Treaty of Accession, Protocol 10

[2006] EWHC 2226 (QB), QB/2005/PTA/0897, (Transcript)

[observer]

Observer,

I think that you are not quite right about the rules regarding clearing of ports. The rules for clearing ports are set by the governing authority in whose territory the port lies. Famagusta currently lies within the authority of the TRNC government and it is they who set the rules. Provided those rules are obeyed, no other country (save RoC) gives a legal rats arse.

Nonsense! The RoC may not be the de facto controlling authority, but of course it is the de jure authority that has the jurisdiction to sovereignly decide on the status of ports of entry, as well as other matters, in all parts of Cyprus! It may not have the power to enforce this jurisdiction in the occupied north, but it has the power to enforce its jurisdiction internationally, and you will soon (by coming June) discover it when the European Communities court will rule upon the Oram's case!

That is the whole point Observer. The fact that the RoC cannot enforce it's borders does not mean they do not own their borders. As owners of their borders, they can declare what is legal and what is not. The only problem is, enforceability. Just because some may take advantage of the lack of enforceability due to Occupation of parts of Cyprus, then it is the Occupying force who is in temporary custody of those borders and they can do as they wish, but does not make them legal custodians of those borders.

Lets just say you found a wallet full of money inside, plus the persons ID is also in the wallet. You may choose to return the wallet and the money to it's rightful owner, or throw away the wallet and the ID, once you have put the money into your pocket. Even though the money belongs to someone else, you can legally use this money to buy anything you want and no one is going refuse you to sell you anything.

Now, lets just say you have stolen that wallet and everyone knows about it. As far as the money (currency) is concerned, you can use it legally to buy anything you want. It is only the question of who you do business with, if they are willing to accept that stolen money, knowing full well, that you have stolen the money. So the money by itself is not illegal since it still remains to be a "legal tender", but it's usage may be illegal. So, it is a matter of enforcing the "usage" of that stolen money is the problem, not that the usage of stolen money itself, which is legal.

I believe that is the same case with the RoC and the ports in the "TRNC".

In all honesty this is all hyped up to be nothing more than trying to find some loop holes for Turkey to save face to open her ports to the RoC and the time is running out. I do not expect ships will be lining up to come to Famagusta to trade with the "TRNC" or vise verse. Did the coconut just now fall onto Olli's head to come to this revelation that the ports in the North are "not illegal" since since the formation of the "TRNC" 1983.! He has not said that the ports are LEGAL by the way. So what is holding him back to say that the ports are LEGAL, instead he is saying, that they are "not illegal". Is it because he does not want trouble with other countries if they decided to use Famagusta and end up being sued by the RoC, in which Olli can say, "well, I never said that the ports were LEGAL". I'm no lawyer, but in the legal world, definition of words tend to mean much more than they tend to mean in the real world.

[/quote]

Interesting, but it is really very simple,

An action is illegal if that action, and that action only, has a law against it. Apart from in RoC (possibly Greece) there is no law in any other country in the world, nor is their any international treaty against using Famagusta port.

In your example, the act of spending money is legal. The act of stealing is illegal. The two actions, although connected in life, are quite separate in law.

You may believe using Famagusta port to be immoral, indecent, wicked, depraved or offensive. That is a matter of opinion. But to say it is illegal is a matter of law. Olli Rehn was just stating a fact - I have no idea what his motives were.

[CopperLine]

Kikapu
The issue is one of enforceability and not necessarily what form of penalty/compensation/liability is enforced (which is what I understood your reference to lien to be driving at). The second thing is that, as so often, laws don't say up front what should or shoul not be done, that is to say that they cannot anticipate every possible permutation or range of actions and breaches. That is why judgement i.e,, interpretation of the law is crucial, why precedent is crucial and why the particular track of legal reasoning is crucial.

Hence in the Orams appeal case the judge basically asked 'why should an English court enforce a RoC judgement ?' The legal argument used by Apostiledis was that UK and Cyprus are both EU members and both therefore are treaty-bound to enforce judgements in each other's jursidiction across a range of criminal and civil matters. Part of the Orams' argument was that although Cyprus is an EU member, the RoC by its own request and condition of membership, did not wish EU law (the acquis communitaire) to apply to 'occupied northern Cyprus', therefore EU law, including the enforceability of judgements re 1968 Brussels Convention could not be applied to cases dealing with n. Cyprus matters. And the judge was persuaded by the second argument.

In a way in essence he was saying either the acquis does apply to n. Cyprus or it doesn't. One can't pick and choose when it applies.

In relation to a lien, again the judge is effecticely saying that he has no legal authority to impose such a charge on a foreign, non-acquis, case.

[CopperLine]

I should add that the irony is that if RoC had negotiated for the acquis to apply to all of the island, GCs would have been able to enforce their property claims throughout the EU. By not admitting n Cyprus into the EU as part of the whole deal GC ability to enforce RoC law has been yet further weakened (and perhaps permanently delayed or made impossible).

[Kifeas]

Kikapu
The issue is one of enforceability and not necessarily what form of penalty/compensation/liability is enforced (which is what I understood your reference to lien to be driving at). The second thing is that, as so often, laws don't say up front what should or shoul not be done, that is to say that they cannot anticipate every possible permutation or range of actions and breaches. That is why judgement i.e,, interpretation of the law is crucial, why precedent is crucial and why the particular track of legal reasoning is crucial.

Hence in the Orams appeal case the judge basically asked 'why should an English court enforce a RoC judgement ?' The legal argument used by Apostiledis was that UK and Cyprus are both EU members and both therefore are treaty-bound to enforce judgements in each other's jursidiction across a range of criminal and civil matters. Part of the Orams' argument was that although Cyprus is an EU member, the RoC by its own request and condition of membership, did not wish EU law (the acquis communitaire) to apply to 'occupied northern Cyprus', therefore EU law, including the enforceability of judgements re 1968 Brussels Convention could not be applied to cases dealing with n. Cyprus matters. And the judge was persuaded by the second argument.

In a way in essence he was saying either the acquis does apply to n. Cyprus or it doesn't. One can't pick and choose when it applies.

In relation to a lien, again the judge is effecticely saying that he has no legal authority to impose such a charge on a foreign, non-acquis, case.

Copper, the above is just the British court's interpretation of protocol 10 of the treaty of accession! Wait a little longer, by next June, when the EU European Communities Court will offer its own interpretation as to what protocol 10 really means, and then we may talk again. The view is that the British Court's interpretation will be overturned, simply because protocol 10 was incorporated in the treaty just in order to protect the RoC from its inability to apply the EU aqui in the north -when it is not feasibly possible to do so; and not to protect crooks of all kinds and help them escape justice, when it is feasibly possible to apply or make use of the EU aqui, such as in the Oram's case! Just be patient, and you will discover that the British court had just found the easy way out to escape from touching the hot potato, for obvious expedient political reasons! The reality, and this is proved by all the supporting documentation when protocol 10 was negotiated in the first place, is quite different, and the EU court has no other option but to evaluate it on this basis, i.e. what the spirit behind an ambiguous regulation or law was, and not the one sided “interpretations” of the British court!

[CopperLine]

Kifeas
Sure, maybe a higher court will come to a different judgement. But the situation at the moment is as I described, and not as you wished.

But then you say this is 'just the British court's interpretation....' as if that is unimportant ! On this topic people have been banging on in all sorts of generalising and vague ways about people being prosecuted in other jurisdictions and then when the only copncrete case is mentioned where this was tested in law you come along and discount it as 'just the British court's interpretation....' !!! It might be 'just the British court's interpretation....' but it is what stands at the moment, and forms a precedent judgement.

Furthermore, it is really pretty daft of you to impugn the integrity of a judgement - "the British court had just found the easy way out to escape from touching the hot potato, for obvious expedient political reasons!" - simply because you do not agree with the judgement or reasoning. There is nothing that made it self-evidently politically expedient to come to a 'no' conclusion than a 'yes' conclusion.

And what you claim was so obviously 'proved by all the supporting documentation' was clearly (a) ambiguous and (b) not definitive for the case to have gone to the highest levels of appeal. If it was so damned obvious how to interpret the law as you allege, then there would have been no need to move through the higher courts.

However, as you say, we'll see what happens next.