Cyprus-Forum.com

[observer]

As a break from the RoC election, I have been studying the Orams’s case. Although they have been on this forum interminably, much of the legal aspect has been polluted by emotion and misinformation.

Firstly, it is a common misconception that the law is concerned with justice. It is not, it is concerned with interpreting the law, and if justice occurs, it is only a bi-product.

Secondly, the Orams’ case is a civil case, not a criminal case. The Orams have not been charged with any crime. Mr Apostalides has sued the Orams claiming that the Orams house is on his property and he wants them to demolish it and pay him compensation.

Thirdly, the case before the EU courts now has little to do with the Orams. They just happen to be involved in a test case which is testing the limits of EU law. It might as well be me suing a trader in the North, in the RoC courts, over the use of weights and measures that are illegal under EU law. The fact that Mr Apostolides won his case in the RoC courts is not disputed. He must now show that EU law can be applied in the North via RoC law, and that the findings of the RoC court on immovable property can be executed by another EU country.

To win his case, Mr Apostolides has to overcome two hurdles; Protocol 10 of the ‘acquis communautaire’, and Article 22 of EU regulation 44/2001 ‘on jurisdiction and recognition and enforcement of judgements in civil and commercial matters’.

Protocol 10 says, in its entirety:

1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.

2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1.”

This means, quite simply, that EU law is not currently valid in North Cyprus.

Mr Apostolides has argued that the reason for the Protocol was to protect the RoC, and it was never intended to be used against the RoC. When judges want to know the reason behind a law, or what the law was intended for, they turn to the preamble. The preamble to Protocol 10, in its entirety, reads:

“THE HIGH CONTRACTING PARTIES.
REAFFIRMING their commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant United Nations Security Council Resolutions, and their strong support for the efforts of the United Nations Secretary General to that end,
CONSIDERING that such a comprehensive settlement to the Cyprus problem has not yet been reached,
CONSIDERING that it is, therefore, necessary to provide for the suspension of the application of the acquis in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control,
CONSIDERING that, in the event of a solution of the Cyprus problem this suspension shall be lifted,
CONSIDERING that the European Union is ready to accommodate the terms of such a settlement in line with the principles on which the EU is founded,
CONSIDERING that it is necessary to provide for the terms under which the relevant provisions of EU law will apply to the line between the abovementioned areas and both those areas in which the Government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Northern Ireland,
DESIRING that the accession of Cyprus to the European Union shall benefit all Cypriot citizens and promote civil peace and reconciliation,
CONSIDERING, therefore, that nothing in this Protocol shall preclude measures with this end in view,
CONSIDERING that such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus.”

Not a single word about protecting the RoC.

Now it is just possible that Mr Apostolides may produce a document predating the signing of the Treaty in which the RoC government said that it wanted Protocol 10 for its own protection. If so, I’m sure that the Orams can find a piece of paper from the EU enlargement commission in reply. This would only indicate that the matter had been considered, and as it was not included in the Preamble or the Protocol, the judges may come to the conclusion that the protection of the RoC was not the intent of the Protocol. It is significant that no evidence saying that this was the intent of the Protocol was produced in the Court in London.

Also, remember that the judges are not considering the Orams case, but EU law, it sets a very dangerous precedent to say that a EU member can pick and choose when the EU Accession Treaty applies to them and when it doesn’t, which is essentially what is being argued here.

However, it is not impossible that the EU court may find some form of words to get over this obstacle and find in Mr Apostolides favour, and conclude that the EU law does apply to the North when the RoC wants it to, and doesn’t when the RoC doesn’t want EU law applied.

Mr Apostolides now faces the next hurdle.

It has long been held that laws concerning immovable property can only be dealt with in the country where the immovable property is. In simple terms, property law is the law of the country in which the property is situated, it is dealt with in the law courts of the country concerned, and the country concerned executes the court’s judgements.

Article 22 of EU regulation 44/2001 ‘on jurisdiction and recognition and enforcement of judgements in civil and commercial matters’, (the regulations under which persons may be sued in another state, or a case judgement executed in another state) states under the heading Exclusive Jurisdiction: ‘The following courts shall have exclusive jurisdiction, regardless of domicile : 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’.

In simple words, a country’s property laws, judgements on property laws, and the execution of those laws are exclusively the business of the country in which the property lies. A country’s property laws are nothing to do with any other country (or the EU). If you think about it, it makes sense. Would Germany really enjoy having its property laws challenged in a Rumanian court and be forced to carry out the judgement of the Rumanian court? Would Italy want its property laws challenged in a Lithuanian court and be forced to carry out the judgement of the Lithuanian court?

Mr Apostalides is now challenging these laws and regulations.

Article 34 of the same Regulation states: A judgment shall not be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.

Remembering the part of Protocol 10 which states “DESIRING that the accession of Cyprus to the European Union shall benefit all Cypriot citizens and promote civil peace and reconciliation”, it is possible that the judges may form the opinion that a judgement leading to a blizzard of private individuals suing other private individuals is unlikely to ‘promote peace and reconciliation’.

It seems to me that the EU courts are unlikely to overturn EU regulation 44/2001, which they are not able to do anyway, although they can reinterpret it. However, when considering it, they will be bearing in mind not just the Apostolides/Orams case, but the whole of EU law as it is currently understood, applicable to all EU members.

Returning to the specific case; let us say that the EU court don’t reinterpret EU law. The law as it stands now is that Mr Apoistolides has won his case in the RoC courts, but the RoC authorities are powerless to execute it, and no other country has the authority to execute it. Provided the Orams keep their assets out of RoC jurisdiction Mr Apostolides will have spent a lot on lawyers’ fees, but as matters stand at the moment is unlikely to see any money nor see the property the Orams have possession of demolished.

If the EU courts reinterpret EU law, and rule that court judgements on property law in one EU country do have to be executed in other EU countries, then provided the Orams keep their assets out of EU jurisdiction Mr Apostolides will have spent a lot on lawyers’ fees, but as matters stand at the moment is unlikely to see any money nor see the property the Orams have possession of demolished.

However, Mr Apostolides will have opened a Pandora’s box, for if the EU courts do rule in his favour, not only will the reinterpreted law apply his case, it will also be the new rule for all EU countries for all other cases.

It will now be open for a TC owning property in, say, Paphos to take his case for repossession of his property to the RoC courts, or possibly any other EU country that he feels will give him a hearing. His lawyer will argue that the rules on residence in order to reclaim his property are discriminatory, since it is not usually necessary to even visit a country in order to buy property there. I don’t know the rules in RoC in detail, but I suspect that if I were a GC, I could inherit, buy and sell property in RoC without even visiting the place. As a TC already owning property in Paphos, my claim to ownership could not be contested by the Guardian of TC Property, whose very title indicates my right to it. Withholding my property while allowing GCs to inherit, buy and sell property without any residency requirements is clearly discriminatory. If the EU (or any EU country) could rule on immoveable properties within the RoC, which they currently cannot do because of Article 22 of EU regulation 44/2001, my claim would be an open and shut case, and the RoC authorities would have to comply under the new EU rules that Mr Apostolides wishes to have set.

Like I said right at the beginning, it is a common misconception that the law is concerned with justice. It is not, it is concerned with interpreting the law, and if justice occurs, it is only a bi-product. If I were a GC I might be praying that Mr Apostolides loses!!

At this point, I would like to say that I have no personal interest. I have never met the Orams or Mr Apostolides. I have no claim to any property in the South, nor has any GC any claim to my property or the house upon it in the North.

By way of confirmation, the actual questions which the ECJ is being asked to decide upon are here:
http://eur-lex.europa.eu/LexUriServ/Lex ... 021:EN:PDF

You will note that after the introduction, saying why the case has been brought, neither the Orams’ names or that of Mr Apostolides is mentioned. This case is now purely about the interpretation of EU law.

[pantheman]

Thanks for that, I thought it was quite interesting, however, your comments :

Like I said right at the beginning, it is a common misconception that the law is concerned with justice. It is not, it is concerned with interpreting the law, and if justice occurs, it is only a bi-product.

I find this quite bazzar, because I would have thought that any law was drafted with the aim of fulfilling justice.

Laws are not just dreamed up, but are created for a reason, and this reason must be for the greater good of the people for which it will evetually serve.

In this case the law is being contested, because I believe the judge in the UK didn't want to be the one telling all those Brits in the North that they satnd to loose their properties. He instead passed the buck (IMHO) to the EU.

Clearly, the loser here is Mr Apostolides, as the property is quite clearly his and the Orams knew EXACTLY what they were doing when they took it on.

Its quite easy to lose faith in the justice system when things like this go on.

We will just have to wait and see.

Good Luck Mr Apostolides, mainly because this is a fight between right and wrong, and MR Apostolides is in the right.

[observer]

Thank you Pantheman for your rational response.

Perhaps what I meant would be better expressed by the words ... it is a common misconception that the business of the law courts is concerned with justice. It is not, it is concerned with interpreting the law, and if justice occurs, it is only a bi-product.

It is, of course, politicians who frame the laws. It would be nice to think that their concern is with justice.

[Nikitas]

Some times it helps to go back to basics to solve seemingly complex problems.

The basics are that Apostolides owns the land on which the Orams built. No agreement or any other valid act can change this fact.

Apostolides is not suing for a remedy in REM. He wants compensation for his damage which was the deprivation of his property and the arbitrary alteration of it.

The property is in the RoC, even though it may be on territory occupied by a foreign power.

RoC courts are applying RoC land law in this case and also RoC civil law for several torts, including tresspass.

The point is whether RoC court judgement for damages can be enforced in another EU state. No one is asking for recognition of land law of Cyprus in another EU country etc. It is the order for monetary damages which is to be enforced.

These are the basics.