Today's Zaman, 10.03.2010
http://www.todayszaman.com/tz-web/102-o ... engiz.html
European court’s judgment on Cyprus issue legally wrong, politically correct
Let’s be honest. The European Court of Human Rights’ latest verdict on property cases brought by Greek Cypriot citizens against Turkey is not legally correct. But, at the same time, it is politically wise.
Before discussing its political implications, I should first explain why I think this judgment is legally wrong. The European Court of Human Rights is an international human rights court that produces precedents that are legally binding on all countries that recognize its jurisdiction. It is not a court of first instance, meaning it cannot handle a case as if it were a national court. Nor is it an appellate court, meaning it cannot “correct” the judgments of national courts. It basically interprets the meaning of the provisions of the European Convention on Human Rights by way of creating legal precedents that will be of a binding nature on all countries that are party to the convention. These precedents, of course, are not only binding on the countries but also on the European court itself. This means that if the European court changes its previous interpretation on a certain matter, it should explain why.
I honestly cannot see any satisfactory explanation to this last property case indicating why the European court threw out the precedent it created in the case of Loizidou v. Turkey in 1996. As is known, Ms. Loizidou brought a case against Turkey because she had to leave her property in the northern part of the island due to Turkey’s 1974 military intervention. The first discussion in this case centered on whether Turkey could be held responsible for any violations that occurred on the island. Turkey argued that it cannot be held responsible in this case because there is a sovereign state in the northern part of the island, namely the Turkish Republic of Northern Republic (KKTC). The European court rejected this argument, saying that the Turkish Armed Forces (TSK) exercised effective overall control in the northern part of the island, therefore entailing responsibility on Turkey’s part for the policies and actions of the KKTC.
Has anything on the island changed since 1996? Undoubtedly Turkey still has effective control in this part of the island. But this time, the European court changed its approach to the matter and said that Immovable Property Commissions (IPC) set up by the KKTC provide an effective remedy within the meaning of the convention and that Greek Cypriot citizens should therefore first turn to these commissions to seek compensation for the property they lost and that if they cannot get satisfaction, they should then turn to the European court. This means the European court indirectly recognizes the authority of the KKTC.
With this interpretation the European court also reversed its prior stance with regard to property rights without giving any explanation. In the Loizidou case, the European court ordered Turkey to pay almost $1 million to the plaintiff, Ms. Loizidou, stating clearly that this compensation was not awarded for the property per se but only for the denial of ownership and use of the property and that Ms. Loizidou retains full legal ownership of her property. In this second property case, however, the European court found nothing wrong in Greek Cypriots losing their property in exchange for compensation provided by the IPC. As you may appreciate, the implications and rights provided by the two judgments are strikingly different. These two judgments cannot simultaneously be legally correct; one of them is wrong.
Why did the court change its stance? Its workload must have played a role. There were 1,500 property cases pending before the court. So with one single judgment it got rid of all these cases by referring all suits to the northern Cypriot property commissions. But I think this cannot be the only explanation. The court reviewed a series of cases in the past despite its huge workload. In my opinion, the Greek Cypriot rejection of the Annan plan must have played a serious role in this judgment. It is obvious that the Greek Cypriots were punished for the first time for their uncooperative attitude.
The case gives an important message to Greek Cypriots: The Cypriot problem cannot be solved merely by exerting international pressure on Turkey. This problem should be solved at the negotiating table, and there will be serious consequences for Greek Cypriots if they fail to meet the demands of the international community.
There is a similar message for Turkey as well. Its cooperative attitude when it came to the Annan plan was rewarded. There is another thing, though, which should be seriously reflected upon by Turkish authorities. The European court has done Turkey significant favors before, as was the case with this latest ruling. Despite the common Turkish urban myth, the European court has always favored Turkey. It could, for example, have embarrassed Turkey in the ‘90s by declaring that torture and ill-treatment in the country took the form of “administrative practice,” which would have relieved applicants claiming to have been tortured of the burden of having to exhaust domestic remedies. The European court did this for the UK before but refrained from embarrassing Turkey with a similar finding.
Yet, despite all of the European court’s favors, Turkish authorities continued to sell their cheap propaganda that the court has always discriminated against Turkey. This last case should provide a serious incentive for Turkish authorities and the media to stop exploiting Turkish society’s feelings by creating distorted pictures of Europe and Turkey in which Turkey has always been wronged.
In short, this latest judgment of the European court provides much rich material for everyone to reflect upon. If understood, it can even be an antidote to the nationalistic hysterias that are so popular among both the Greeks and the Turks.
10 March 2010, Wednesday
If he had any brains, he would actually be dangerous. 
