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http://europenews.dk/en/node/30643

Demopoulos and others v. Turkey (CENSORED)

Robert Ellis 18 March 2010

This is the article by Robert Ellis which appeared in today’s print edition of the Hürriyet Daily News. But for some reason the editor-in-chief, David Judson, found it offensive and removed it from their website.

The non-admissibility decision a fortnight ago by the European Court of Human Rights was welcomed as “historic” by the Turkish press and Foreign Minister Ahmet Davutoglu, but it might be premature to pop the champagne corks. In fact, it is probably former Turkish Ambassador Tulay Uluçevik who struck the right note when he described the Court’s ruling as “a Pyrrhic victory.”

Apart from the issue of security, that of property can be considered a major stumbling block for a solution to the Cyprus question, and the Annan Plan did little to assuage Greek Cypriot concerns. The right to restitution and return was effectively limited by a number of restrictions so that the majority of displaced Greek Cypriots were faced with compensation in the form of what Tassos Papadopoulos called “dubious paper.”

The Property Board that the Annan Plan envisaged, which would have settled claims from both sides, would for the most part have been funded by the Greek Cypriots, so it would have been the merchant from Kayseri who fed his donkey with its own tail all over again.

However, the Immovable Property Commission, or IPC, which “the Turkish Republic of Northern Cyprus” (“TRNC”) established in December 2005 to deal with Greek Cypriot property claims, will in effect be funded by Turkey, as the “TRNC” has the status of “a subordinate local administration” under Turkish jurisdiction.

The legal status of the “Turkish Republic of Northern Cyprus”, which was proclaimed in 1983, has been a bone of contention for previous property cases appearing before the European court, but it has been established in admissibility decisions (for example, Loizidou v. Turkey in 1995 and Xenides-Arestis v. Turkey in 2005) that Turkey is the respondent state.

In the latter case, an attempt was made to avoid a judgment against Turkey by establishing an “Immovable Property Determination, Evaluation and Compensation Commission” in July 2003, so as to provide a domestic remedy that should be exhausted. Nevertheless, this only provided for compensation but not restitution, and as there were doubts about the impartiality of the Commission, the remedy was found to be neither effective nor adequate.

So, seen in those terms, the IPC must be considered an improved model as its provisions provide for restitution, exchange or compensation in return for rights over the immovable property and compensation for loss of use if claimed. Furthermore, two of the IPC’s five to seven members are independent international members, and persons who occupy Greek-Cypriot property are expressly excluded.

Consequently, on the basis of the 85 cases concluded by last November, the Court found that the IPC provides an accessible and effective framework of redress for property issues “in the current situation of occupation that it is beyond this Court’s competence to resolve.”

In view of the redress offered by the Annan Plan, it must be a disappointment for Greek Cypriots that the Court maintains its view that “it must leave the choice of implementation of redress for breaches of property rights to Contracting States” and that, from a Convention perspective, “property is a material commodity which can be valued and compensated for in monetary terms.” In fact, in more than 70 cases claimants opted for compensation.

A further bone of contention in the current talks between Dimitris Christofias and Mehmet Ali Talat is whether it is the legal or the current owner of the property who should decide whether redress should be in the form of restitution, exchange or compensation.

On this issue, the Court states, “It is still necessary to ensure that the redress applied to those old injuries does not create disproportionate new wrongs.” Finally, the Court concludes that this decision is not to be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political settlement, but in the meantime the Court’s decision provides a legal basis.

Davutoglu believes the Court’s decision has boosted the international legitimacy of the “TRNC”, in which case he has neglected to read the small print. “The Court maintains its opinion that allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimization of a regime unlawful under international law.”

Furthermore, “Accepting the functional reality of remedies is not tantamount to holding that Turkey wields internationally-recognized sovereignty over northern Cyprus.” The European Parliament has, in a resolution, called on Turkey to immediately start to withdraw its troops from Cyprus and address the issue of the settlement of Turkish citizens as well as enable the return of the sealed-off section of Famagusta to its lawful inhabitants.

Prime Minister Recep Tayyip Erdogan has indicated he is willing to withdraw Turkish troops in the event of a solution, but his chief EU negotiator, Egemen Bagis, has boasted that Turkey has not withdrawn a single soldier or given away territory.

Considering that not only the future of Cyprus but also Turkey’s prospects of EU membership hang in the balance, that kind of attitude is singularly unhelpful.

Robert Ellis is a regular commentator on Turkish affairs in the Danish and international press.