VIRTUALLY no-one is talking about the fourth day before Christmas this year, and according to some lawyers, the eerie silence is extremely worrying.
“It’s really quite amazing that we have had elections of the House of Representatives and no-one has brought up the deadline of 21 December 2011. I really wonder why,” said human rights lawyer Achilleas Demetriades.
What is it about this date that has kept politicians uncharacteristically quiet, leading Demetriades to accuse the government of “criminal negligence” on a television show?
December 21 is the expiry date of the Immovable Property Commission (IPC) in the north, set up by Turkey in 2006 as a domestic remedy to the property claims of displaced Greek Cypriots.
Two years ago Turkey announced that Greek Cypriots had until December 2011 to file any property claims with the commission, after which it would shut up shop. The announcement was pretty much ignored until the erudite judges of the European Court of Human Rights (ECHR) threw a spanner in the works.
On March 5, 2010, the ECHR ruled in the Demopoulos case that the IPC was an “effective domestic remedy” provided by Turkey; a hoop Greek Cypriots would have to pass through first to access the Strasbourg court again. Up until that point, refugees had been applying directly to the European Court. The decision sounded the death knell for thousands of Greek Cypriot cases against Turkey pending before the ECHR.
Many refugees had hoped to use the precedent set by Titina Loizidou at the ECHR to compel Turkey to pay up for ‘loss of use’ and apply significant pressure for the return of properties.
As lawyer Constantis Candounas put it on Sigma’s 60 Minutes TV show last week: “In which other place in the world was there a war, an invasion, occupation, the war was lost and the losers are then able to pursue their properties and seek compensation?”
It is this unique access to a David vs Goliath legal set up that the human rights lawyers don’t want to give up.
But to misquote the same lawyer, the party’s almost over. The Demopoulos bombshell left Greek Cypriot property owners with two choices. Either apply to the IPC for a remedy and if you don’t like the result, appeal to the High Administrative Court in the occupied areas, and if you’re still not happy, appeal to the ECHR. Or else wait for a comprehensive political solution to the Cyprus problem.
In the Sigma show, three lawyers battled it out with President Demetris Christofias’ closest adviser in the talks, Toumazos Tselepis, over the merits of either choice. Candounas argued that failure to apply to the IPC – the only remaining route to the ECHR – before the deadline was tantamount to “gifting your property to Turkey”.
Demetriades concurred, telling the Sunday Mail: “if one does not apply to the IPC, Turkey will argue that you have not tried to pursue your human rights and therefore not only is Turkey no longer liable but they have no obligation to pay for loss of use for 37 years or give back the property. In that respect you lose your right to apply to Strasbourg.
“Essentially you’ll have a theoretical right to property proven by title deed for which you will have no legal system to enforce it,” he added.
Tselepis retorted the IPC was offering “peanuts” or more specifically, one eighth the real value of land. He guaranteed that people would not lose their property rights if they didn’t go to the IPC. He further argued this was exactly what Turkey wanted, to solve the property aspect of the Cyprus problem by exchanging or buying up Greek Cypriot properties in the north on the cheap.
Applying to the IPC was morally wrong because it was an institution of the occupying power, said Tselepis, adding, it was also wrong because refugees would get a pittance of the true value of their properties. And even if they appealed all the way to the ECHR, he didn’t believe the European court would have much more to offer given recent case law.
The bottom line for Tselepis being, let the government handle this because you are better off waiting for a permanent political solution than settling at the IPC and losing your property rights for ever.
Demetriades questioned how anyone can judge the values offered by the IPC when almost all applications so far were made by desperate people wanting a settlement. No IPC decision has yet to be properly tested at the ECHR.
He also highlighted, any political solution on property will not include compensation for loss of use since 1974.
Who’s to judge whether the remedies offered are worse than the possible alternatives on offer: “As far as I know, the Severis flour mills in Kyrenia applied and got £12m Sterling. Angoulos Estates in Morfou got £10m. They agreed.”
It’s not all doom and gloom, though.
“One must not forget Turkey has made a U-turn on its position in relation to human rights in Cyprus given that Turkey accepts it is responsible for human rights violations, it accepts the IPC is a Turkish domestic remedy and it recognises Greek Cypriot ownership of property. In effect, it de-recognised the ‘TRNC’,” Demetriades said.
That’s all very well but how many refugees have the patience, financial support and generous supplies of optimism to test these positions by taking the lengthy route to the ECHR via the IPC and High Administrative Court?
The obvious counterargument being that refugees have waited 37 years already.
But what exactly can the IPC offer? According to the IPC website, a total of 1,296 applications have been filed with the commission, on which 244 decisions were issued. Of those, 66 applications were revoked and two rejected, meaning that from the remaining 176 applications, 166 ended up with compensation (including loss of use) in return for giving up their property rights in the north. Only a handful of others were awarded either restitution, exchange with Turkish Cypriot property in the south, compensation or a combination of the three. It has so far awarded some £60m Sterling to applicants for what Tselepis argues covers only 0.25 per cent of the total land in question.
“I don’t agree that the property issue will be dealt with by the political process. That was Turkey’s argument in the Loizidou case,” said Demetriades.
He added: “It’s a conceptual issue: either you wait for the government to solve it or you pursue your individual human rights. If you sell land in Paphos, you’re a developer, if you sell it in Kyrenia you’re a traitor?”
But there is clearly more to his philosophy than individual rights: “My plan of action is to call the Turkish bluff. First, you go for the whole property of the fenced off area of Famagusta. Turkey cannot claim any public interest in keeping this since there are no Turkish Cypriots, settlers or foreigners there.
“Second, the military zones. Turkey says it’s a peacekeeping force. Let’s say they’re right, does that mean they can have our properties rent-free? And at some point they’ll withdraw and the houses will have to be given back. Third, economic units, hotels, factories, the valuables within them and, fourth, everybody else.”
The aim is to maximise the cost of occupation for Turkey.
“People forget a very fundamental point, that Turkey is enjoying the occupied part of Cyprus for 37 years rent-free. The starting point is that the army must pay for the use of the land it enjoys. One can argue that they cannot afford it. Then they have to move in to something smaller.
“If they refuse to do that, then you have to file more cases to the IPC so that more judgements by the ECHR are generated so that they are forced to pay for the use of the land they are enjoying.
And if they cannot afford it, they should simply go home,” he added.
Last week’s TV debate was particularly significant in that it probably marked the beginning of a real discussion on the true consequences of the IPC and its possible expiry, pitting human rights lawyers (seeking legal remedies for the violation of property rights) against the government’s insistence that the whole thing can only be solved through a comprehensive political solution.
Lawyers vs politicians… hmmm, rocks, hard places.
