Μακαριος Δρουσιώτης

Δημοσιεύεται το σημαντικότερο μέρος της απόφασης του Ευρωπαϊκού Δικαστηρίου Ανθρωπίνων Δικαιωμάτων, με την οποία απορρίπτονται οι προσφυγές Ελληνοκυπρίων εναντίον της Τουρκίας για τις περιουσίες τους στο κατεχόμενο μέρος της Κύπρου με την οποία αναγνωρίζεται η νομιμότητα της Επιτροπής Ακίνητης Περιουσίας (IPC) που δημιουργήθηκε στα κατεχόμενα για να διαχειριστεί το ζήτημα των περιουσιών. Το τονισμένο μέρος της απόφασης είναι η δική μου αξιολόγηση ως των σημαντικότερων αποσπασμάτων της απόφασης.

Μ. Δρ.  

 

 

GRAND CHAMBER DECISION AS TO THE ADMISSIBILITY OF Application nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04 by Takis Demopoulos and Others, Evoulla Chrysostomi, Demetrios Lordos and Ariana Lordou Anastasiadou, Eleni Kanari-Eliadou and Others, Sofia (Pitsa) Thoma Kilara Sotiriou and Nina Thoma Kilara Moushoutta, Yiannis Stylas, Evdokia Charalambou Onoufriou and Others and Irini (Rena) Chrisostomou against Turkey

 

 

 

 

69.  It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996‑IV). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions.

 

83. The Court observes that the arguments of all the parties reflect the long-standing and intense political dispute between the Republic of Cyprus and Turkey concerning the future of the island of Cyprus and the resolution of the property question.

 

84.  In the present applications, some thirty-five years have elapsed since the applicants lost possession of their property in northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established their homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance.

 

85. Thus, the Court finds itself faced with cases burdened with a political, historical and factual complexity flowing from a problem that should have been resolved by all parties assuming full responsibility for finding a solution on a political level. This reality, as well as the passage of time and the continuing evolution of the broader political dispute must inform the Court’s interpretation and application of the Convention which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances.

 

86. The Court will proceed, in light of all the above considerations, to examine the two main branches of objections by the applicants and the intervening Government to the procedure before the IPC: firstly, whether the requirement to exhaust domestic remedies applies at all to the situation of Greek-Cypriot owners of property under the control of the “TRNC”; and then, secondly, whether or not the respondent Government in these cases have furnished a remedy in the IPC capable of providing effective redress.

 

98.  The Court is therefore not persuaded that the acknowledgement of the existence of a domestic remedy runs counter to the interests of those claiming to be victims of violations. It acknowledges the strength of feeling expressed by some of the applicants. However, the argument that it would be galling to have recourse to authorities in northern Cyprus cannot be given decisive weight - against the background of conflict and hostility, similar argument might be raised in respect of any official body or authority on the Turkish mainland, or indeed by any victim of a violation who is faced with the prospect of asking for redress from a State which has been responsible for the injury suffered.

 

110.    Insofar as criticism is made of an allegedly overly-restrictive approach to restitution of possession of property to their Greek-Cypriot owners, the Court recalls that, in Loizidou, it had rejected the validity of Article 159 of the “TRNC” Constitution in the context of the Turkish Government reliance on that provision as showing that the property had been expropriated in an instantaneous act prior to the temporal competence of the Court (cited above, § 44). As the “TRNC” regime was not regarded as being capable of depriving the property owners of title, only of possession, there was accordingly a continuing situation of breach due to the ongoing barring of access to and enjoyment of their property by Greek-Cypriot owners which was within the Court’s temporal jurisdiction. Thus, in all the cases that followed, it may be noted that Greek-Cypriot owners claimed only pecuniary damages for loss of use of their properties, not compensation for the loss of the properties themselves of which they continued to be regarded as the legal owners.

 

111.  This has led to the situation that individuals claiming to own property in the north may, in theory, come to the Court periodically and indefinitely to claim loss of rents until a political solution to the Cyprus problem is reached. At the present point, many decades after the loss of   possession by the then owners, property has in many cases changed hands, by gift, succession or otherwise; those claiming title may have never seen, or ever used the property in question. The issue arises to what extent the notion of legal title, and the expectation of enjoying the full benefits of that title, is realistic in practice. The losses thus claimed become increasingly speculative and hypothetical. There has, it may be recalled, always been a strong legal and factual link between ownership and possession (see, for example, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom[GC], no. 44302/02, ECHR 2007‑X concerning extinction of title in adverse possession cases) and it must be recognised that with the passage of time the holding of a title may be emptied of any practical consequences.

 

112.  This is not to say that the applicants in these cases have lost their ownership in any formal sense; the Court would eschew any notion that military occupation should be regarded as a form of adverse possession by which title can be legally transferred to the invading power. Yet it would be unrealistic to expect that as a result of these cases the Court should, or could, directly order the Turkish Government to ensure that these applicants obtain access to, and full possession of, their properties, irrespective of who is now living there or whether the property is allegedly in a militarily sensitive zone or used for vital public purposes.

 

113.  The Court can only conclude that the attenuation over time of the link between the holding of title and the possession and use of the property in question must have consequences on the nature of the redress that can be regarded as fulfilling the requirements of Article 35 § 1 of the Convention.

 

114. The Court’s case-law indicates that if the nature of the breach allows restitutio in integrum, it is for the respondent State to implement it. However, if it is not possible to restore the position, the Court, as a matter of constant practice, has imposed the alternative requirement on the Contracting State to pay compensation for the value of the property. This is because the Contracting Parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under Article 1 of the Convention to secure the rights and freedoms guaranteed under the Convention (see amongst many authorities, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). The Court notes that it has consistently applied the above approach even to cases of manifestly unlawful and flagrant expropriations of property (see, for example, Papamichalopoulos, cited above, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, ECHR 2000‑X); it does not perceive that any difference of principle arises where the illegality is on an international level. While it goes without saying that Turkey is regarded by the international community as being in illegal occupation of the northern part of Cyprus, this does not mean that when dealing with individual applications concerning interference with property, the Court must apply the Convention any differently.

 

115.  The applicants argued that this would allow Turkey to benefit from her illegality. The Court would answer that, from a Convention perspective, property is a material commodity which can be valued and compensated for in monetary terms. If compensation is paid in accordance with the Court’s case-law, there is in general no unfair balance between the parties. Similarly, it considers that an exchange of property may be regarded as an acceptable form of redress. It is correct, as the applicants and intervening Government asserted, that the Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part (Al-Adsani v. the United Kingdom, [GC], no. 35763/97, § 60, ECHR 2001-XI); however, the Court must also have regard to its special character as a human rights treaty (amongst many authorities, Banković and Others v. Belgium and 16 Other Contracting States(dec.), [GC], no. 52207/99, § 57, ECHR 2001‑XII). The Convention system deals, overwhelmingly, with individual applications. The present applications are cases about interferences with individual property rights, and the availability of redress therefor – they cannot be used as a vehicle for the vindication of sovereign rights or findings of breaches of international law between Contracting States.

 

116.  The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, a suggested condition put forward by the applicants and intervening Government which discounts all legal and practical difficulties barring the permanent loss or destruction of the property. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention.

 

117.  It is evident from the Court’s case-law that while restitution laws implemented to mitigate the consequences of mass infringements of property rights caused, for example, by communist regimes, may have been found to pursue a legitimate aim, the Court has stated that it is still necessary to ensure that the redress applied to those old injuries does not create disproportionate new wrongs. To that end, the legislation should make it possible to take into account the particular circumstances of each case (see, for example, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 58, ECHR 2002‑VIII). Thus, there is no precedent in the Court’s case-law to support the proposition that a Contracting State must pursue a blanket policy of restoring property to owners without taking into account the current use or occupation of the property in question.

 

118.  Thus, the Court maintains its view that it must leave the choice of implementation of redress for breaches of property rights to Contracting States, who are in the best position to assess the practicalities, priorities and conflicting interests on a domestic level even in a situation such as that pertaining in the northern part of Cyprus. No problem therefore arises as regards the impugned discretionary nature of the restitutionary power under the Law 67/2005.

 

119.  Insofar as the applicants protested that only a small proportion of the property under occupation would in practice be eligible for restitution under the new mechanism, the Court does not consider that this, to the extent that it can be considered as an accurate assertion, undermines the effectiveness of the new scheme. In Xenides-Arestis (decision on admissibility, cited above), it had pointed out that the lack of any provision for restitution was a defect. It is satisfied, given that restitution of property has already occurred, that the amended law has made good this shortcoming.

ii. independence and impartiality

120.  The Court notes that the IPC is made up of five to seven members, two of whom are independent international members and that similar rules apply as to senior members of the judiciary in the "TRNC" vis-à-vis appointment and termination, and conditions of employment. Persons who occupy Greek-Cypriot property are expressly excluded. While the applicants and intervening Government asserted that no-one in the north could claim to be unaffected by the widespread problem, this general allegation is insufficient to cast doubt on the composition. Nor is it persuaded that the illegal nature of the regime under international law and the ongoing presence of Turkish military personnel or the appointment of members of the Commission by the “TRNC” President removes any objective impartiality or independence from the IPC in carrying out the functions imposed upon it under Law 67/2005. No specific, and substantiated, grounds concerning any lack of subjective impartiality of members of the IPC have been put forward.

iii. adequacy of the compensation

 

121.  The applicants and intervening Government submitted that the amounts awarded by the IPC were unreasonably low compared with previous Court awards of just satisfaction. The Court would however note that in Xenides-Arestis (cited above) it awarded 800,000 euros for pecuniary damage which was the equivalent of the figure of 466,289 Cypriot pounds (CYP) put forward by the IPC rather than the CYP 716,101 claimed by the applicant. It also notes the settlement in the case of Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (just satisfaction-friendly settlement) (cited above) which was based on the IPC’s assessment. If, in the Demades case (cited above), the Court awarded the sum claimed by the applicant in preference to that put forward by the Government which had sought assistance from the IPC, this was in a situation where the Government had not provided sufficient materials to substantiate the valuation which they had put forward.

 

122.  The Court notes that the intervening Government have provided reports by their Land and Surveys Department which asserts that only 2%-6% of true entitlement has been allocated to claimants before the IPC so far. It would appear however that these figures are based on calculations including economic loss of use, although it is not evident that the claimants concerned in fact put in claims for economic loss, and also includes high rates of interest, which have not been previously accepted in the Court’s just satisfaction awards. Furthermore, the sums put forward, for example, in respect of fields without any residential or other buildings also appear disproportionately high, given the speculative nature of the assumptions being made as to their profitability. Nor is it apparent that any of the claimants who are purportedly dissatisfied with the awards have made appeal to the High Administrative Court as is open to them.

 

123.  The Court is not therefore convinced that it can be said that the sums of compensation awarded under Law 67/2005 will automatically fall short of what can be regarded as reasonable compensation, or, applying the standard of comparison in length of proceedings cases, as being "manifestly unreasonable" (see Cocchiarella v. Italy [GC], no. 64886/01, § 140, ECHR 2006‑V, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 214, 272, ECHR 2006-V).

iv. the accessibility and efficiency of the remedy

 

124.  The applicants have referred in this context to the burden of proof which is placed on claimants by Law 67/2005. The Court observes that individuals claiming immovable or movable property are required to prove their ownership or title beyond reasonable doubt and to provide documentary proof for movable property. This is the same burden of proof as is often relied on by the Court, particularly in the context of Articles 2 and 3, but it may be noted that the Court applies an autonomous approach not assimilable to that in domestic criminal cases (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII). Similarly the formulation of evidentiary standards in domestic law cannot be taken in isolation from their application in practice and it is not apparent from the materials before the Court that this element has led to a significant number of claims being rejected. Claims under the Convention must also be substantiated by evidentiary means. Any difficulties faced by the applicants in putting forward their claims before the IPC would equally apply in applications to this Court. Thus the requirement that claimants provide title deeds or proof of ownership, even if onerous in some cases, would appear a necessary and unavoidable precondition to making an application.

 

125.  Nor does the Court perceive any failing in the Law to make provision for the payment of compensation, an obligation for budgetary inclusion being imposed on the relevant body (see section 18 of Law 67/2005 at paragraph 36 above). Insofar as the applicants asserted that the mechanism would take an unreasonable length of time, there is no material before the Court which would substantiate this claim. The fact that there are several hundred pending claims at the moment cannot be relied on to prove that any particular claims have not been handled with due expedition. It further notes the guarantees given to claimants and representatives concerning entry and exit to the northern area.

 

126.  Insofar as complaint was made that claimants were, on occasion, required to attend numerous sessions of the IPC, the Court does not find that this has been shown to render the procedure unduly onerous or inaccessible. Similarly, while it is asserted that claimants were not always informed by the IPC of the possibility of obtaining legal representation and their own valuations or of what claims they could put forward, there is no general obligation in the civil context for a tribunal to ensure that any party presents his or her case in the most effective way. It is apparent that some claimants did obtain legal representation and their own expert evidence; there was nothing to prevent the others from doing so. As regards the complaint that the IPC worked only in Turkish and English, the Court would note that the latter is in common usage in Cyprus and that interpreters are made available during the IPC proceedings. It perceives no obstacle in the way of the claimants obtaining translations themselves of any documents or forms nor any requirement that legal aid should be available for the payment of legal fees. As regards the allegation that decisions were unreasoned and lacking in transparency, there are very few examples from which to draw any general conclusions as hardly any claims have in fact reached the stage of a decision on the merits from the IPC, most resulting in a settlement at an earlier stage. The Court can place limited weight on the assertions made of undue pressure, bullying and even corrupt practice, which if true might be cause for worry and threaten to undermine the practical availability of the remedy, but which have not been tested in adversarial conditions. Even if claimants may feel under pressure to settle cases, it is not evident to the Court that claimants are unable, if they are so determined, to take their claims to a decision by the IPC.   In any event, as already noted above, appeal lay to the “TRNC” High Administrative Court if any claimant considered that there had been material unfairness or procedural irregularity; none have chosen so far to exercise this avenue of redress. The scope of the High Court’s review, and its ability to mitigate any errors or failings in the procedures before the IPC have not been put to the test.

15/03/2010