Sunday, 7 March 2010

Property Tribunal in Northern Cyprus is Valid Remedy, Rules European Court of Human Rights

The vexing issue of property rights in an occupied territory, especially where the occupation has lasted many decades, is the subject of a very recent admissibility decision by the Grand Chamber of the European Court of Human Rights.
Demopoulos et al., issued on 1 March 2010, concerns property claims by Greek Cypriots whose land was taken as a result of the Turkish invasion in 1974. Turkey objected to their applications on the grounds that they had not filed their claims with the Immovable Property Commission set up under the laws of the ‘Turkish Republic of Northern Cyprus’, which is a pseudo-State without international recognition. The applicants replied that they could not be expected to make claims to the institution of an illegal occupying power. The Grand Chamber declared the case inadmissible, in effect rejecting the claims of the Greek Cypriots and telling them to exhaust their domestic remedies by using the mechanisms set up in northern Cyprus to adjudicate property claims and award compensation.
The Grand Chamber said it was ‘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 said 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.’ (para. 98).
The ruling bears on many historic claims concerning human rights abuses. It is also relevant to the law governing occupied territories. As in the past, the Court made no reference to the relevant instruments governing the law of armed conflict, and in particular the fourth Geneva Convention. According to the Grand Chamber:

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 (para. 85).
One important issue is whether those who lands were taken by the occupation are entitled to recover them or only to receive financial compensation. According to the Grand Chamber:

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… 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. (paras. 111-112)

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.

1 comment: