“Cyprus Mail” - Published on May 13, 2007

“The violation of property rights in Cyprus: is there still hope?”
By Yiola Stavraki

‘Human rights concerns regarding Cyprus stem largely from the division of the island along a ceasefire line and the current unresolved political situation. The division of the island has consequences for the enjoyment, on the whole of the island, of a number of human rights including…property rights’ (Report by the UN Secretary General to the Commission on Human Rights, E/CN.4/2002/33, March 4, 2002).

THE RIGHT to acquire, own and enjoy property is one of the most fundamental human rights of the Cyprus Constitution. It is also safeguarded by Article 8 of the European Convention of Human Rights (right to respect for private and family life, home and correspondence) and Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (protection of property). The latter states that every natural or legal person is entitled to the peaceful enjoyment of his possessions and no one shall be deprived of his possessions except in the public interest and subject to the general principles of national and international law.

Yet, the above fundamental rights have been systematically violated in the Republic of Cyprus, now a member of the European Union, since the Turkish invasion of the island in 1974.

It is noteworthy that recent years have witnessed an exponential development, construction and sale to foreigners of homes, villas and hotels on Greek Cypriot-owned land in the occupied part of Cyprus.

In a letter to Kofi Annan, Cyprus’ Charge d’ affaires to the UN, Andreas Hadjichrysanthou, has expressed grave concern that the above situation “further complicates the sensitive issue of property rights and has the potential, if not stopped, of creating a new fait accompli in the de facto division of the island, which was imposed upon Cyprus through the use of military force and sustained by the Turkish occupation army since 1974, in flagrant violation of relevant Security Council resolutions.”

How can the long-lasting Cyprus political problem be resolved and mutual trust strengthened between the Cypriot and Turkish sides when the de facto division of the island has become, and remains, the new status quo?

In the landmark case of Loizidou v Turkey (1996), the European Court of Human Rights ruled that Greek Cypriot owners had always remained and would continue to remain the only true and lawful owners of their properties in the occupied part of Cyprus. It ruled that “as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference with her rights under A. 1 of Protocol 1 …”

The aforementioned ruling is certainly a positive step as it highlights the illegal exploitation of Greek Cypriot properties in the northern part of Cyprus. Yet the rights of the Greek Cypriot owners have not been vindicated since. Turkey has consistently refused to comply with the above judgment, as well as with the UN Resolution 1987/19, adopted by the European Commission on March 11, 1987, safeguarding the right to own and enjoy property. The three interim resolutions of the Council of Europe calling on Turkey to implement the above decision have not been complied with by Turkey.

Further, in the case of Cyprus v Turkey (2001), the European Court of Human Rights found Turkey to have violated 14 articles of the European Convention on Human Rights in relation to a range of issues, including the rights of displaced Greek Cypriots to return to their properties in northern Cyprus as well as discrimination against Greeks and Greek Cypriots as regards, among other things, enjoyment of their property. A violation by Turkey of Article 8 and Article 1 of Protocol 1 of the European Convention was also found in the case of Xenidis Arestis v Turkey (2005). The illegality of sales of property to foreigners in the occupied area of Cyprus is further highlighted by the fact that any transfer of property rights in the Republic of Cyprus may only be effected by the government of the Republic of Cyprus. This means that any sale and/or transfer of property owned by Cypriots to foreigners constitutes an illegal act which could expose the purchaser of such property to serious financial and legal consequences, in relation to a possible action against them for trespass or conspiracy to commit trespass.

Despite the above, the English High Court has ruled in the Orams case that Mr and Mrs Orams, an English couple who had built a house on land owned by the Greek refugee Meletis Apostolides, were not obliged to return this land to the said refugee nor did they have any duty to grant him compensation for the deprivation of his property, thus failing to enforce the ruling of the Nicosia District Court of November 2004, ordering the Orams to return the land to Mr Apostolides or to grant him compensation. The ground on which the High Court based its decision was that the acquis communautaire does not apply in the occupied area of Cyprus. This case will soon be tried by the English Court of Appeal.

It should also be noted that Turkey has not only consistently violated the Greek Cypriots’ property rights but has also demonstrated great disrespect towards Greek cultural heritage, by looting churches and other archaeological monuments. As stated in the Preamble of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”.

How can the issue of the violation of property rights in Cyprus be resolved? There is no easy answer to this question. Political, strategic, economic and emotional factors intersect, thus preventing the agreement of both sides on a mutually acceptable solution. Efforts have been made to solve the problem but have all proved fruitless.

Part of the population saw the Annan Plan as a lifeboat for the devastating political situation. Yet, this plan was vigorously rejected by the President of Cyprus, Mr Tassos Papadopoulos and by the substantial majority of the Cyprus people in a referendum, for, among other, proposing a highly complicated and uncertain regime for resolving property issues. Under the Annan plan, there was no effective guarantee that the Greek Cypriots would recover their properties in northern Cyprus. Nor was there any provision that Turkey pay compensation to all Greek Cypriots for losing their property or giving them at least some of the financial benefits of the sale of their property to foreigners. The plan was generally criticised as an undemocratic, unfair and financially unworkable plan for the Cyprus population. It also run contrary to the judgments of the European Court, as described above.

Some argue that Turkey must be forced either to allow the Greek Cypriots to return to their properties or grant them compensation for losing the above. In the case of Loizidou v Turkey, Turkey eventually paid compensation for loss of use, but continues to deny her access to her property. This gives rise to a grave violation of Article 13 of the European Convention of Human Rights (right to an effective remedy) concerning the failure to provide the Greek Cypriots with remedies to compensate Turkey’s unjust and unlawful interference with their rights under both Article 8 and Article 1 of Protocol 1 of the European Convention.

In Xenidis Arestis v Turkey, the Court stated that “a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select…the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects…”. It stressed that Turkey must provide effective redress for all its violations in relation not just to the present applicant but in all similar applications pending before the Court. Yet, such effective remedy has never been offered by Turkey and it is doubtful whether Turkey will ever change its stance.

To sum up, the rulings of the European Court of Human Rights highlight the undemocratic spirit of Turkey, which has so far consistently ignored the European Union and its institutions. They further highlight the unjust sufferings of the Greek Cypriots. On the political level, what we can do is hang on to those judgments and continue to struggle for their enforcement by Turkey, through our committees and representatives in the various European institutions. On the individual level, we can continue to fight for our voices to be heard.