Ministers’ Deputies

Information documents

CM/Inf/DH(2004)4/3-Rev 4 (restricted) 26 November 2004

———————————————

Case of Cyprus against Turkey, judgment of 10/05/01 - Grand Chamber - Living conditions of Greek Cypriots in northern Cyprus - Specific aspects

Memorandum prepared by the Secretariat – Version updated for the 906th meeting

———————————————

1.          The purpose of this document is to summarise the information received during the examination of the case by the Deputies at the Committee of Ministers’ meetings with respect to certain specific aspects of the living conditions of Greek Cypriots in northern Cyprus (violation of Articles 9 and 10 of the Convention and of Articles 1 and 2 of Protocol No. 1 to the Convention[1]).

2.          This question was last examined at the 897th meeting of the Committee of Ministers (September 2004).

3.          For the present meeting, the Chairman proposed to focus the discussions on the questions linked to education and freedom of expression (Articles 9 and 10, and Article 1 of Protocol No. 1).

Table of Contents

       Article 9                                                                                                                                            2

       Article 10                                                                                                                                          4

       Article 2 of Protocol No. 1                                                                                                                 7

       Article 1 of Protocol No.1                                                                                                                  9

Violation of Article 9 (freedom of thought, conscience and religion)

1.         The Court, accepting the facts as found by the Commission, observed that, “It [had] not been contended by the applicant Government that the “TRNC” authorities [had] interfered as such with the right of the Greek-Cypriot population to manifest their religion either alone or in the company of others. Indeed there [was] no evidence of such interference.”

2.         It nevertheless noted that “the existence of a number of measures limited the religious life of the enclaved Greek-Cypriot population [and] that, at least until recently, restrictions were placed on their access to the Apostolos Andreas Monastery as well as on their ability to travel outside their villages to attend religious ceremonies” and that “the “TRNC” authorities had not approved the appointment of further priests for the area, there being only one priest for the whole of the Karpas region”. It also recalled that in the Commission’s view, “these restrictions prevented the organisation of Greek Orthodox religious ceremonies in a normal and regular manner” (§§ 243 and 245).

3.         On the basis of these facts, the Court considered that “the restrictions placed on the freedom of movement of [the Greek-Cypriot] population [had] considerably curtailed their ability to observe their religious beliefs, in particular their access to places of worship outside their villages and their participation in other aspects of religious life”. It therefore concluded that there had been a violation of Article 9 in respect of Greek Cypriots living in northern Cyprus (§ 246). However, it found that no violation of Article 9 had been established in respect of the Maronite population living in northern Cyprus (§ 247).

Information/observations submitted by the Turkish authorities[2]

4.         The Turkish authorities consider that there is no interference by the authorities in the freedom to exercise one’s religious faith and opinions, which is secured by “Article 23 of the TRNC Constitution”. This fact has been internationally recognised in many reports, including a report of the Secretary-General of the United Nations to the Security Council.[3] The only exception is that provided for by “Article 23(4) of the TRNC Constitution”, according to which “Religious education and teaching is carried out under the supervision and control of the State”. Greek Cypriots and Maronites are now free to observe their religious beliefs and participate in other aspects of religious life. There is no discrimination of any kind on the basis of religious beliefs or activities. Restrictions to date on places of worship would arise only as a result of the fact that certain shrines have been preserved for their historical importance and value and turned into museums for better preservation. In this respect, the Turkish authorities have provided examples of restorations and renovations of certain churches and religious buildings and museums.

5.         Following the “decisions of 21 April, 29 April and 9 May 2003 of the TRNC Council of Ministers”[4]   permitting crossings between northern and southern Cyprus, access to places of worship and participation in other aspects of religious life (burials and other ceremonies) is open without restriction to all Greek Cypriots and Maronites living in the north, as well as to those living in the south. The Turkish authorities emphasise in this respect that religious ceremonies are held on Sundays, religious days and at funerals, that the possibility exists for families to bury their relatives in the region if so desired, and that all relatives have the possibility of attending funerals organised in the region. A list has also been provided of all the Greek-Cypriot burials that took place between 1 January and 30 November in the Karpas region.

6.         In order to prevent undesired incidents, however, the holding in northern Cyprus of a liturgy or any other religious activity requiring collective assembly is subject to prior authorisation. Furthermore, these religious activities can only be conducted at the Apostolos Andreas Monastery, which is the most suitable religious site in terms of space and security considerations.                 

                                                                                                

7.         As regards the appointment of additional priests to serve permanently in the Karpas area, the Turkish authorities emphasise that no such official request has been made. Moreover, they consider that in view of the number of Greek Cypriots residing in this area (394), their regular religious needs are not beyond the capacity of the current priest permanently residing in the area.

8.         However, should the need for additional priests arise for extraordinary occasions, the new situation with respect to crossings between the northern and southern parts of Cyprus allows priests residing in southern Cyprus to perform religious services in the north. As with any non-citizen, they can, according to the legislation currently in force, apply for and, provided they meet the necessary criteria, obtain, a work permit to perform their professional services.

9.         At the 897th meeting (September 2004), the Turkish authorities announced that in August and September 2004, the “authorities of the TRNC” had facilitated a number of religious services in various places of the Karpas region, and that further information would be provided at the 906th meeting (December 2004).

Information/observations submitted by the Cypriot authorities

10.        The Cypriot authorities consider irrelevant the examples provided by the respondent State of restorations and renovations of certain churches and religious buildings. Thus, with regard to Ayios Loucas Church in Nicosia and another church in Morphou, they have underlined that the churches are far away from the Karpas region and that the Turkish authorities have mentioned only two churches out of a total of 512 churches and monasteries in the entire area. They also note that the restoration of the monastery of Apostle Andreas was not a Turkish initiative but one of the United Nations and that the St. Barnabas church had been turned into a museum, together with 6 other churches in the north, long before the Court’s judgment.

11.        Moreover, the Cypriot authorities underline that to date, the Turkish authorities have not approved the appointment of any further priest. For the whole area, one single priest has to perform religious ceremonies in three different places: the villages of Rizokarpaso and of Ayia Trias and the monastery of Apostle Andreas, where religious ceremonies are therefore held by rotation. The Cypriot authorities consider that this situation substantially curtails the ability of the enclaved persons to observe their religious beliefs. In their view, the appointment of further priests for the area is all the more necessary as families who wish to do so may bury their relatives there and relatives may attend the funerals organised in the area.

12.        The Cypriot authorities have also referred to the Report of the Committee on Legal Affairs and Human Rights entitled “Rights and fundamental freedoms of Greek Cypriots and Maronites living in the northern part of Cyprus”,[5] which states in § 23, page 7:

“Freedom of worship is closely supervised, as are the annual pilgrimages to St. Andrew’s Monastery, occupied by an aged priest and two nuns, under United Nations protection. I was unable to visit the monastery, which is very isolated, to meet the priest, normally resident in Rizokarpaso, who cannot celebrate religious offices freely”.

13.        Following the Report, they recalled that Resolution 1333 was adopted by the Assembly on 24 June 2003.[6] In paragraph 9 the Assembly insists that the Turkish Cypriot administration “…ensure freedom of education and worship for Orthodox Christians and Maronites”.

Other relevant information

14.        Information concerning developments with respect to freedom of movement appears in the reports of the Secretary General of the United Nations on its operation in Cyprus (adopted in May and November each year) and in the Parliamentary Assembly’s Report (Doc. 9714 of 20/02/2003 - see in particular § 26 of the conclusion). In its judgment of 20/02/2003 (final on 09/07/2003) in the case of Djavit An v Turkey, the Court refers, inter alia, to the freedom of movement, in particular in respect of freedom of association and expression.

Assessment

15.       According to the information provided by the Turkish authorities, it appears that the restrictions on freedom of movement affecting access to places of worship and participation in religious events have for the most part been satisfactorily lifted.

Outstanding questions

16.        As liturgies and other religious activities requiring collective assembly are subject to authorisation, however (§ 6), further information as to current practices for granting such authorisation (including the procedures and criteria used) would be useful.

17.        With regard to the Court’s findings as to the insufficiency of one priest to ensure the organisation of religious ceremonies in a normal and regular manner, more precise information is necessary with regard to current needs and to the provisions currently governing the appointment of priests, and notably concerning the precise modalities under which priests residing in the south may obtain a permit to perform religious services in the northern part of Cyprus.

            Violation of Article 10 (freedom of expression)

18.        The Court based its findings on those of the Commission (§§ 44 and 250), according to which school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure, characterised as “cumbersome”, as a result of which the Turkish-Cypriot authorities had “censored or rejected the distribution of a considerable number of school-books on the ground that their content was capable of fostering hostility between the ethnic communities in northern Cyprus”. According to the Commission, the books in question “concerned subjects such as Greek language, English, history, geography, religion, civics, science, mathematics and music”.

 

19.       On the basis of these facts, the Court confirmed (§ 252) the Commission’s finding that “there [had] been an interference with Article 10 on account of the practice adopted by the “TRNC” authorities of screening the contents of school-books before their distribution. It [observed] in this regard that, although the vetting procedure was designed to identify material which might pose a risk to inter-communal relations and was carried out in the context of confidence-building measures recommended by UNFICYP …, the reality … was that a large number of school-books, no matter how innocuous their content, were unilaterally censored or rejected by the authorities.” It further noted that, in the proceedings before the Commission, the respondent Government had “failed to provide any justification for this form of wide-ranging censorship”.

20.       Consequently, the Court concluded that there had been a violation of Article 10 in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school had been subject to excessive measures of censorship (§ 254).

Information/observations submitted by the Turkish authorities

21.        As concerns the reasons for censorship, the Turkish authorities have recalled that, according to the established practice and the principles of the United Nations, school-books should not contain material inciting hatred or animosity between Greek and Turkish Cypriots. With regard to the contents of Greek-Cypriot school-books, they have submitted extracts of a number of such books - as well as some original books - to demonstrate bias therein. They have also provided examples and evaluations of expressions used in the school-books selected for the 2003-2004 and 2004-2005 school years by the Cypriot authorities and sent via the United Nations to primary schools in the Karpas region.[7]

22.        As regards the screening procedure, the ”TRNC” authorities have stated that the criteria for the screening of books intended for use in all schools, including Turkish-Cypriot schools, involve the following principles.[8] Textbooks: 

-          should contain matters relevant to learning – within the framework of the school curriculum and programme

-          provide knowledge on the subject from scientific, natural, social, aesthetic and cultural approaches

-          should bear in mind the skills, interests and needs of the students minimising useless or unnecessary information

-          should assist the student to think and research and provide a suitable relationship between observation, research, experiment and homework

-          teaching should be in clear, understandable language and style, and encourage the student to carefully study, research, experiment and think

-          should promote and guide the humane, moral and cultural values of the student within the state in which he/she lives and enable the student to endear to the subjects.

23.        As for the screening process, the “TRNC” authorities have asked the Cypriot authorities to submit school-books as early as possible each year, and through the appropriate channels. As long as the books are submitted before the beginning of the academic year, every effort is made to deliver them to schools in good time. Any delay in this respect has been caused by the late submission of the textbooks by the Cypriot authorities.

24.        The Turkish authorities have underlined that this procedure is in no way aimed at limiting the freedom of expression in northern Cyprus, which is expressly protected by Article 24 of the “TRNC Constitution”, but that the Greek-Cypriot curriculum makes it a necessity to monitor Greek-Cypriot education material.

25.        Moreover, bearing in mind that the use of this particular measure is not in itself a solution to the problem, the “TRNC” authorities have repeatedly proposed establishing a committee responsible for the removal of all racist and provocative material from all school books in use throughout Cyprus. They have made a number of proposals to the Cypriot authorities for direct talks between their relevant authorities, departments or institutions, with a view to proposing positive action in the field of education. All of these proposals have been refused. Nonetheless, the “TRNC” authorities have reaffirmed their willingness to establish a co-operative relationship with the competent Cypriot authorities in order to discuss and resolve all aspects linked to education, which they see as constituting the only effective means for replacing the present screening measures.

26.        Finally, according to the Turkish authorities (885th meeting -June 2004), the new Law on the establishment and regulation of a schooling system for the children of Greek Cypriot, Maronite and Latin origin families living in the Karpas region currently in progress of adoption (see §44) will no doubt introduce new or revised criteria for the screening of schoolbooks and should alleviate this violation of Article 10 of the Convention.

27.       At the 897th meeting (September 2004), the Turkish authorities declared that the screening of all schoolbooks used in the North of Cyprus is now done in accordance with the Council of Europe norms and that it has been relaxed and accelerated. In this context, they also recalled the work underway, under the auspices of the Council of Europe, for the rewriting of history books used in the North and the South of Cyprus and announced that three of them had been completed and would soon be used in the secondary schools.

Information/observations submitted by the Cypriot authorities

28.        The Cypriot authorities have indicated that, in paragraphs 250, 252 and 254 of its judgment in this case, the Court upheld the claim of Cyprus that excessive censorship of school textbooks violated Greek Cypriots’ freedom to seek and receive information. They consider that excessive censorship of primary school textbooks is still rigorously enforced, with a view to eliminating references to Greek cultural and spiritual identity and most Greek history.

29.        As regards the scope of censorship, the Cypriot authorities have underlined that usually more than 30% of the books, including mathematics, history and geography books, are rejected because they may show maps of Cyprus without the dividing line between the north and south. According to the Cypriot authorities, all books containing photographs of Greece, pictures of Greek cultural objects or the flags of Cyprus or even Greece, including a mathematics primer, have also been rejected. For the school year 2002-2003, among the 122 textbooks submitted to cover the needs of six classes of the elementary school, almost half of them, i.e. 53, were rejected on political grounds. The rejected books related mainly to the subjects of history, Greek language and religious knowledge, but also of geography, maths, music and even English.

30.        With respect to the manner in which screening is carried out, the Cypriot authorities have stated that providing books to the elementary school in the Karpas peninsula, which now had 25 students, caused problems, in 2003 like every year, because of the obligation to submit samples of the books to the “TRNC” authorities, which took 3 to 4 months to decide about their distribution. The dispatching of the approved books to the children, which in 2002 and 2003 had occurred in August, had also been delayed because the authorities of the “TRNC”, after having approved the sample copies, insisted nevertheless on scrutinising the text of each individual copy.

Assessment

31.        Part of the information provided still aims to justify the existence of censorship procedures on the basis of the contents of school-books for Greek-Cypriot children in the northern part of Cyprus. This question is doubtless of some importance from a humanitarian point of view, but is not directly linked to the execution of the present judgment. Indeed, the Court did not criticise the censorship in itself but the extent and the cumbersome nature of the procedure.

32.       In this respect, the statement made at the 897th meeting (September 2004), according to which the screening of all schoolbooks used in the North of Cyprus is now done in accordance with the Council of Europe norms and has been relaxed and accelerated, is encouraging, but needs to be specified more concretely (see below).

 

Outstanding questions

33.        In the light of the recent developments (see §§ 26 and 27 above), the Turkish authorities are invited to submit concrete details on following issues:

-           Scope of censorship: how the censorship criteria – those quoted in paragraph 23[9] or new criteria adopted in the framework of the new legislation – were relaxed comparing to those used at the time when the Court found the violation at issue ?

-           Cumbersome nature of the procedure: what changes were introduced since the Court’s judgment in order to accelerate and simplify the procedure of screening school-books? Further details are needed in particular with regard to the following points:

- the time-limits within which the Cypriot authorities are to submit school-books;

- the screening of school-books by the “TRNC” authorities (manner in which the procedure is carried out, resources available, time-limits for the screening process);

- the scope of school-books submitted for screening (are all school-books required to be submitted for screening, including those which have not been revised since their last screening?).

34.        In order to allow a proper assessment of the measures adopted, the Turkish authorities are also invited to submit all relevant texts, if possible together with a translation in one of the official languages of the Council of Europe:

- provisions applicable when the Court delivered its judgment,

- provisions currently applied,

- and, if necessary, relevant provisions possibly under discussion in the framework adoption, now under way, of the new Law on the establishment and regulation of a schooling system for the children of Greek Cypriot, Maronite and Latin origin families living in the Karpas region.

35.        In the light of UNFICYP recommendations on confidence-building measures, confirmation that all these provisions – or similar ones – are applicable as well to Turkish school-books used in the “TRNC” is also expected. In this context, the information provided on the process of rewriting of history books, in progress under the auspices of the Council of Europe, are encouraging.

Violation of Article 2 of Protocol No. 1 (right to education)

36.         The Court found that “children of Greek-Cypriot parents in northern Cyprus wishing to pursue a secondary education through the medium of the Greek language are obliged to transfer to schools in the south, this facility being unavailable in the “TRNC” ever since the decision of the Turkish-Cypriot authorities to abolish it” (§ 277).

37.         Furthermore, the Court considered that “the option available to Greek-Cypriot parents to continue their children’s education in the north [where classes are conducted in Turkish or in English] is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there” (§ 278).

38.         Finally, the Court stated that, “it [could not] be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots [sufficed] to fulfil the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life” (§ 278). In this context, the Court referred first of all to the obligation to attend schools in the south (§ 277). It further found that “schoolchildren from northern Cyprus attending schools in the south were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females” and that “certain restrictions applied to the visits of those students to their parents in the north” (§ 292).

39.          In view of the above, the Court considered that, “having assumed responsibility for the provision of Greek-language primary schooling, the failure of the “TRNC” authorities to make continuing provision for it at the secondary-school level must be considered in effect to be a denial of the substance of the right at issue” (§ 278) and that there had therefore been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them (§ 280).

Letter of the Chairman of the CM

40.        Following a request made at the 854th meeting (October 2003), the Chairman of the Committee of Ministers, the Minister for Foreign Affairs of Moldova, addressed a letter to his Turkish counterpart on 17 October 2003, expressing the Committee’s concerns “regarding the recent refusal to allow the opening of a secondary school in Rizokarpaso for Greek-Cypriot children”. The letter indicated that “measures are required to guarantee the right of Greek-Cypriot children living in the north to have secondary schooling in Greek” and that “one such measure would be the opening without delay of the school in Rizokarpaso.” The Chairman sought the Turkish Government’s “co-operation to ensure that immediate steps are taken to enable the above-mentioned school to be opened and to function effectively”. The reply of the Deputy Prime Minister and Minister of Foreign Affairs of Turkey, Mr Abdullah Gül, was forwarded on 19 November 2003 (see below).

Information/observations submitted by the Turkish authorities

The current legislative context

41.        According to the Turkish authorities,[10] secondary education is regulated by the provisions of the “General Secondary Education Law (50/1989)” and the “Secondary Education Law (Chapter 169)” and other relevant “legislation” currently in force.

42.        The Turkish authorities state that as far as educational facilities are concerned, no law denies the right to secondary education (school) to the Greek Cypriots living in northern Cyprus. In order to open a private (or public) school, permission must be requested from the “Ministry of National Education and Culture”. If the authority detects a need and if the criteria with respect to the subjects, the number of teachers, the premises for sports activities, etc. are fulfilled, permission may be granted. Where permission is refused, the decision can be brought before the Supreme Court sitting as the Supreme Administrative Court in accordance with Article 152 of the Constitution.

Developments in progress

43.        In the past, the Turkish authorities declared against the opening of a secondary school in the Karpas region, putting forward the insufficient number of pupils concerned in relation with the minimum required by the relevant internal law, as well as the possibility for those children to attend a secondary school in the South of Cyprus. Concerning the second point, they underlined that since the decision of the “Council of ministers of the TRNC” dated 23 April 2003, there is no more age limit for the permanent return to the North of children who had moved to the South to attend a secondary school and, furthermore, that such a move is no longer necessary given the freedom of circulation between the North and the South established by the above-mentioned decision. [11]

44.        However, at the 885th meeting (June 2004), the Turkish authorities indicated that on 21/05/04, the “TRNC Council of Ministers” took a decision which has authorised the “Ministry of National Education and Culture” to work on the establishment and regulation of a schooling system for the children of Greek Cypriot, Maronite and Latin origin families living in the Karpas region. The operation and supervision of these schools will be under the control of the “Ministry of National Education of the TRNC”. A special law has to be drafted, with the aim to pass it in time to enable the opening, in the Karpas region, of a secondary school in Greek language for the 2004-2005 school year.

45.              At the 897th meeting (September 2004), the Turkish authorities announced, that the legislative process for the regulation of Greek Cypriot and Maronite schools in the North of Cyprus announced at the 885th meeting (June 2004) was under way, and that the secondary school of Rizokarpaso opened on 13/09/2004, with 12 pupils and 15 teachers.

Information/observations submitted by the Cypriot authorities

46.        In response to the position adopted by the Turkish authorities in the past, the Cypriot authorities underlined the obligation, in accordance with the judgment of the Court, to establish schools in the North of Cyprus, blaming in this respect the refusal of the “TRNC authorities” to reopen the secondary school of Rizokarpaso[12].

47.        In a memorandum submitted at the 897th meeting (September 2004), the Cypriot authorities underline in particular the conditions imposed by the Turkish authorities for the reopening of the school of Rizokarpaso, namely:

- control over the appointment of teachers (3 teachers out of 17 recruited by the Cypriot Government were rejected),

- control over the school books (16 books out of 72 were rejected).

They also underline that the school opened in September was a gymnasium covering only the first three of the six years of secondary education and that its extension to a lyceum was needed.

Assessment

48.        The steps in progress for the establishment and regulation of a schooling system for the children of Greek Cypriot, Maronite and Latin origin families living in the Karpas region as well as the opening of the secondary school of Rizokarpaso constitute very positive developments. 

Outstanding questions

49.        Awaiting the adoption of the above mentioned regulation, information is required on the present grounds of functioning of the school of Rizokarpaso, notably on:

- the status of the school,

- the scope of the control of the Turkish Cypriot authorities ,

- the conditions and procedures for the recruitment of teachers,

- the practical conditions under which the present teachers, recruited in the South, come and teach in the North.

50.        As far as the regulation to be adopted is concerned, information is required on the present state of adoption process as well as on its content, notably in relation with the questions quoted in paragraph 50.

Continuing violation of Article 1 of Protocol No. 1

51.         The Court noted that “as regards ownership of property in the north, the “TRNC” practice is not to make any distinction between displaced Greek-Cypriot owners and Karpas Greek-Cypriot owners who leave the “TRNC” permanently, with the result that the latter’s immovable property is deemed to be “abandoned” and liable to reallocation to third parties in the “TRNC””. Consequently, the Court found that there was a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory (§ 269 of the judgment).

52.         The Court also held that there had been a violation of Article 1 of Protocol No. 1 in that the inheritance rights of persons living in southern Cyprus in connection with the property in northern Cyprus of deceased Greek-Cypriot relatives were not recognised. Three findings led it to reach this conclusion:

-    first, “the property of Greek Cypriots in the north cannot be bequeathed by them on death and … it passes to the authorities as “abandoned” property”;

-    next, given the above finding, it did not appear that “legal proceedings would hold out any prospects of success” where a court remedy was invoked before the “TRNC courts”;

-    and finally, “heirs living in the south would in fact be prevented from having physical access to any property which they inherited”.

Information/observations submitted by the Turkish authorities

Applicable legislation

53.        According to the legislation previously applicable to Greek Cypriots and Maronites residing in northern Cyprus, as to any foreigner, the situation was as follows:

-          in cases of permanent departure from northern Cyprus, the ownership of immovable property passed to the “TRNC” authorities;

-          upon death, the ownership of immovable property also passed to the “TRNC” authorities unless an immediate application was lodged by the heirs of the deceased for the inheritance formalities to be processed and completed.

This situation arose from the fact that although the relevant legislation provided for the right of “TRNC” citizens to keep possession of immovable property in cases of permanent departure or to transfer ownership to their legal heirs upon death, there was no specific clause governing the application of this legislation to foreigners.

54.        The revised legislation currently in force has corrected this situation:[13]

-          Any foreigner, including Greek Cypriots and Maronites residing in northern Cyprus, can, if they leave northern Cyprus permanently, transfer the ownership of their immovable property to a person they designate; however, the relevant legal procedures must be started within one year of the date of departure.

-          Upon the death of a Greek Cypriot or Maronite residing in northern Cyprus, their heirs can exercise their inheritance rights without any restrictions, provided that they start the procedures for the administration of their estate within one year of the date of death of their relative.

In this context, the Turkish authoritiesemphasise that, given that there is now no hindrance to crossings, there is no obstacle to Greek Cypriots residing in southern Cyprus undertaking any legal proceedings in northern Cyprus.

Other information

55.        As well as seeking the return of property/compensation, any person may also apply for an interim order restricting any interference with property rights under Civil Procedure Law Chapter 6 and under the Courts of Justice law 9/76, Article 40, which contains provisions as to when an interim order can be granted. In one such application before Famagusta District Court (Case No. 912/2002), a Greek Cypriot sued for unlawful division and distribution of his property, asked the court to find interference with his ownership rights and the use of his property by the relevant authorities to be void and for the return of this property into his name or compensation. The Court granted an interim order to the applicant on 18 February 2002 to prevent any further proceedings on his property pending the outcome of the case. The case is still pending.

56.        38 applications to TRNC courts by Greek Cypriots for inheritance claims from 1979 to the present day have been registered in the Famagusta District Court Probate Register. Examples:

(i)         Probate Application no. 187/2001 where letters of Probate were granted to the wife of a Greek Cypriot who had died intestate,

(ii)        Probate Application 61/1998. Letters of probate granted on 30 April 1998 to the cousin of a Greek Cypriot, who died with will.

It is worth noting in conclusion that Greek Cypriots can also, under Immovable Property Acquisitions (Aliens) Law Chapter 109 of the Laws of Cyprus, apply for permission to the Council of Ministers to buy property in the TRNC. In this respect, the Council of Ministers exercises its power under Public Instruments 79/80, 259/89 and 473/2002.

Information/observations submitted by the Cypriot authorities

57.        According to the Cypriot authorities,[14] Greek Cypriots and Maronites residing in the northern part of Cyprus are not permitted to bequeath their property even to their next of kin unless their heirs also reside in the northern part of the island.

58.        The Cypriot authorities also recalled that, until late 1998, the property of Greek Cypriots or Maronites deceased or having left the area for more than six months was seized by the “TRNC” police and made available to Turkish settlers. Since the easing of restrictions, their property was “placed in the custody of the authorities”. However, as the Secretary-General of the United Nations had pointed out in one of his reports: “Greek Cypriots and Maronites residing in the north are still precluded effectively from bequeathing immovable property to Greek Cypriot or Maronite heirs who are resident elsewhere”.

59.        As an example, the Cypriot authorities indicated that, in December 2002, the “TRNC" authorities informed two enclaved persons living in Ayia Trias that their property was going to be expropriated for the amount of 9000 pounds sterling. These persons refused, but the matter had not yet been resolved.

Other relevant information

60.        Further information can be obtained in paragraph 19 of the Parliamentary Assembly’s Report  (Rights and fundamental freedoms of Greek Cypriots and Maronites living in the northern part of Cyprus) and paragraph 36 of the Parliamentary Assembly’s Report of 2 May 2003 (Colonisation by Turkish settlers of the occupied part of Cyprus).

Assessment

61.        The Turkish authorities have indicated that, under the legislation currently in force, Greek Cypriots residing in the north can, upon permanent departure, transfer the ownership of immovable property to a person they designate. However, in so far as this situation imposes on such persons an obligation to transfer their property rights to another person, there remains an important interference in the right at issue.

62.        As regards the inheritance of Greek Cypriots who have died while residing in the north, the Turkish authorities consider that all the obstacles encountered by heirs residing in the south have now been removed. However, “Article 36.1 of the TRNC Constitution” provides that only citizens have the right to ownership, which would appear to affect the legal capacity to bequeath property to persons residing in the south.

Outstanding questions

63.        In the present state of the information submitted by the Turkish authorities[15], further information is necessary as to the grounds on which the interference in the property rights of Greek Cypriots living in the north, who are obliged, upon permanent departure, to transfer their property rights to another person, may be justified.

64.        With respect to inheritance, clarification is required as to the scope of the legal capacity to bequeath property to persons residing in the south. How can heirs residing in the south retain the right that they inherit? Are they not in the same position as that mentioned in the preceding paragraph?

65.        Moreover, the time-limit of one year that starts running, for inheritance matters, from the date of death, may pose problems, in so far as it may prove difficult to inform the relevant beneficiaries of the death, since they will not necessarily be close relatives of the deceased. It would therefore seem advisable for this time-limit to start running from the date on which the beneficiary is informed of the death.

66.        Although there was no debate on this issue for several months, the Secretariat would like to underline that, considering the time elapsed, the submission of this information is necessary.


[1] Questions related to the violation of Article 13 are examined in document CM/Inf(2004)4/2

[2] See lastly the memorandum of the Turkish authorities of 9 January 2004

[3] Report S/1999/657 of 8 June 1999

[4] Decisions of the “TRNC Council of Ministers” Nos E. 762-2003, E. 770-2003 and E851-2003

[5] Doc. 9714

[6] Resolution 1333, § 9.

[7] Letter of 16 September 2003, report of 14 August 2003, in Turkish and letter of 9 November 2004

[8] See page 9 of the Memorandum of the Turkish authorities dated 9 January 2004

[9] The Secretariat notes in particular that the last criterion is vague and does not allow a concrete assessment to be made as to how elements likely to lead to the rejection of a textbook may be identified.

[10] See the letters of 12 and 22 September 2003

[11] For more details, see CM/Inf(2004)4/3-rev 2 distributed for the 885th meeting (June 2004)

[12] Pour plus de détails, voir CM/Inf(2004)4/3 révisé2 distribué pour la 885ème réunion (juin 2004)

[13] See the decision of the “TRNC Council of Ministers“ of July 2002, adopted by virtue of Article 3 of the “Housing, Land Distribution and Special Property Law”  number 41/77.

[14] Information provided at the 847th meeting (July 2003)

[15] Lastly in the memoradum of the Turkish authorities of 9 January 2004