MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1411/H46-36

16 September 2021

1411th meeting, 14-16 September 2021 (DH) Human rights   H46-36 Cyprus v. Turkey (Application No. 25781/94) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)662, DH-DD(2019)552, DH-DD(2019)602, CM/Del/Dec(2017)1302/H46-32

 

Application	Case	Judgment of	Final on	Indicator for the classification
25781/94	CYPRUS v. TURKEY	10/05/2001 12/05/2014	Grand Chamber	Inter-state case

Case description

The case concerns 14 violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in July and August 1974.

In accordance with the Committee’s previous decisions, at the present meeting it will examine the issue of home and property rights of displaced Greek Cypriots and the payment of the just satisfaction awarded in the judgment of 12 May 2014.[1]

Status of execution

- Home and immovable property of displaced Greek Cypriots

a) Measures taken by the respondent State

Following the judgment of 22 December 2005 in the Xenides-Arestis case, an Immovable Property Commission (IPC) was set up in the northern part of Cyprus under Law No. 67/2005 on the Compensation, Exchange or Restitution of Immovable Property (“the IPC Law”).

This Law enables Greek Cypriot owners to apply to the IPC for restitution, compensation and/or exchange, as well as for compensation for loss of use, in respect of immovable property located in the northern part of the island that was registered in their names on 20 July 1974 (or in the name of a person of whom they are the legal heirs). A claim for restitution is considered on the basis of criteria set out in Section 8 of the Law. If the property in question does not fall into the categories eligible for restitution, the IPC can make a proposal to exchange it for property belonging to Turkish Cypriots situated in the southern part of Cyprus or to receive financial compensation.[2] The IPC calculates the value of a property on the basis of the market value in 1974, increased each year with reference to the “market value index” of average increases and decreases in property prices in northern Cyprus.

It calculates compensation for loss of use as 5% of the value of the property per year. Non-pecuniary damage can be given for the loss of access to a home, taking into account personal and family links to the property in question. The decisions of the IPC can be appealed before the High Administrative Court.

As of 5 July 2021, 6,867 applications have been lodged with the IPC and 1,227 of them have been concluded through friendly settlements and 34 through formal hearing. It appears that the large majority of applicants request compensation, and according to the IPC’s website it has awarded 318,197,662 - pounds sterling so far as compensation. It has also ruled for exchange and compensation in two cases, for restitution in three cases and for restitution and compensation in seven cases. In one case it has delivered a decision for restitution after the settlement of Cyprus issue, and in one case it has ruled for partial restitution.[3]

b) Findings of the European Court in relation to the IPC

 

In its inadmissibility decision in Demopoulos and Others, delivered on 5 March 2010, the Grand Chamber found that Law No. 67/2005 “provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots” (§ 127 of that decision).

In a subsequent inadmissibility decision in Meleagrou and Others v. Turkey, delivered on 2 April 2013, the Court found that the applicants had not made proper use of the IPC for the purposes of the requirement to exhaust domestic remedies before applying to the Court, since they had submitted only claims for restitution but not for exchange or compensation. 

In an inadmissibility decision delivered on 2 October 2017 in the Loizou case, the Court rejected claims related to the length of the proceedings before the IPC and the alleged delay in the payment of the compensation awarded by the IPC.

In the judgment Joannou v. Turkey of 12 December 2017, the Court found that the IPC did not act with coherence, diligence and appropriate expedition concerning the applicant’s compensation claim (Article 1 of Protocol No. 1). However, the Court also underlined that the possible difficulties arising in the processing of particular cases before the IPC did not call into doubt the findings in the Demopoulos and Others decision, according to which that remedy is accessible and capable of efficiently delivering redress (§§ 81-86, § 106).[4]

c) Cyprus v. Turkey case (just satisfaction) judgment of 12 May 2014

In its application to the Court for just satisfaction in this case, Cyprus requested the Court to adopt a “declaratory judgment” stating “(i)  that Turkey is required by Article 46 to abide by the judgment in Cyprus ν. Turkey by abstaining from permitting, participating or acquiescing or being otherwise complicit in, the unlawful sale and exploitation of Greek Cypriot homes and property in the northern part of Cyprus; and (ii)  that this obligation arising under Article 46 is not discharged by the Court’s admissibility decision in Demopoulos and Others.”

The Court responded by observing that Turkey was bound by Article 46 of the Convention to comply with the principal judgment. It reaffirmed the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under the above-mentioned provision, and that the supervision of the execution of the Court’s judgments is the responsibility of the Committee of Ministers.

Nonetheless, the Court continued (§ 63), that compliance by Turkey with the Court’s findings in the judgment on the merits “could not, in the Court’s opinion, be consistent with any possible permission, participation, acquiescence or other form of complicity in any unlawful sale or exploitation of Greek-Cypriot homes and property in the northern part of Cyprus. Furthermore, the Court’s decision in the case of Demopoulos and Others, cited above, to the effect that cases presented by individuals concerning violation-of-property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, taken on its own, to dispose of the question of Turkey’s compliance with Part III of the operative provisions of the principal judgment in the inter-State case”.

d) Submissions of the respondent and applicant States

The Turkish authorities consider that Turkey has taken the measures required for the execution of this part of the judgment with the setting-up of the IPC (see inter alia, DH-DD(2019)552).

Specifically as regards the existence of protective measures within the existing legal framework, in a communication of 2009 (DD(2009)611), made prior to the Court’s decision in Demopoulos, the Turkish authorities explained that from the moment the IPC is seized with an application, any action aimed at modifying the factual situation of the property will be deemed null and void and will have no bearing on the redress ordered by the IPC (“first day rule”).

In their most recent memorandum, submitted on 25 June 2021 (DH-DD(2021)662), the Turkish authorities have focused on the practical implementation of the protective measures available within the IPC law prohibiting the sale and improvement of property which the IPC has decided can be restituted to its owners either “within a reasonable time” or “after the solution of the Cyprus problem”. In particular, they referred to the comprehensive memorandum provided in May 2019 (DH-DD(2019)552) which contains detailed information about the effective implementation of the decisions made so far by the IPC ordering restitution.

In addition, according to the Turkish authorities, no complaint was received from applicants concerning prolonged non-enforcement of IPC awards. They indicated also that due to COVID-19 pandemic, the implementation of the IPC’s decisions has been interrupted but that the IPC has taken measures to ensure the continuation of its procedure online.

In their memoranda presented to the Committee for its previous examinations of this issue (see
DH-DD(2018)873 and DH-DD(2019)602), the Cypriot authorities stated that unlawful sale and exploitation of properties belonging to Greek Cypriots continues with the encouragement and the permission by the Respondent State. They expressed the view that, according to their interpretation of § 63 of the judgment on the just satisfaction, in order to comply with the main judgment, Turkey had inter alia to introduce measures to put an end to all transfers of immovable property belonging to displaced Greek Cypriots and ban all construction activities carried out in respect of such properties without the consent of the owners. They consider that the existing avenues within the IPC mechanism are not effective to stop unlawful sale and exploitation of such properties and underlined that no information was provided on their functioning, as requested by the Committee in its decision adopted in December 2017. The Cypriot authorities pointed out in particular that no information was provided on the functioning of the rule prohibiting sale and transfer of properties from the date of the seizure of the IPC, referred to in the notes for the 1302^nd meeting (December 2017) (DH) meeting.

e) Last examinations by the Committee of Ministers[5]

At its 1302^nd meeting (December 2017) (DH), the Committee recalled the inadmissibility decision in Demopoulos and Others in which the European Court concluded that the law which set up the restitution, exchange and compensation mechanism provided for “an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots”. The Committee recalled, however, that in the judgment on the just satisfaction of 12 May 2014 in the Cyprus v. Turkey case the European Court expressed the opinion that compliance with the conclusions of the main judgment “could not be … consistent with any possible permission, participation, acquiescence or otherwise complicity in any unlawful sale and exploitation of Greek Cypriot homes and property in the northern part of Cyprus”. In this respect, it noted the information conveyed by the Turkish authorities on the existing avenues within the framework of the above mechanism to address the issue of possible unlawful sale and exploitation of the properties in question, and invited the Turkish authorities to present additional information on the practical implementation of these avenues to allow it to assess their effectiveness, and if necessary the need for further measures.

At its 1324^th meeting (September 2018) (DH), the Committee deeply regretted the decision of Turkey not to participate in the discussions and called on Turkey to co‑operate with the Committee. The Committee regretted also that no information had been provided by the Turkish authorities in reply to its decision of December 2017 (DH) as regards the issue of the property rights of displaced persons and called upon them to provide the requested information in good time for the next examination of this issue.

No decision was adopted at the 1348^th meeting (June 2019) (DH).

- Just satisfaction awarded by the Court in its judgment of 12 May 2014

In this judgment, the Grand Chamber held that Turkey was to pay the Government of Cyprus 30,000,000 euros in respect of non-pecuniary damage suffered by the relatives of missing persons and 60,000,000 euros in respect of non-pecuniary damage suffered by the enclaved Greek Cypriot residents of the Karpas peninsula. The Court indicated that these amounts should be distributed by the Government of Cyprus to the individual victims under the supervision of the Committee of Ministers within 18 months of the date of the payment or within any other period considered appropriate by the Committee of Ministers.

At each of its meetings since June 2015 the Committee has recalled that the obligation to pay the just satisfaction awarded by the Court is unconditional and called upon the Turkish authorities to pay the sums awarded in the judgment on just satisfaction of 12 May 2014.

At its 1398^th meeting (March 2021) (DH), the Committee instructed the Secretariat, if the situation remains unchanged, to prepare a draft interim resolution for the next examination of the inter-state case.

So far, no payment has been made and no indication that payment will be made has been given.

Analysis by the Secretariat

- Home and property rights of displaced Greek Cypriots 

It should be recalled that the Committee has adopted only one substantive decision subsequent to the delivery by the Court of the just satisfaction judgment in this inter-state case (decision of December 2017). In order to reconcile, on one hand, the continuous line of cases in which the Court has found the IPC to be an effective remedy and, on the other, § 63 of the just satisfaction judgment, the Committee noted the information conveyed by the Turkish authorities on the existing avenues within the framework of the IPC mechanism to address the issue of possible unlawful sale and exploitation of the properties in question and invited them to present additional information on their practical implementation to allow the Committee to assess the effectiveness of these avenues, and if necessary the need for further measures.

In its memorandum of June 2021, Turkey explained that when the IPC rules for immediate restitution, the property is registered in the name of the Greek Cypriot owner and thereafter the IPC Law prohibits the transfer and development of the property. In addition, the IPC Law provides expressly that as from the date of the IPC decision on restitution after the solution of the Cyprus problem, no construction shall be permitted on the property concerned and it cannot be improved or sold. According to the information provided in the memorandum, in practice the Ministry of Interior has the responsibility of executing the IPC’s decisions for restitution. The Turkish authorities indicated also that nine out of the IPC’s 11 decisions granting immediate restitution have been implemented without delay, while an appeal is pending in respect of one decision and as regards the last one the applicants are expected to designate a new representative.

This information could be noted by the Committee.

As regards the protection of Greek Cypriot property from unlawful sale or exploitation during the period when an application for restitution is pending before the IPC, it should be recalled that according to the IPC Law, the IPC considers the current value of the property subject to a restitution claim at the moment it is seized with such a claim. This means that a development of the property made after the moment the IPC is seized with a claim for restitution will not be taken into consideration by the IPC when it decides on the possibility for restitution (restitution is not possible if the property has doubled its value). This safeguard could be also recalled by the Committee.

In this context, it would be useful to clarify whether the calculation of increases in property value when deciding whether restitution is possible includes only increases due to development or also increases due to inflation. If increases due to inflation are included, this would appear to constitute a major barrier to restitution. Information could also be requested from Turkey on existing avenues to prevent any other changes to property which is the subject of a pending claim for restitution before the IPC, for example the possibility for the IPC to issue interim injunctions or the possibility for claimants to apply to the courts for a preventive order under the “first day rule” mentioned above. If such avenues exist, information could be requested on the implementation in practice of such orders.

Finally, although the Turkish authorities indicated that they did not receive any complaint concerning prolonged non-enforcement of the IPC’s decisions on restitution, it appears necessary to provide the Committee with updated information on the practical operation of the IPC (length of proceedings, length of enforcement of decisions, means at its disposal) to confirm its continuing effectiveness in practice. 

- Payment of the just satisfaction awarded in the judgment of 12 May 2014

In accordance with the decisions adopted by the Committee at its 1398^th meeting (March 2021) (DH), since the situation as regards the payment of the just satisfaction remains unchanged, the Secretariat prepared a draft interim resolution.  

Financing assured: YES