MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-34

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-34 Cyprus v. Turkey (Application No. 25781/94) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)736, DH-DD(2024)949, DH-DD(2022)683, H/Exec(2014)8, CM/Del/Dec(2017)1302/H46-32, CM/Del/Dec(2021)1411/H46-36

 

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 Türkiye in July and August 1974.

The Committee has decided to examine at the present meeting the measures relating to the rights of displaced Greek Cypriots in relation to their homes and property situated in the northern part of Cyprus they had had to abandon in 1974 and the question of the payment of the just satisfaction awarded in the Court’s judgment of 12 May 2014.[1]

It is recalled that the Court in the Cyprus v. Turkey judgment found that the continuing and total denial of access to their property, by reason of the restrictions placed by the “TRNC” authorities on their physical access to that property, was “a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1”.

The Court further noted that, “as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights” (§§ 187-189) (continuing violation of Article 1 of Protocol No. 1). It also found that there had been “a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in Northern Cyprus”. Finally, it found a violation of Article 13 of the Convention due to the absence of a remedy for displaced Greek Cypriots to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1 (violation of Article 13).

Status of execution

A. Homes and immovable property of displaced Greek Cypriots

a) Measures adopted in 2003 and the Court’s findings in the Xenides-Arestis case

In 2003, the Turkish authorities adopted a “Law on Compensation for Immovable Properties Located within the Boundaries of the “TRNC”” and set up an Immovable Property Commission. Since questions concerning this law were pending before the Court in the context of new cases, in December 2003 the Committee decided to await the Court’s assessment before pursuing its own examination.[2]

The Court duly examined this remedy in the Xenides-Arestis v. Turkey admissibility decision of 14 March 2005 and concluded that, as it then stood, deficiencies in the framework, including the lack of any possibility for restitution, meant that it “cannot fully redress the negation of the applicant's property rights”. Following this decision, the Court adopted a pilot judgment in the same case on 22 December 2005, where it indicated under Article 46 that the violation of the applicant’s rights originated “in a widespread problem affecting large numbers of people, namely the unjustified hindrance of her “respect for her home” and “peaceful enjoyment of her possessions” as a matter of “TRNC” policy or practice (see Cyprus v. Turkey, cited above, §§ 174 and 185).” (§38). The Court indicated that the respondent State should introduce a remedy which would secure effective redress for the Convention violations identified in all similar applications pending before it, in line with the indications in its admissibility decision of 14 March 2005.

b) Immovable Property Commission (IPC) set up in 2005

Following the above Xenides-Arestis pilot judgment, Law No. 67/2005 on the Compensation, Exchange or Restitution of Immovable Property (“the IPC Law”) was adopted, setting up a modified Immovable Property Commission (IPC).

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 according to criteria set out in Section 8 of the Law. If the property in question falls into one of the categories making it ineligible for restitution, the IPC can make a proposal to exchange it for property situated in the southern part of Cyprus belonging to Turkish Cypriots or to receive financial compensation.[3] 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 damages can be awarded for the loss of access to a home, taking into account personal and family links. The decisions of the IPC can be appealed before the High Administrative Court.

According to the most recent statistical data on the functioning of the IPC, on 16 August 2024, 7,667 applications have been lodged, of which 1,838 have been concluded. The IPC has awarded a total of 465.161.296 pounds sterling (GBP) in compensation. Moreover, it has ruled for exchange and compensation in three cases, for restitution in five cases and for restitution and compensation in eight 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.[4]

c) The Committee’s examination while awaiting the Court’s assessment of the IPC Law 

In 2006, the Cypriot authorities expressed concern that the property of displaced persons was being affected either by property transfers or construction activities and asked the Committee to call for a moratorium on such transfers and construction activities. The Committee did not request a moratorium, but instead asked for information about the current situation of the properties of displaced persons, to ensure that, awaiting the evaluation by the Court of the new restitution, exchange and compensation mechanism in the context of the Xenides-Arestis case and follow up cases, the possibilities of restitution offered by this mechanism are guaranteed.[5]

In decisions adopted between June 2006 and March 2010, the Committee asked the Turkish authorities to provide detailed and concrete information about transfers of and changes to Greek Cypriot property, while also underlining that it did not wish to pre-empt or influence in any way the assessment of the mechanism by the Court.[6]

d) Findings of the Court in relation to the IPC Law

 

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). With regard to the provisions limiting the availability of restitution, the Court held that, taking into account the passage of time, the need to respect the rights of third parties, and the principle that the choice of implementation of redress for breaches of property rights was for the respondent State, “no problem therefore arises as regards the impugned discretionary nature of the restitutionary power under Law No. 67/2005” (§§ 84, 116-119).

In a subsequent inadmissibility decision in Meleagrou and Others v. Turkey, delivered on 2 April 2013, concerning a complaint by displaced Greek Cypriots about the refusal of the IPC to grant them restitution of their plots of land in northern Cyprus, the Court found that, although the applicants had submitted claims for restitution to the IPC, they had not made claims either for exchange of land in the south of Cyprus or for pecuniary compensation, which would also have permitted the award of damages for loss of use or non-pecuniary compensation if restitution was not afforded. That failure meant the applicants had not made proper use of the IPC remedy. Secondly, in respect of the applicants’ complaints under Article 6 § 1, the Court found that there was no evidence that the proceedings had been unfair or that the IPC was biased or lacking independence. As regards their complaint as to the length of the proceedings the Court found that a period of four years and eight months (before the IPC and on appeal to the “TRNC’s” High Administrative Court) was not unreasonable given the newness of the proceedings and what had been involved in their adjudicating.

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.

Most recently, in the judgment Joannou v. Turkey of 12 December 2017, the Court examined a complaint about the length of time taken by the IPC to determine the applicant’s claim for compensation for property originally belonging to her aunt. The Court had regard to statistics from November 2017 showing that a total of 6,369 applications had so far been lodged with the IPC, of which 1,035 had been finalised, mainly with awards of compensation (§§ 46-47). It recalled its findings in Demopoulos and Others that Law No. 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with property owned by Greek Cypriots (§ 76) and further held that nothing in the applicant’s arguments and submissions “could, in itself, at present call into question the effectiveness of the IPC remedy as such” (§ 81). It continued: “the IPC mechanism and the redress provided by that mechanism are dependent on the relevant domestic arrangements and mandatory budgetary inclusions … that were found to be adequately established in the Demopoulos and Others judgment. … At present, there is no conclusive evidence allowing the Court to call the adequacy of such arrangements into question” (§ 82). Nonetheless, in the applicant’s individual case the Court found that the IPC did not act with coherence, diligence and appropriate expedition concerning the applicant’s compensation claim (violation of Article 1 of Protocol No. 1).

e) The Committee’s examination following the Demopoulos decision

Based on the Court’s assessment in the Demopoulos inadmissibility decision, the Secretariat in 2010 proposed to the Committee to close its examination of the part of the Cyprus v. Turkey judgment concerning the home and property rights of Greek Cypriot displaced persons.[7] The positions expressed by delegations on this question at the June 2010 meeting are presented in the Records of that meeting.[8] Summing up the debate, the Chairman noted that a large number of delegations, several of which declared that they supported the position of the Secretariat, wished nonetheless to have more time to consider in greater depth the questions raised during the discussions.

The Committed examined further this issue at its 1092nd meeting when it decided to resume consideration of the Cyprus v. Turkey case “at one of their forthcoming meetings”.

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

In November 2011, Cyprus submitted to the Court an application for just satisfaction in the inter-state case, also requesting 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” (see § 61 of the just satisfaction judgment).

The Court responded by observing that Türkiye 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 Türkiye 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”.

g) Subsequent examinations by the Committee of Ministers[9]

The Committee resumed its examination of this part of the inter-state case in December 2014. To assist it, the Secretariat prepared a document taking stock of the Committee’s supervision so far and analysing the impact of the above judgment of 12 May 2014,[10] in which it presented two possible, alternative readings of the term “unlawful sale and exploitation” in § 63. The first possible reading was that this term referred to the sale or exploitation of property prohibited by the 2005 Law, namely of property which has been ordered by the IPC to be returned to its Greek Cypriot owners or which was suitable for restitution under this law. The second possible reading was that the term referred to any sale or exploitation taking place without the consent of the Greek Cypriot owners. The Secretariat pointed out that this second reading would appear to be in contradiction with the Grand Chamber’s findings in its inadmissibility decision Demopoulos and Others of 1 March 2010 and that of the Chamber in the Meleagrou and Others decision of 2 April 2013 (see above). If the first reading were confirmed, it was suggested that the Committee could ask the Turkish authorities to take measures to guarantee that properties unsuitable for restitution under the 2005 Law were not subject to sale and exploitation without the consent of their Greek Cypriot owners. The analysis continued that “if the Committee concludes that it is not possible to take a decision [as to which reading was correct or identify other interpretations], then the question of a request for interpretation under Article 46 § 3 of the Convention could arise.” 

In its first decision on the substance adopted since then, in December 2017, the Committee recalled the Court’s findings in the Demopoulos and Meleagrou inadmissibility decisions, as well as in the Cyprus v. Turkey just satisfaction judgment. It also “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 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”.

At its examination of the case in September 2021 (1411^th meeting, DH), the Committee noted the information provided 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.

The Committee noted in particular the information on the implementation of the provision according to which, following a decision by the Immovable Property Commission (IPC) providing for immediate restitution of such properties or for their restitution after the solution of the Cypriot problem, they cannot be sold or developed without the consent of their Greek Cypriot owners.

It recalled, as regards the protection of properties from possible unlawful sale and exploitation more particularly during the period when an application for their restitution is pending before the IPC, that according to the applicable provisions the increase in the value of the properties following the date of the application is not taken into consideration when the IPC decides whether restitution is possible (it is not possible if the property has doubled its value).

The Committee invited the Turkish authorities: 1) 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; 2) to provide information on the regulation and application in practice of other avenues to prevent any changes to a property which is the subject of a pending claim for restitution before the IPC; and 3) to submit statistical data on the functioning of the IPC, and in particular, on the number of cases pending, the length of time they have been pending, the number of awards of compensation made and the total amount and the number of awards that have been paid in full so far, as well as the funds and staff at its disposal.

No decision was adopted at the Committee’s examinations of the issue of property rights in September 2022 or September 2023.

h) Latest submissions by Türkiye

-       Action report of 30 June 2022 (DH-DD(2022)683)

According to the Turkish authorities, the Committee should close its supervision of this part of the judgment since the necessary execution measures were taken with the setting-up of the IPC, which has been constantly evaluated as an effective domestic remedy by the European Court.

In their action report, they set out the context of the execution of this part of the judgment since 2006 and provided information in response to the questions raised by the Committee in its last decisions adopted in September 2021. They referred to a decision delivered by the IPC in an individual case which confirms that increases due to inflation are not taken into account in the calculation of increases of property value (restitution is not possible if the property has doubled its value).

As regards the question about other avenues to prevent changes to a property which is the subject of a pending claim for restitution, the Turkish authorities first underlined that most of the claims to the IPC are for compensation and that in only 3.5% of the applications do the applicants request restitution only. They indicated that in 12 out of the 56 such applications concluded so far, the IPC granted restitution, and that in the 42 others the applicants either withdrew their applications or chose another form of redress. They provided information on the progress of the remaining 196 restitution claims. As regards the prevention of changes to the property while claims are pending, they indicated that, according to the IPC Rules, the Ministry of Interior, which is a respondent party in the proceedings before the IPC and also competent to oversee transactions and developments of the relevant properties, is notified of each application to the IPC within 21 days. There has never been an appeal to the High Administrative Court to challenge an IPC decision on the ground that restitution was rejected due to changes to the property which occurred while the application was pending before the IPC. In addition, it appears that the IPC has powers to make interim orders to prohibit development, although there have only been two cases where the applicants initially asked for an interim order when their restitution applications were pending, but in both the applicants switched their claims from restitution to compensation and so did not require the interim orders to be made.  

Although initially the IPC Law included a two-year deadline for the lodging of applications before the IPC, this deadline has been extended every two years since its first expiry in 2007.

According to the information provided, in 3,063 out of 5,750 applications pending at that time before the IPC, the Ministry of the Interior and/or the Attorney General’s Office have carried out the required checks and assessments. In 1,849 cases the IPC was waiting for the applicants to file additional documents. A further 1,214 applications were at the “mention stage”, nearing completion.

The Ministry of Finance has paid in full the awards made by the IPC in 731 applications, amounting to a total of GBP 205,941,728 (out of GBP 335,349,426 awarded at that time). In seven other cases the necessary amount has been allocated and the payments are ready to be made. The Turkish authorities indicated that a separate item is allocated for the payments by the IPC in the Budget Law each year. In 2022 it was GBP 12,500,000, and this can be supplemented.

As regards the staff at the IPC’s disposal, the Turkish authorities indicated that in addition to the seven members of the IPC, two of whom are international members, there are 14 staff members (three lawyers, four English translators, three Greek translators, three archivists and one secretary). In any event, the Turkish authorities pointed out that the European Court has already assessed the situation as regards the resources available to the IPC and the number of pending applications, in the context of the Joannou v. Turkey judgment (§§ 82-86).

-       Submission of 2 August 2023

The Turkish authorities reiterated that the Committee should close its supervision of the issue of the property rights of displaced persons and considered that the continuation of its examination is not consistent with the termination of the supervision of the Loizidou judgment in September 2022. They indicated that the specific information requested by the Committee had been provided and that the IPC had been continuing to operate effectively and to deliver concrete results for the Greek Cypriot property claims.  

-       Memorandum of 27 June 2024 (DH-DD(2024)736)

In their memorandum submitted for the present examination, the Turkish authorities recall in detail the context of the execution of this part of the judgment, the examinations by the Committee and the judgments and inadmissibility decisions delivered by the Court. They indicate that the IPC continues to receive wide acceptance from Greek Cypriot property claimants and that 293 new applications have been lodged before it since last September.

They reiterate their detailed analysis of § 63 of the 2014 judgment on the just satisfaction. They consider that the Committee has already adopted “the only justified interpretation proposed by the Secretariat on the meaning of ‘unlawful sale and exploitation’ mentioned in paragraph 63 of the 2014 just satisfaction judgment” when it adopted decisions in 2017 and 2021 asking questions and requesting information. They consider that a reference to the Court for interpretation under Article 46 § 3 of the Convention would be devoid of merit under the Court’s case-law and run counter to the decisions of Committee. They therefore again ask delegations to close the supervision of the part of the Cyprus v. Turkey judgment concerning the property rights of displaced Greek Cypriots.

i) Latest submissions by Cyprus

-       Memorandum of 24 August 2022 (DH-DD(2022)875)

The Cypriot authorities stated that unlawful sale and exploitation of properties belonging to Greek Cypriots continues and referred to a report of the Department of Lands and Surveys in Cyprus of July 2022. They also refer to issues related to the opening of part of the fenced-up area of Varosha for potential economic development. The authorities recalled that, according to their interpretation of § 63 of the judgment on the just satisfaction, in order to comply with the main judgment, Türkiye has 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. The Cypriot authorities indicated in this respect that “should the Deputies consider the matter doubtful”, they “reserve the right” to request an interpretative ruling from the Court under Article 46 § 3 of the Convention.

Moreover, they consider that the existing avenues within the IPC mechanism are ineffective to stop unlawful sale and exploitation of such properties. The Cypriot authorities also considered that no clarification had been provided by the Turkish authorities whether increases due to inflation are included in the calculation of the increase in the property value by the IPC. They indicated that the assertion about the existence of avenues offering protection while a claim for restitution is pending before the IPC is unsupported by evidence and that no information had been 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).

As to the functioning of the IPC, the Cypriot authorities considered that the data provided by the Turkish authorities demonstrated the ineffectiveness of this mechanism. At least 4,334 cases filed before 2014 were still pending before the IPC, a sign of structural delays in the procedure. They also point outed that more than GBP 130,000,000 out of a total of GBP 335,349,426 awarded by the IPC remained unpaid and that the budget allocated to these payments was manifestly inadequate.

-       Memorandum of 7 July 2023 (DH-DD(2023)833)

In addition to the elements presented in their previous memorandum, the Cypriot authorities referred to recent developments with regard to Greek Cypriot property in the northern part of Cyprus.

With regard to the 2014 just satisfaction judgment, they pointed out that in 2014 the Secretariat presented two possible readings of § 63 and suggested that the Committee might consider requesting an interpretation from the Court under Article 46 § 3. The Cypriot authorities now asked the Committee either to call on Türkiye to desist from encouraging and facilitating the unlawful use and exploitation of Greek Cypriot homes and properties in the northern part of Cyprus in line with the Court’s statements in § 63 or, in case of doubt that this was the correct interpretation and conclusion to draw from that paragraph, consider making a request to the Court for interpretation of it under Article 46 § 3 of the Convention. They reiterated their claim about the ineffectiveness of the IPC, with reference inter alia to an update from the IPC’s website on the number of applications lodged and resolved as of June 2023 (respectively 7,292 and 1,491).

On 31 August 2023, the Cypriot authorities supplemented their memorandum (see DH-DD(2023)1040).

-       Memorandum of 20 August 2024 (DH-DD(2024)949)

In the memorandum submitted for the present examination, the Cypriot authorities ask the Committee to request the Court to resolve the issue of the interpretation of the Cyprus v. Turkey judgments, which according to them is key for the remaining questions concerning their execution. In support, they submit “an Independent Expert Opinion” commissioned by Cyprus from Mr Robert Spano, former Judge and President of the European Court, which concludes that there are strong grounds militating in favour of triggering the procedure under Article 46 § 3 of the Convention.

The authorities also refer to 30 additional developments of Greek Cypriot property in the northern part of Cyprus since the last examination of the case, and reiterate their claims about the ineffectiveness of the IPC with regard to the backlog of claims awaiting decision and payment.

Finally, they raise the issue of absence of payment of the just satisfaction awarded in the judgment Cyprus v. Turkey of 2014.

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

In this judgment, the Grand Chamber held that Türkiye 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 as a result of the violations found by the Court of Articles 3, 8, 9, 10 and 13 of the Convention and Article 2 of Protocol No. 1.

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 its 1411^th meeting (September 2021) (DH), the Committee adopted Interim Resolution CM/ResDH(2021)201 strongly urging the Turkish authorities to abide by their unconditional obligation and pay the just satisfaction awarded by the Court in this case, together with the default interest accrued, without further delay. At its 1428^th, 1459^th and 1492^nd meetings (respectively, in March 2022, March 2023 and March 2014) (DH), the Committee deplored the absence of response to this interim resolution and reiterated its call on Türkiye to pay the sums awarded, together with the default interest accrued, without further delay.

So far, no payment has been made nor has any indication has been given that payment will be made.

Analysis by the Secretariat

- Home and property rights of displaced Greek Cypriots 

The Secretariat recalls its analysis and conclusions, which remain unchanged, set out at length in the notes for the Committee in September 2022 and September 2023.[11]

For the present examination, for the reasons set out in its memorandums and summarised in the “status of execution” above, Türkiye again asks the Committee to close the supervision of the part of the Cyprus v. Turkey judgment concerning the property rights of displaced Greek Cypriots, in view of the extensive measures taken to execute the judgment.

Cyprus, on the other hand, considers that the measures taken so far are insufficient and asks the Committee to request the Court under Article 46 § 3 of the Convention to resolve the question of interpretation of the Cyprus v. Turkey judgments.

The Committee might wish to consider the information and arguments submitted to it and adopt a decision.

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

The Committee might wish to deeply deplore again the absence of response to Interim Resolution CM/ResDH(2021)201, where it expressed profound concern that prolonged delays in fulfilling the obligation for payment of the just satisfaction not only deprive the individual victims from receiving compensation for the damages suffered by them, but also is in flagrant disrespect of the unconditional obligation under Article 46, paragraph 1, of the Convention.

It could also again strongly urge Türkiye to pay the just satisfaction awarded by the Court in this case, together with the default interest accrued, without further delay.

 

Financing assured: YES