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 property rights of enclaved persons (violation of Article 1 of Protocol No. 1 to the Convention[2]).

2.          To facilitate the reading of this document, further details and the new information submitted since the last version are presented in grey boxes (this document was previously part of the document CM/Inf/DH(2007)10/3).

3.          This question was last examined at the 992nd meeting of the Committee of Ministers (3-4 April 2007).

Continuing violation of Article 1 of Protocol No. 1

1.         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).

2.         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”.

I – GENERAL INFORMATION

3.          Article 36 of the “TRNC Constitution” recognises the right to ownership and inheritance of the Greek Cypriots living in northern Cyprus who are “citizens of the TRNC”.  Furthermore, according to Article 13 of the “TRNC Constitution”, “the rights and liberties referred to in the Constitution may be restricted by law in respect of aliens, in accordance with international law”.  It follows from this provision that that Greek Cypriots living in northern Cyprus who are “not citizens of the TRNC” enjoy similar rights to ownership and inheritance of property, subject to some restrictions.

4.          This interpretation of Article 13 was confirmed by a judgment of the “TRNC Constitutional Court” of 2006: asked whether this provision was limited to the restriction of (property) rights of aliens or whether it also recognised the (property) rights of aliens, the “Constitutional Court” ruled for the latter, rejecting the argument of the petitioner that aliens do not have property rights.

II – PROPERTY RIGHTS OF GREEK CYPRIOTS WHO PERMANENTLY DEPART FROM THE NORTH

7.         The Turkish authorities state[4] that the rationale behind this regulation is to ensure that such properties are protected and, if needed, immediate measures will be taken for their maintenance.  Also, there was a need to prevent violations of relevant legislation, for example, on immovable property tax, estate duty and other taxes, as well as concerning liability arising from regular wear and tear.

8.         In addition, if, upon their permanent departure from the north, Greek Cypriot residents choose not to exercise the option to transfer their property within one year, they have a new option.  They may now apply to the “Immovable Property Commission” (established under “Law 67/2005 for Compensation, Exchange and restitution for Immovable Properties”), ask for an assessment of their properties and, in view of this assessment, choose from different remedies available to them (restitution, compensation and/or exchange).

9.         The Turkish authorities recall in this respect that according to the findings of the European Court concerning this new mechanism for restitution compensation and exchange, the mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14/03/2005 in the Xenides-Arestis case, as well as of the judgment on the merits of 22/12/2005 in this case (see §37 of the judgment of 07/12/2006 on the application of Article 41 in this case).

10.        According to the Cypriot authorities[5] the enclaved Greek Cypriots continue to be deprived of their rights to peaceful enjoyment of their possessions in case of their permanent departure from northern Cyprus. The properties seized by the “TRNC authorities” are made available to Turkish settlers or they are sold, in an attempt to further complicate the possibility of return of the properties to their legitimate owners.

11.        In addition, the Cypriot authorities stated that the “TRNC authorities” are, through several administrative measures, effectively forcing enclaved persons to permanently leave northern Cyprus.

13.        The reasons the Turkish authorities have provided to justify this interference, i.e. ensuring that the relevant properties are protected, preventing violations of tax legislation and avoiding liability arising from regular wear and tear, are not convincing.  This is especially the case since certain important restrictions on the freedom of movement between northern and southern Cyprus have been lifted after the Court’s judgment in this case, which should make it possible for people who have permanently departed northern Cyprus to reside in southern Cyprus, or for their relatives or friends, to regularly visit their property in northern Cyprus and assume all responsibilities they have as owners.

14.           Since the current state of law in the “TRNC” still allows for what appears to be an unjustified interference, under the Convention, with the property rights of Greek Cypriots after their permanent departure from northern Cyprus, the Turkish authorities are invited to provide further information on this issue, in particular on how they plan to solve this shortcoming.

15.           The Turkish authorities also evoke the possibility for the persons concerned to apply to the “Immovable Property Commission”.  Additional information is awaited in this respect, in particular having regard to the fact that the “law” establishing this “Commission” limits its application to “properties abandoned in the north of Cyprus before 13 February 1975” (see Article 2 of the “law”).

III – INHERITANCE RIGHTS OF PERSONS LIVING IN THE SOUTH IN RESPECT OF PROPERTY IN THE NORTH OF DECEASED GREEK CYPRIOTS

The inheritance rights are regulated by the “Wills and Succession Law (Chapter 195)”.  In accordance with the recent interpretation of Article 13 of the “Constitution of the TRNC” (see §4 above), given by the “TRNC Constitutional Court” this “Law” recognises the inheritance rights of Greek Cypriots. Section 16 of the “Law” regulates that nationality is no bar to succession.

18.        The Turkish authorities state that it follows from the above, that Greek Cypriots residing in southern Cyprus can inherit property from their deceased Greek Cypriot relatives who resided in northern Cyprus and who died leaving property there[7].

20.        The Turkish authorities consider that the condition according to which heirs should start the procedures for the administration of their estate within one year from the date of the death of their relative does not pose a problem[8].  Indeed, in case that the heirs do not reside in the whereabouts of the deceased relative, they will be considered as persons of limited legal capacity.  Such situation is governed by Section 48 of the “Law on the Administration of Estates (Chapter 189)” which provides the following:

“(1) the muhtar[9] has the obligation to undertake all necessary inquiries to ascertain who are the heirs of the deceased person; and if it shall appear that any of such heirs are of limited legal capacity, the muhtar shall proceed to ascertain what property the deceased owned, and shall forthwith forward to the probate registrar of the district within which the deceased resided a report containing an announcement of the death of the deceased, the date of his death, the names of the heirs, the names of those with limited legal capacity and of those residing outside the “TRNC”, the names of some of the nearest relatives of the deceased and a list of the property left by him, stating the approximate value of the property…

(2) the muhtar shall make enquiries with the heirs and close relatives on whether the deceased had any debtors and, if so, shall make a list of the property and money that is owed and the names of the debtors and shall include this list in the list mentioned under (1)”.

In addition, according to subsection (4), the muhtar shall have fines imposed on him in cases in which he willfully and without just cause fails to perform duties imposed on him by this section.

21.        Given that there is no hindrance to crossing between northern and southern Cyprus, the detailed information gathered by the muhtar shall be easily available to all heirs, justifying the one-year time limit for application.

22.        The Turkish authorities also state[10] that there are a number of options available to the heirs once they inherit the property concerned. If the heirs choose to permanently reside in northern Cyprus, they will be subject to the protection of the above-mentioned Article 13 of the “TRNC Constitution” (see §4 above).  If the heirs decide not to permanently reside in northern Cyprus, they will have the same options that are available to Greek Cypriots who permanently leave northern Cyprus (see §§ 6-8 above), i.e. they can transfer the ownership of their immovable property to another person within one year in accordance with section 5 of the “Immovable Property (Aliens) Law (Chapter 109)” or they can apply to the “Immovable Property Commission” and seek compensation, exchange or restitution.

23.        An additional possibility is not to apply for administration of the estate, declare this intention within one year, and instead directly apply to the “Immovable Property Commission”.  This “Commission” has already decided in five cases (2/2006, 3/2006, 4/2006, 7/2006 and 25/2006) to grant compensation to heirs residing in southern Cyprus for properties they inherited in northern Cyprus.  According to the Turkish authorities, it should be emphasised that there is no time limit for application to the “Immovable Property Commission”.

25.        The Cypriot authorities also state[12] that inheritance rights of relatives of deceased persons with property in northern Cyprus are not recognised if these relatives reside permanently in southern Cyprus.  As mentioned above in §10, the properties seized by the “TRNC authorities” are made available to Turkish settlers or they are sold, in an attempt to further complicate the possibility of return of the properties to their legitimate owners.

27.        However, it appears from the information received, that in case of decease of a person residing in northern Cyprus, his or her heirs, non residing in the north of Cyprus can not – like the persons who decide to permanently depart from this part of the isle (see §§6-8 above) – decide to keep the property without starting to use it as their permanent residence.  Indeed, they have the choice only between two options:

- either to permanently reside in northern Cyprus or

- to transfer their inherited property to a person who resides permanently there.

28.        In consequence, since the current state of law in the “TRNC” still allows for what appears to be an unjustified interference with the property rights of Greek-Cypriot heirs from southern Cyprus of immovable property in northern Cyprus, for which the Turkish authorities did not provide satisfactory justification, additional information are necessary, in particular on how they envisage to remedy this apparent shortcoming.

29.        Concerning the additional possibility for the heirs, mentioned by the Turkish authorities, to apply to the “Immovable Property Commission”, additional information is awaited, in particular having regard to the fact that the “law” establishing this “Commission” limits its application to “properties abandoned in the north of Cyprus before 13 February 1975” (see Article 2 of the “law”). Copies of the decisions mentioned in §23 above would be useful.

30.        Moreover, notwithstanding the duties of the muhtar (see §20), a one-year time limit for application for administration of estates after a person dies seems rather short. Indeed, notwithstanding the fact that restrictions on the freedom of movement between northern and southern Cyprus have been lifted, it may prove difficult to inform the relevant beneficiaries of the death, since they will not necessarily be close relatives of the deceased or even not residing on the isle. It would therefore seem advisable for this time-limit to start running from the date on which the beneficiary is informed of the death.

31.  If this modification is not envisaged, information would be useful on the possibility of heirs from southern Cyprus, who find out about the death of their relative more than one year after the event, to challenge the fact that their inherited property has been declared ‘abandoned’ and has reverted to the “TRNC authorities”.