Demopoulos -v- Turkey

Summary: Rights of Greek Cypriots to take action to recover their property in Northern Cyprus; Circumstances in which the European Court of Human Rights will permit a claim; Effect on the risk of foreign buyers being sued in their own country.

This case has caused quite a stir. Since the judgement of the European Court of Human Rights (ECHR) was announced a couple of weeks ago I have been contacted by a series of journalists and other interested parties. All of them have been very confused about the situation. This is not surprising as the position is both complicated and confusing. It is, however, a case of great importance if you own or you are thinking of buying property in The Turkish Republic of Northern Cyprus (TRNC).

The case is an interesting example of what happens when the legal system crashes with politics.

When commenting on the situation in Cyprus you are bound to offend somebody and so I apologise now.

You will remember the background. In 1974 the Turks invaded/liberated the northern part of Cyprus and turned it into what is, in effect, a separate country. Many thousands of Greek Cypriots were displaced and became refugees in the south and many Turkish Cypriots were displaced and moved to the north. This left lots of property in the north the title to which was still in the name of the original Greek Cypriots and a lot of property in the south the title to which was still in the name of the Turkish Cypriots who had now moved to the north.

Arguments about this land have continued for over 35 years. They reflect the bitter divisions still experienced in Cyprus as a result of not only the events of 1974 but also Cyprus’ earlier history. In my view, those feelings will not go away until a political solution is found to the Cypriot problem and, maybe, not for 25 years after that. Spilled blood takes a long time to dry.

Since 1974 there have been a series of court cases to try to sort out the legal issues arising out of the effective division of the island.

A large number of those have ended up before the EHCR. In early cases, and in accordance with general international law, EHCR took a very strong line. Aggressors could not acquire rights by invasion. They and the United Nations declared the Turkish occupation of Cyprus and TNRC illegal and TNRC of no legal authority.

There are currently about 1475 cases pending before EHCR about the rights of Greek Cypriots relating to property in northern Cyprus.

Mr Demopoulos started his case in 1999. These cases do not move quickly! His and a number of other cases were used, together, as a ‘test case’ to allow EHCR to consider the basic principles of what should happen to these property disputes. The case was heard in November 2009 and the judgement announced in early March 2010. As I said, these cases do not move quickly.

To cut a (very) long story short, the court decided the court decided that it could not deal with Mr Demopoulos’ claim.

A large number of arguments were advanced but, basically, the reason they declined to deal with the case falls into two parts. Article 35 of the European Convention on Human Rights says that you can only bring a case to EHCR if you have ‘exhausted all domestic remedies’. In other words, you can only go to the EHCR if your rights have been broken and you have tried to get justice through the local courts and failed.

In this case Mr Demopoulos and the others have not tried to do this. In Northern Cyprus the government had set up a body called The Immovable Property Commission (IPC). This was specially set up to deal with these cases. On the face of it, therefore, it would seem obvious that Mr Demopoulos and the others were not entitled to take their cases straight to ECHR. But it is not that simple. He and the others argued (amongst other things) that they should not have to use the IPC in this case. They claimed that by going to this commission they were being forced to acknowledge the validity of the government of Northern Cyprus. They claimed that this commission did not provide any real or effective remedy because of its bias against Greek Cypriots, because it almost never ordered that property should be returned to them and because any compensation awarded was only a small fraction of what the property was worth.

The ECHR rejected these claims. It decided that the IPC procedure appeared to be reasonable and that people must try it – and the appeal mechanism built into the procedure for dealing with cases where the claimants were dissatisfied – before they could (if they still felt their rights had been breached) make an application to EHCR.

I think very significantly, the court said that it was now 35 years since these events took place and we all have to live with the fact that times have moved on. You cannot just freeze people’s rights in 1974. To do this could cause great injustice to other people.

So what does this mean in practice?

First, it means there can be a long delay before these cases are dealt with by IPC and any appeals are dealt with. Think years, not months.

Second, in almost all cases the best the Greek Cypriot is going to get is an order for compensation rather than the return of his land or, possibly, and exchange of his land in Northern Cyprus for land belonging to a Turkish Cypriot in Southern Cyprus. Whether that compensation will be fair and reasonable remains to be seen.

How does this affect the foreign owner of property in Northern Cyprus?

If they have got the proper paperwork showing ownership of the property under the TRNC rules, it is now unlikely that the Greek Cypriot will be entitled to recover possession of their property. The worst they would face would be an order to pay compensation for the value of the property which, of course, could still be a lot of money.  However, they will only face that risk if:

• IPC orders the payment of compensation –usually paid out of its fund – and the money is not paid
• OR – and do not underestimate this possibility – after going to the IPC, the claimant appeals against the decision and after the appeal is dealt with by the courts he still alleges that the process is in breach of his human rights.  That case could then be taken back to ECHR which, it seems to me, would then have the power to deal with it.

How does this ties in with the recent Orams case?

If the Greek Cypriot owner of the property obtained a judgement in the Cypriot courts against the new foreign owner of the property then, under the European Union Rules, that judgement will still be capable of being enforced against the foreign owner in the EU country in which he lives or has assets. However, because of the delays in the system, it could be some years before this position was reached and it is now much less likely that he would be able to obtain such a judgment.

What should the owner of a property in Northern Cyprus do now? They should take good legal advice. They will have to decide whether to ‘seize the moment’ and try to negotiate a settlement with anybody claiming ownership of their property or whether to drag things out for as long as possible in the hope that the problem will go away.

As I said at the outset, this whole situation is a minefield full of great legal complexity. That is never good for the people who stumble into the minefield. Whenever a lawyer says a problem is interesting it means that it is difficult and expensive! However, the position has now got a lot clearer. Those who took the risk and bought property in Northern Cyprus a few years ago will breathe a little easier. Was this the right decision? For someone interested in upholding international legal rights, probably not. It sends the message – which will, undoubtedly used in other cases – that if you do something wrong and stall things for long enough you may get away with it. All in all, this seems pretty much like a victory for Turkey and another cause for grievance for the people of Cyprus. However, it may just send the message that everybody needs to ‘get real’ and negotiate sensible solutions to these long running and very painful legal disputes. To that extent it was a good decision.

John Howell