Strasbourg Observers

Strasbourg dances around the Cypriot question

April 12, 2010

Recently, the Strasbourg Court declared inadmissible a series of applications by Greek-Cypriot applicants claiming a violation of their property rights due to the continued occupation of the Northern part of Cyprus by Turkey.

The eight admissibility cases were the first such applications to be examined by the Court following the pilot-judgment Xenides-Arestis v. Turkey (app. no. 46347/99, 2006) in which the Chamber had found a violation of articles 8 and 1 Protocol 1. In Xenides-Arestis v. Turkey the Court had instructed Turkey to introduce a remedy which secures genuinely effective redress for the Convention violations.

In the decisions of Demopoulos and others v. Turkey and 7 similar cases, the Grand Chamber of the Court declared the applicants’ claims inadmissible due to non exhaustion of domestic remedies. The Grand Chamber was of the opinion that the amended Compensation Law, as enacted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) following the pilot-judgment, provided an accessible and effective framework for redress. It came to this decision despite, inter alia, claims of a lack of subjective impartiality of the responsible body, the Immovable Property Commission (IPC), which features Turkish military personnel among its members, who are all appointed by the “TRNC” President.

The ECtHR clearly had to walk a tightrope in dealing with these cases, pronouncing its decision while avoiding making strong political statements on the Cypriot question. To pre-empt any claims of interference in areas where it does not belong, the Court explicitly stated that the current situation of occupation in Cyprus was beyond its competence to resolve. Instead the Court focused on its task: the guaranteeing of enjoyment by individuals of their inalienable human rights. The Court thus maintained its view that pending resolution of the illegal occupation of northern Cyprus, it was crucial that individuals continued to receive protection of their rights on a daily basis. The Court decided to take a pragmatic approach to this protection by ruling that even if the applicants did not live as such under the control of the “TRNC”, for the purposes of Article 35 § 1 of the Convention, remedies available in the “TRNC”, in particular the IPC procedure, may be regarded as “domestic remedies” of the respondent State. The rule of exhaustion of domestic remedies thus applied.

At the same time, the Grand Chamber was fully aware of the complicated de facto situation in Cyprus and clearly wanted to grant the “TRNC” the opportunity to comply with the pilot-judgment. In one of the most striking paragraphs of the decision, the Court established that, in the light of the many changes some 35 years after the properties were left, it would risk being arbitrary and injudicious for the Court to impose an obligation to effect restitution in all cases – which would result in the forcible eviction and re-housing of many men, women and children – even with the aim of vindicating the rights of victims of violations of the Convention. Since the “TRNC” had lived up to its obligations under the pilot-judgment procedure by amending the law in order to provide effective means of redress, the Strasbourg Court presumably felt a need to encourage the positive consequences given to its pilot-judgment procedure, which is increasingly seen as one of the more promising tools available to the Court to handle its heavy caseload.

At the last instance the Court apparently became aware of the sensitivity of (potentially) legitimating the authority of the “TRNC”. It concluded its decision by stressing that it was not to be interpreted as an obligation to make use of the IPC. The claimants could choose to wait for a political solution. However, it was also made clear that if Greek-Cypriot applicants wish to lodge an application before the European Court of Human Rights in similar cases, the admissibility will be decided in line with the principles established in Demopoulos and others v. Turkey.

By Stijn Smet

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