I. INTRODUCTION
The island of Cyprus, partitioned following the intercommunal strife and Turkish military intervention of the mid-1970s, presents one of the world's most enduring and largely ignored conflicts. Active armed hostilities have long since ceased and in recent years there have been signs of possible resolution. Hopes were, for example, raised when, on 31 March 2004, the Annan Plan—a UN-sponsored attempt to create a single federated republic—was finalized. But these were dashed when, in referendums held on both parts of the island on 24 April 2004, only 24 per cent of Greek Cypriots, on a turnout of 89 per cent, voted in favour, compared with 65 per cent of Turkish Cypriots, on a turnout of 87 per cent. In July 2017, a fresh, UN-initiated, round of negotiations also ended without agreement.Footnote 1
Developments have, nevertheless, occurred in the shadow of the stalemate. One concerns the Immovable Property Commission (IPC), created under pressure from the European Court of Human Rights (ECtHR) in 2005 by the ‘Turkish Republic of Northern Cyprus’ (TRNC) to compensate Greek Cypriots for both moveable and immovable property abandoned in the north when they fled south in the mid-1970s. In this article we seek critically to appraise this distinctive legal attempt to address a long-standing systemic human rights problem affecting thousands. But before considering how the IPC operates, and evaluating its performance, we begin by briefly describing how and why it was established.
II. BACKGROUND
The two principal background elements concern the ‘Cyprus problem’ and the contribution made by the ECtHR to resolving the challenge presented by abandoned Greek Cypriot property in the north.
A. The Cyprus Problem
Since ancient times Cyprus has been governed by a succession of rulers including the Assyrians, Egyptians, Persians, Romans, Greeks, Knights Templar, Venetians, Turks and British.Footnote 2 It became part of the Ottoman Empire in 1571 and in 1878, as part of a developing common Anglo-French-Ottoman front against Russian expansion, Turkey agreed that it should be occupied and administered by the UK.Footnote 3 By the early twentieth century, encouraged by the continued haemorrhaging of Ottoman power, Greek Cypriots, the majority community, aspired to unite the island with Greece (enosis), mirrored by the competing Turkish Cypriot goal of union with Turkey (taksim).Footnote 4 Post-Second World War decolonization of the British Empire therefore raised awkward questions about the status and form an independent Cyprus should take. In 1955, advocating enosis, the Greek Cypriot organization EOKA embarked on a guerrilla war of independence, opposed by Turkish Cypriots and harshly resisted by British forces.Footnote 5 A vicious cycle of anti-colonial and inter-communal violence erupted with relative peace restored by the onset of negotiations in 1968.Footnote 6 However, a military coup in 1974, instigated by Greek officers of the National Guard, precipitated further violence. The Turkish army intervened and the island, including the capital Nicosia, was partitioned into northern and southern zones.Footnote 7 Abandoning their property in the north, around 30 per cent of Greek Cypriots fled south while 40 per cent of Turkish Cypriots moved in the opposite direction.Footnote 8 In 1983 the northern zone declared itself the ‘Turkish Republic of Northern Cyprus’, which is recognized as a State only by Turkey and regarded by the rest of the world as an illegally occupied part of the independent Republic of Cyprus.Footnote 9
Today almost 80 per cent of the island's population of just under 1.5 million live in the Greek south, which accounts for 63 per cent of the territory, while just over 20 per cent (313,600) live in the Turkish north.Footnote 10 Although there is some dispute about the figures, it is also estimated that Greek Cypriots abandoned 1,463,382 donums (1 donum = 1,338 square metres) of property in the north, and that Turkish Cypriots left 413,177 in the south.Footnote 11 Many of the approximately 142,000 Greek Cypriots who became displaced in the south were temporarily settled by the Republic of Cyprus in property vacated by Turkish Cypriots, or in houses purpose-built on Turkish Cypriot land, while many of the approximately 55,000 displaced Turkish Cypriots were settled in Greek Cypriot property by the authorities in the north.Footnote 12 In August 1975 the leaders of the two parts of the island reached the Vienna Agreement III,Footnote 13 interpreted by Turkish Cypriots as recognition of partition (the so-called principle of ‘bizonality’) and population exchange. This enabled members of each community who found themselves part of the minority on either side of the border to move to the other side if they so wished. By September 1975 only 130 Turkish Cypriots were left in the south and, although the number of Greek Cypriots in the north decreased more gradually, by 2017 only 333 remained there.Footnote 14
In 1977, in an attempt to regularize the occupancy of abandoned Greek Cypriot property in the north, the Turkish Cypriot authorities passed the first of a series of laws to allow transfer of title based on the surrender of abandoned land of equivalent value in the south.Footnote 15 Comparable Greek Cypriot policy has, however, been significantly different. Under the 1991 Guardian Law, while Turkish Cypriots retain legal title to their southern property, the Republic of Cyprus assumes guardianship. Although the land can then be leased to displaced persons or used for other public purposes, sale, exchange or transfer is prohibited without the Guardian's consent. The principal conditions for the original owners to claim and to exercise other rights over their abandoned properties is to prove they live permanently abroad or have settled in the Greek sector for a minimum of six months.Footnote 16
B. The European Court of Human Rights and Abandoned Greek Property in Northern Cyprus
In the wake of partition numerous cases, raising a variety of complaints, have come before the European Commission of Human Rights and the ECtHR in Strasbourg.Footnote 17 However, we are concerned here only with those relating to abandoned Greek property in the north. In the first of these, Loizidou v Turkey,Footnote 18 the applicant complained of having been prevented by Turkish forces from returning to her abandoned property in Kyrenia on the north coast.Footnote 19 The majority of the ECtHR held that, since this had led to her completely losing control of it, Article 1 of Protocol No 1 ECHR (the right to peaceful enjoyment of possessions) had been breached. However, since Mrs Loizidou had never occupied the land as her ‘home’, it was held that there had been no violation of Article 8 ECHR (the right to respect for private and family life, home and correspondence).
The Loizidou judgment opened the door to many similar claims.Footnote 20 In Xenides-Arestis v Turkey Footnote 21 the respondent government claimed that since the applicant, who was in a similar position to Mrs Loizidou, had not applied to the Immovable Property Determination, Evaluation and Compensation Commission (IPDECC)—established in northern Cyprus on 30 July 2003 in response to the Loizidou case—there had been a failure ‘to exhaust domestic remedies’ as required by Article 35(1) ECHR. Rejecting this claim, upholding the complaint, but remitting its final decision on just satisfaction, the ECtHR concluded that the IPDECC could not be considered an effective remedy until difficulties regarding the status of its members, issues relating to Articles 8 and 14 (the prohibition of discrimination) ECHR, and the provision of compensation for non-pecuniary losses, and for movable as well as immovable property, were resolved. It was also held that ‘the respondent State must introduce a remedy which secures genuinely effective redress for the Convention violations identified in relation to the present applicant as well as with respect to all similar applications pending before it’.Footnote 22
As a result, the TRNC enacted a new compensation statute—No 67/2005, the ‘IPC law’—replacing the IPDECC with the IPC, at least two of the seven members of which must be non-Cypriot and nationals of States other than the UK, Greece, or Turkey.Footnote 23 The legislation, which came into force on 22 December 2005, states that its purpose is:
to regulate the necessary procedure and conditions to be complied with by persons in order to prove their rights regarding claims in respect to movable and immovable properties within the scope of this Law, as well as, the principles relating to restitution, exchange of properties and compensation payable in respect thereof, having regard to the principle of and the provisions regarding protection of bizonality … without prejudice to any property rights or the right to use property under the Turkish Republic of Northern Cyprus legislation or to any right of the Turkish Cypriot People which shall be provided by the comprehensive settlement of the Cyprus Problem.Footnote 24
In its judgment on the merits of Xenides-Arestis v Turkey, the ECtHR accepted that, in principle, these new arrangements met Convention requirements. As a result, €800,000 were awarded for the applicant's pecuniary, and €50,000 for non-pecuniary, loss.Footnote 25 By November 2009, 433 cases had been lodged with the IPC, 85 of which had been concluded mostly by friendly settlement. In four, the IPC ordered restitution and compensation, in two exchange, and in one the applicant decided to defer restitution until the Cyprus problem itself was solved. Compensation was awarded in more than 70 cases, involving some 361,493 square metres of property, and approximately €47 million were paid in damages.Footnote 26
The case of Demopoulos and others,Footnote 27 lodged with the ECtHR between 1999 and 2004 before Law No 67/2005 was passed, provided a further opportunity for the Convention-compliance of the new arrangements to be considered at Strasbourg. The ECtHR concluded that the limited provision for restitution in the IPC law was not fatal to its effectiveness as a remedy because changes in occupation and usage of abandoned properties since partition had rendered this problematic, though without depriving the original owners of title.Footnote 28 If, as in such circumstances, the nature of the violation did not allow for restitution, compensation could, therefore, be permitted as an alternative.Footnote 29 It was also held that although an exchange of property provided another form of redress, its impact upon those in current occupation should not create disproportionate new wrongs. Rejecting the applicants’ arguments regarding the ‘accessibility and efficiency’ of the mechanism and their claims that the IPC was not sufficiently independent and impartial, the ECtHR concluded that Law No 67/2005 ‘makes realistic provision for redress in the current situation of occupation that is beyond this Court's competence to resolve’ and that prospective applicants could choose to ‘await a political solution’ to the Cyprus problem instead of applying to the IPC.Footnote 30
III. THE IMMOVABLE PROPERTY COMMISSION
The following sections consider the IPC's procedure, how it operates, and the central challenges it faces.
A. Procedure
Article 159(1)(b) of the Constitution of the TRNC determines the scope of Law No 67/2005 as follows:
(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined … shall be the property of the TRNC … .Footnote 31
The Law also provides, subject to the payment of a fee of 100 Turkish Lira for each application, that all natural and legal persons claiming rights over immovable or movable properties within the IPC's jurisdiction may bring claims against the Ministry of the Interior requesting compensation, restitution or exchange. The legal deadline, which can be extended, is currently 21 December 2019.
Applicants may apply in Turkish in person, by a representative or through a lawyerFootnote 32 upon the sample form attached to the Rules, also available on the IPC website.Footnote 33 The Ministry of the Interior and/or Attorney General of the TRNC must be nominated as the respondent party or parties.Footnote 34 Documents, including originals or duly approved copies of title deeds and identity cards or passports, may be submitted in Greek or English at any stage of the process for translation into Turkish by IPC translators, while those submitted by the defendant in Turkish are also translated into Greek or English. Claims over the same property—including mortgages, court orders or other charges registered on or before 1974—must be discharged before the application can proceed. For movable property, applicants must either submit the originals, or duly approved copies of documents, such as receipt, cheque, bank transfer, exchange transfers, proving ownership before 13 February 1975, or that the property in question was hitherto acquired by way of inheritance or gift.Footnote 35 Considering the manner and circumstances in which property in the north was abandoned, and the long passage of time since, this presents a considerable challenge.
The Ministry of the Interior is also required to prepare a friendly settlement agreement and to invite the applicant to visit the IPC in order to sign it. If this results in compensation being accepted, all the applicant's rights over their property are relinquished and title is transferred to the TRNC. In the absence of friendly settlement, the IPC can examine applications, collect written and oral testimony, hear witnesses, summon any person residing in the TRNC to give testimony and/or to produce any document, compel anyone to give evidence, and award expenses to any persons summoned.Footnote 36 It is an offence to refuse to produce any documents or information required by the IPC, and to fail, without legal excuse, to appear or decline to give evidence. Monetary fines may be imposed upon conviction.Footnote 37 The standard of proof the applicant must meet is ‘beyond reasonable doubt’. After hearing the arguments of the parties, examining the documents submitted, and having taken relevant considerations into account, the IPC decides whether to order restitution, to offer exchange, or to pay compensation including the amount and method of payment. In addition to these remedies the applicant may also claim compensation for loss of use and/or for non-pecuniary damage.Footnote 38 IPC decisions have binding effect, are executory, are required to be implemented without delay upon being served on the authorities concerned,Footnote 39 and can be appealed to the High Administrative Court of the TRNC.
B. Operation
As of 29 December 2017, 6,392 applications had been lodged with the IPC, 873 of which were settled by the award of compensation, 850 by friendly settlement at the preliminary hearing stage and 23 by adjudication on the merits. Exchange and compensation was awarded in two cases, restitution in three, restitution and compensation in six, restitution after the settlement of Cyprus problem in one, and partial restitution in one other case. The number of applications withdrawn was 172, either because the applicants no longer wished to pursue them, because ownership was not proven, or because of other legal difficulties such as failure to provide documents as requested by the defendant. The rate of applications to the IPC has also fluctuated over the years, with a recent reduction possibly influenced by delays in the award of compensation. For example there were 1,926 applications in 2011, which decreased to 375 in 2014, and dropped further to 182 in 2015, to 50 in 2016, and to 81 in 2017.Footnote 40 The IPC's website states that a total of £266,231,421 has been awarded,Footnote 41 making an average of £304,961 for each of the 873 applications finalized exclusively by compensation. Approximately £55 million of the total amount of compensation awarded has still not been paidFootnote 42 and roughly £2 billion will be needed to finalize the 5,000 or so applications awaiting resolution.Footnote 43 The three main remedies, compensation, restitution and exchange, are considered in turn below.
1. Compensation
According to Article 8(4) of Law No 67/2005, if the applicant's claim is for compensation, or if the IPC decides to award it, the following points are taken into account in determining the quantum: the market value of the property on 20 July 1974; any increase or decrease between 1974 and the date of payment; whether the applicant possesses property in the south belonging to a Turkish Cypriot; whether the applicant receives income from, or pays rent for, such property; in determining non-pecuniary damages and market value at the time of the decision with respect to claims concerning compensation for movables, the use of the property and the links the applicant has with it.
2. Restitution
Since the IPC law is intended to respect the principle of bizonality, a UN parameter for negotiations about the Cyprus problem, restitution of immovable property can be effective either subsequent to the settlement of the Cyprus problem, or subject to the following conditions, within a reasonable time following the IPC's decision.
(a) It has not been transferred to any natural or legal person other than the State, it is not inside a military area or a military installation, it has not been allocated in the public interest, and its restoration to the original owner would not endanger national security or public order as a result of its location and physical condition.
(b) If the conditions set out in paragraph (a) above are not met, and if the property has not been allocated for the purposes of public interest or social justice, then a more detailed examination should be made by the IPC for restitution to take effect after the settlement of the Cyprus problem.Footnote 44
3. Exchange
A third remedy provided by the IPC law is exchange of a property in the south for one of equal value to that which the applicant claims in the north. If the former is of higher value than the latter, the applicant must pay the difference. However, if the latter has the higher value, the difference shall be paid to the applicant. Applicants requesting exchange may also claim compensation for loss of use and non-pecuniary damage arising from violation of the right to respect for their home. So far the IPC has ruled in favour of exchange and compensation in only two cases brought with respect to 51 plots of land in Kyrenia by the same applicant. Following a successful application to the ECtHR,Footnote 45 in 2006 the IPC awarded $1.2 million compensation plus restoration in exchange for a large Turkish Cypriot-owned plot in Larnaca in the south.Footnote 46 However, since this land could not be let to the applicant because schools had been built on it, the Government of the Republic of Cyprus purchased it from him.Footnote 47 Satisfied that these arrangements were based on respect for human rights as protected by the Convention and its Protocols, the ECtHR struck the case out of its list.
C. Challenges
The key questions which arise about the IPC are—how successful has it been, according to what criteria, and how might its peformance and contribution be improved? To begin with it is important to judge it according to its specific origins and mandate. As already indicated, it was never intended even to contribute towards resolving the Cyprus problem but rather to provide a remedy for the systemic violation of the right to peaceful enjoyment of property stemming from the losses sustained by Greek Cypriots displaced from north to south in the 1970s. As the figures above indicate, it has been a modest success according to this standard. It has, nevertheless, suffered from several problems including: excessive length and alleged unfairness of proceedings, the transparency of its decisions, corporate ownership, mortgages and other encumbrances, exchange, and the execution of judgments awarding compensation.
1. Length and fairness of proceedings
Complaints about excessive length of proceedings and delays, caused not least by the IPC adjourning default applications, have been litigated both before the High Administrative Court of the TRNCFootnote 48 and the ECtHR. In Meleagrou and others v Turkey Footnote 49 the applicants claimed, among other things, that the length and unfairness of proceedings and the IPC's lack of independence, violated Article 6(1) ECHR (the right to fair trial). The ECtHR noted that a period of four years and eight months, including proceedings at the High Administrative Court of Appeal, had elapsed between the application being lodged and resolved which, it concluded, was not unreasonable in the circumstances.Footnote 50 Complaints of unfairness stemming from language difficulties at both the IPC and the High Administrative Court, and that the applicant's case had not been fully addressed by either, were also rejected on the grounds that representation was provided by a lawyer who understood Turkish and that translation facilities, including English versions of key documents, were available.Footnote 51 The application was, therefore, ruled manifestly ill-founded.Footnote 52 However, in Joannou v Turkey the ECtHR held that Article 1 of Protocol No. 1 had been violated because the manner in which the IPC had proceeded lacked ‘coherence, diligence and appropriate expedition’ as this provision requires.Footnote 53 The ECtHR noted that the proceedings before the IPC, which began in 2008 and had still not been formally concluded by 2017, were marked by repeated requests by the authorities for the applicant to submit additional documents and that the IPC itself had ‘remained passive as regards these … making no effort to assess their reasonableness or relevance or to ensure that the parties’ submissions were properly obtained and administered’.Footnote 54 The fact that the IPC does not have an independent budget and is subordinate to the Ministry of Interior, the defendant in its proceedings, also potentially raises doubts about its independence, credibility, and fairness, but these have yet to be litigated in Strasbourg.
2. Transparency
Since its reasons are not made public, it is difficult to determine how the IPC applies the statutory criteria for awarding compensation outlined above. However, judgments of the High Administrative Court shed some light on the matter. In application no 23/2008,Footnote 55 for example, the Ministry of the Interior and the Attorney General's Office argued that the IPC's decision had not been properly reasoned. The High Administrative Court considered whether the material and legal basis could, nevertheless, be inferred from its judgment. It noted that, while £2.5 million had been awarded for loss of use and market value, the IPC had not clearly indicated how this figure had been reached and how much had been awarded separately under each head. The judgment stated that ‘in assessing the value of the property’ the IPC had taken ‘into account the purchase price of 135,000 Cyprus Pounds paid in 1973; the purchase price of GBP 1,400,000 agreed in 2006 … (and) … the offer of the Interested Party in 2007 to pay GBP 1,750,000 for the property’.Footnote 56 However, the High Administrative Court quashed its decision on the grounds that it had been delivered without sufficient justification because, although during the hearings, expert witness testimonies were heard and reports submitted as exhibits, the IPC had failed, as required by Law No 67/2005, to explain how the sum of £2.5 million had been determined. Nor had it indicated to which pieces of evidence it had given credit, how much weight had been attached to them, and which had been discarded.Footnote 57 It should be noted, however, that commentators have also criticized the ECtHR itself for not disclosing the basis of its calculations in determining the quantum of just satisfaction awards.Footnote 58
3. Corporate ownership
Article 6(2) of the IPC law states that the applicant must prove beyond reasonable doubt that, inter alia, the immovable property was registered in their name on 20 July 1974 or that they inherited it legally. This creates difficulties where abandoned property is in corporate ownership because, in Meleagrou and others v Turkey the ECtHR rejected complaints that Article 1 of Protocol No 1, Article 8 and 14 ECHR had been violated in respect of fourteen plots of land owned by a registered company on the grounds that they were incompatible with the Convention on the ratione materiae criterion since the applicants could not claim property rights in land owned by a company, still in existence, in which they were shareholders.Footnote 59
4. Mortgages and other encumbrances
Another problem faced by the IPC arises from the fact that the Ministry of the Interior is unwilling to make an offer of friendly settlement, and to take over properties, unless encumbrances such as mortgages, created on or before 20 July 1974, have been discharged. In such circumstances applicants have two choices. They can either contact the lender, usually a bank, to have the encumbrance discharged from the title at the Land Registry Office, or file a case at the relevant District Court (each in the north) to have it cancelled. The former is very difficult in practice and obtaining a judicial decision to cancel a mortgage can also be time consuming. However, it can nevertheless be achieved as two applicants proved, the first time the issue of mortgages in IPC proceedings was brought before the TRNC's law courts.Footnote 60 Both the District Court and the Court of Appeal cancelled the mortgage in question, stating that the applicant had made the payment required. The obligation to discharge mortgages/encumbrances on abandoned property might be considered an obstacle for applicants in IPC litigation, since it involves interests in addition to those of the applicant. But it is not a matter which the domestic legal system can simply ignore. There is, however, scope at the preliminary hearing stage for improving how this issue is managed. Currently, the Ministry does not make an offer where there are mortgages/encumbrances on the property and, in such circumstances, the IPC also postpones the application indefinitely. A new preliminary hearing date is only provided once it has been proven that the mortgage/encumbrance has been discharged. However, if a conditional offer were made at the first preliminary hearing, the IPC could reach a final decision, without the need for a second preliminary hearing, once all the requisite documents had been submitted.
5. Exchange
As Tymvios revealed, better cooperation and coordination by the authories both north and south could make exchange smoother and more effective. Applicants might, for example, be more likely to choose this option if they received a positive or early response when attempting to do so and if a list of relevant properties was available. Practical difficulties of this kind could also be reduced if joint or parallel remedies for both Greek and Turkish Cypriot property claims were provided along the lines of the Property Commission envisaged by the Annan Plan.
6. Execution of judgments awarding compensation
Problems regarding the payment of compensation, including the lack of provision for interest, have also arisen.Footnote 61 For example, a successful IPC applicant filed a ‘writ of seizure and sale’, available to enforce court decisions, for eleven cars possessed by the TRNC Ministries of Finance and Agriculture.Footnote 62 However, cancelling it, the District Court of Nicosia stated that the friendly settlement agreement relinquishing relevant rights had not been signed, and that the decision of the IPC could, therefore, not be executed. Observing that Law No 67/2005 does not make the procedure and mode of enforcement clear,Footnote 63 the Court of Appeal held that the IPC's decision is not complete unless the Ministry responsible for Housing Affairs prepares a draft friendly settlement agreement and an invitation letter is served upon the successful applicant inviting signature within a month. It concluded, therefore, that until this occurs, the defendant is not obliged to pay the compensation awarded and it is thus not possible to file a writ of seizure and sale for execution. However, when the applicant applied to the ECtHR, the respondent paid up immediately and the complaint was withdrawn.Footnote 64 Yet, in spite of this, not only is prompt payment apparently not happening, but, as already indicated, delay also seems to have led to a sharp decrease in the number of applications to the IPC. Solutions under discussion include a legal requirement upon current owners to contribute to the payment of compensation. But establishing an independent IPC compensation fund might provide a more attractive solution than, as some propose, requiring current owners to contribute to the sums awarded.
IV. CONCLUSION
Several things are clear about the origins and character of the IPC. First, it is unlikely that it would ever have been established had it not been for a series of successful applications to the ECtHR from Greek Cypriots. Second, through these cases, its character has effectively been negotiated with Strasbourg by the authorities of the TRNC and Turkey. Third, while restitution or exchange of abandoned property may be awarded, the most commonly offered and most straightforward remedy is compensation.
Judged by its own rationale and mandate the IPC has been a modest success. A total of £266,231,421 has been awarded in compensation, an average of £304,961 for each of the 873 successful applications. But there have been challenges. Exchange has proven difficult on account of problems both with the process and in finding suitable, unencumbered matching properties. And, while the ECtHR has found IPC proceedings fair, they have nevertheless been lengthy. There have also been issues with the transparency of IPC decisions and the execution of judgments awarding compensation, each familiar difficulties with judicial and quasi-judicial processes in many States in Europe and elsewhere. And while the relevant law could be amended to deal with corporate ownership, this is not so easy for mortgages and other encumbrances.
But a bigger, and more complex question concerns the IPC's contribution to the resolution of the Cyprus problem more generally. Clearly, it was never intended to be even an ingredient in a more comprehensive settlement. Indeed, its principal rationale was to provide limited relief to a specific class of victim without the wider and deeper conflict needing first to be resolved. But this raises several issues. First, athough fewer in number, there is no comparable process for the abandoned property of Turkish Cypriots in the south. And, while from a material point of view, recompense for abandoned property is merely a matter of money, individuals and families may also have strong sentimental bonds with specific places. Moreover, the identity of traditional communities is often deeply connected with an historic and enduring attachment to territory. Like other divided societies this is one of the central characteristics of the Cyprus problem which a process such as that offered by the IPC is incapable of addressing.
