by Rhodri C. Williams
Along similar lines to my earlier piece on the UNRoD, I recently wrote an introductory note for the publication in International Legal Materials of a key decision on property rights in Cyprus by the European Court of Human Rights.
The Demopoulos decision is interesting from a number of perspectives, but not least for the new approach it brings to the issue of what standards should guide the question of when compensation can be provided in lieu of restitution (an issue I’ve opined on a number of times in the past, including here with regard to the IASC framework on durable solutions for IDPs).
The proper name of the final version of this article is “Introductory Note to the European Court of Human Rights: Demopoulos v. Turkey” and it was published in its final version in the Volume 49 No. 3 issue of International Legal Materials. The version reproduced below is an edited draft.
INTRODUCTORY NOTE TO THE European Court of Human Rights: Demopoulos v. Turkey
BY RHODRI C. WILLIAMS
On March 1, 2010, the Grand Chamber of the European Court of Human Rights decided to reject the applications of seventeen Cypriot citizens against Turkey as inadmissible.[i] The applicants had alleged various violations of the European Convention of Human Rights, but the Court’s decision in Demopoulos turned on examination of their claims related to the right of property under Article 1 of the First Protocol to the European Convention on Human Rights, as well as the right to the home under Article 8 of the Convention.
All of the applicants in Demopoulos are Greek Cypriots who were displaced by the 1974 Turkish invasion and occupation of north Cyprus, and subsequently denied the use of their properties and access to homes they left behind. Essentially, this ruling is the latest in a fourteen-year line of decisions against Turkey related to the unresolved conflict in Cyprus. However, this ruling also breaks with its antecedents. First, it finds that the property claims process set up in Turkish-controlled northern Cyprus may constitute an effective domestic remedy; and, secondly, it requires Greek Cypriot applicants to demonstrate that they have exhausted this remedy before their applications to the Court will be found admissible.
The broader significance of the Court’s decision in Demopoulos is two-fold. On the one hand, the decision represents the most emphatic expression to date of the Court’s determination to implement a new “pilot case” procedure. This procedure is meant to relieve the Court of a large backlog of cases by encouraging States Parties to the Convention to adopt systematic approaches allowing the domestic resolution of repetitive, or “clone” cases pending before the Court. On the other hand, the decision appears to represent a conscious effort by the Court – as one of many international players involved in the protracted negotiations over the Cyprus issue – to strike a practical balance between heretofore irreconcilable Greek and Turkish Cypriot negotiating positions.
II. Background: The Cyprus Conflict and the Court’s Jurisprudence
Since its independence from Great Britain in 1960, politics in Cyprus have been marred by conflict between the island’s Greek Cypriot majority and its Turkish Cypriot minority. In 1963, inter-communal violence led to the displacement of many Turkish Cypriots into enclaves, where they formed a separate Provisional Turkish Administration.[ii] Eleven years later, Greek Cypriot forces overthrew the president of the Republic of Cyprus with the intention of uniting with Greece. Turkey responded by invading Cyprus and occupying over one-third of the island, which resulted in over 2,000 deaths, the displacement of one-third of the Greek Cypriot community to the south, and the flight of forty percent of the smaller Turkish Cypriot community to the Turkish-held north.[iii]
Although the United Nations Security Council repeatedly condemned the Turkish occupation, the resulting de facto partition of the island has persisted since 1974, with a UN mission monitoring a buffer zone between the north and south. In the north, a “Turkish Republic of Northern Cyprus” (TRNC) was proclaimed in 1983. The TRNC has not been recognized by any countries other than Turkey and has sought a peace settlement that would legitimize its de facto existence through the creation of two separate zones, administered and peopled by the Greek and Turkish Cypriots, respectively.[iv] Accordingly, the TRNC authorities purported to confiscate property left behind in the north by displaced Greek Cypriots. It has allocated such properties to displaced Turkish Cypriots in exchange for the surrender of any title to property they had left behind in the south, thereby seeking to lay the ground for a global exchange of claimed homes.[v]
Meanwhile, the Republic of Cyprus (RoC) is limited to the Greek Cypriot-populated south but remains seen as the legitimate government of the entire island. As a result, the policy of the RoC has been to prepare the ground for an eventual reversal of the effects of the Turkish occupation by encouraging displaced Greek Cypriots to demand unconditional return of their properties in the north and holding homes left behind by Turkish Cypriots in trust, rather than confiscating them.[vi] Threatened with the expulsion of the few Greek Cypriots remaining in the north in 1975, the RoC government agreed to allow all remaining minorities to freely decide on whether to remain in place or move to the other half of the island.[vii] Over time, this resulted in the virtually complete demographic un-mixing of the island, with Turkish Cypriots concentrated in the north and Greek Cypriots in the south.
The European Court of Human Rights became a factor in the Cyprus dispute with its 1996 merits decision in Loizidou v. Turkey.[viii] In Loizidou, the Court found that Turkey exercised overall control of northern Cyprus, thereby ascribing the alleged violations to Turkey.[ix] The Court also ruled that the lack of international recognition of the TRNC rendered acts, such as its attempted confiscation of Greek Cypriot properties, legally invalid, confirming the applicant as the owner of the property she had left behind.[x] Noting that the applicant had been refused access to or use of her property since 1974 without valid justification, the Court found a violation of the right of property under the First Protocol to the Convention.[xi]
Five years later, the Court extended its findings in Loizidou in its decision on the interstate complaint of Cyprus v. Turkey.[xii] Relying on Loizidou, the Court affirmed Turkish responsibility for violations in the TRNC[xiii] and found that all displaced Greek Cypriots remained owners of property left behind. This conclusion rendered the TRNC’s policy of denial of access a continuing violation of the right to property.[xiv] The Court extended this reasoning to find ongoing violations of the right to the home under Article 8 of the Convention, in light of a TRNC policy of preventing return.[xv] However, in a finding later crucial for Demopoulos, the Court ruled that, notwithstanding the lack of legitimacy of the TRNC itself, the effectiveness of remedies afforded through TRNC institutions would henceforth be evaluated on a case-by-case basis.[xvi]
As UN-brokered negotiations for a resolution of the conflict intensified in 2003, the TRNC allowed movement between the north and south and enacted a law to provide compensation to displaced Greek Cypriots for their properties in northern Cyprus. However, in the meantime, the Court issued another decision finding Turkish violations on the basis of its prior case-law.[xvii] In April 2004, the Foundation Agreement-Settlement Plan (“Annan Plan”) that had resulted from the UN negotiations was put to referendum. The plan called for some territory to be ceded from the TRNC to the future Greek Cypriot zone, within which complete return and restitution would be permitted. However, restitution rights within the proposed Turkish Cypriot zone would be qualified, with some Greek Cypriots obliged to accept part or whole compensation. While the Turkish Cypriots accepted the plan, Greek Cypriots rejected it.
Commentators have noted that the referendum results on both sides were shaped by the view that, failing a negotiated settlement, the European Court of Human Rights would inevitably settle the issue in favor of the Greek Cypriots.[xviii] However, the Court’s subsequent decisions in Xenides-Arestis v. Turkey unsettled these expectations. In its 2005 admissibility decision, the Court ruled that the aforementioned 2003 TRNC compensation law was not an effective remedy, but provided relatively detailed guidance on measures – such as allowing for restitution of property in some cases and appointing international members to the property commission – that would make it so.[xix]
The subsequent merits decision in Xenides-Arestis followed the established pattern in finding violations of the rights of property and to the home. However, this time the Court ordered a remedy “which secures genuinely effective redress . . . in relation to the present application as well as in respect of all similar applications pending before [the Court]” and adjourned consideration of the latter caseload.[xx] By the time the Court made its judgment on just satisfaction, the TRNC had passed a new “Law for the Compensation, Exchange and Restitution of Immovable Properties.”[xxi] In a revealing piece of obiter dictum, the Court welcomed this step and noted that the new mechanism had “in principle, taken care of the requirements” set out in the earlier decisions.[xxii]
III. The Demopoulos Decision and its Implications
Predictably, in light of the Court’s previous decisions in Arestis-Xenides, the main rulings in Demopoulos affirm that the “Immovable Property Commission” (IPC) created under the new TRNC law could not only be considered a “domestic remedy” in the sense of Article 35 (1) of the Convention,[xxiii] but that it was also effective in making “realistic provision for redress in the current situation of occupation that it is beyond this Court’s competence to resolve.”[xxiv] Greek Cypriot applicants were accordingly advised that they were not required to claim to the IPC, but that the Court would no longer entertain their property claims unless they had done so, and that their only alternative was to “await a political solution.”[xxv] The Court then went on to similarly dismiss the applicants’ claims related to the right to the home, noting that domestic remedies offered by the IPC were “broad enough to encompass aspects of any loss of enjoyment of the home . . . .”[xxvi]
Taken together, Xenides-Arestis and Demopoulos represent the Court’s most recent application of the “pilot-judgment procedure” developed in 2005 “as a means of dealing with large groups of identical cases that derive from the same underlying problem.”[xxvii] Increasing awareness of the significance of the new procedure is reflected in the role it played in the parties’ pleadings in Demopoulos. While the respondent Turkish government claimed to have “cooperated . . . with the Court in bringing the pilot-judgment procedure to a successful conclusion,” the intervening RoC government accused Turkey of “abuse” of the procedure. The applicants themselves warned that Turkey’s appeal to the “administrative convenience” of the Court risked forcing them to “resort to an ineffective remedy [that] would give a wrong signal to Contracting States in any future pilot judgments, thus creating more, not less, work for the Court.”[xxviii]
Nevertheless, the Court’s frustration with repetitive or “clone” property claims from Cyprus is palpable.[xxix] The discussion of exhaustion of domestic remedies begins with a long exposition on the principle of subsidiarity to national systems, in which the Court emphasizes “that it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should be the domain of domestic jurisdictions.”[xxx] In applying this principle to the current case, the Court makes special note of the context, including both the ongoing “intense political dispute” over Cyprus and the passage of thirty-five years since it began,[xxxi] as a prelude to a highly significant conclusion:
Thus, the Court finds itself faced with cases burdened with a political, historical and factual complexity flowing from a problem that should have been resolved by all parties assuming full responsibility for finding a solution on a political level. This reality, as well as the passage of time and the continuing evolution of the broader political dispute must inform the Court’s interpretation and application of the Convention which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances.[xxxii]
This combination of factors – repetitive claims, passage of time, and the failure of the parties to the Cyprus conflict to achieve a political resolution on their own – are then repeatedly invoked by the Court in a series of highly significant holdings. Regarding the Court’s first key finding (that the ILC can be seen as a “domestic remedy” for alleged property violations), these holdings include: a departure from the rule that such remedies must be available at the time that applicants claim to the Court;[xxxiii] an affirmation of its earlier holdings that consideration of remedies proffered by the TRNC is not tantamount to recognition of the regime itself;[xxxiv] and a requirement that applicants must even exhaust remedies afforded by actors whose jurisdiction they do not wish to submit themselves to safeguard the principle of subsidiarity.[xxxv]
In its second key finding related to the IPC’s effectiveness in addressing Greek Cypriot property claims, the Court focuses on specific aspects of the Commission’s procedures and the remedies afforded.[xxxvi] This analysis actually begins earlier in the decision where the Court extensively cites the property-related provisions of the Annan Plan rejected by the Greek Cypriots in 2004, pointedly noting the balance between “the property rights of Greek Cypriots [and] the rights of those now living in the homes or using the land . . . .”[xxxvii] This passage represents an early repudiation of the central Greek Cypriot assertion that restitution must be the primary remedy for property violations, with compensation only acceptable where restitution is materially impossible.[xxxviii]
In assessing the effectiveness of the IPC, which provides for restitution under limited circumstances ostensibly in the spirit of the Annan Plan,[xxxix] the Court notes that it has consistently upheld the validity of Greek Cypriot title and awarded compensation for “loss of rents” due to denied access.[xl] However, the Court now notes that the passage of time has rendered such losses “increasingly speculative and hypothetical”[xli] while giving the Turkish government stronger grounds for adapting remedies on offer to take into account the situation of persons now occupying claimed properties, as well as other factors such as their alleged location in a militarily sensitive zone or use “for vital public purposes.”[xlii] In summarizing its case-law on restitution, the Court then makes the following, on its face somewhat contradictory statement:
The Court’s case-law indicates that if the nature of the breach allows restitutio in integrum, it is for the respondent State to implement it. However, if it is not possible to restore the position, the Court, as a matter of constant practice, has imposed the alternative requirement on the Contracting State to pay compensation for the value of the property. This is because the Contracting Parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach.[xliii]
A reasonable interpretation of this statement in light of Arestis-Xenides and Demopoulos might be that the freedom of choice of States in redressing breaches of the Convention is significantly restricted by the Court’s express preference for restitution in theory, but that States nevertheless retain a degree of discretion to specify conditions under which restitution is deemed impossible in practice. The Court appears to embrace this approach by accepting the potential of compensation and exchange to provide redress, and explicitly rejecting a “material impossibility” standard for restitution that would potentially result in new violations through mass evictions of longstanding occupants of claimed homes.[xliv] Thus, while restitution must still be part of the remedial package, the Court appears to accord a margin of appreciation to States in devising remedies “to assess the practicalities, priorities and conflicting interests on a domestic level even in a situation such as that pertaining in the northern part of Cyprus.”[xlv]
The Court in Demopoulos proceeds to dismiss concerns raised by the applicants related to the independence of the IPC,[xlvi] the levels of compensation provided,[xlvii] the burden of proof placed on IPC claimants,[xlviii] and other issues related to the accessibility and efficiency of the remedy.[xlix] Upon finding the IPC to constitute an effective domestic remedy for property complaints,[l] the Court goes on to a similar and much shorter holding related to the capacity of the IPC to address alleged violations of the right to the home under Article 8 of the Convention.[li] The decision concludes with the summary dismissal of complaints under a number of other Articles of the Convention.
The effects of Demopoulos on the continuing efforts to resolve the Cyprus conflict may be significant. While the Court is, in its own terms, primarily concerned with preventing a human rights vacuum from prevailing in northern Cyprus pending a negotiated resolution of the conflict, it must be aware that its decisions have had a profound impact on the terms of such negotiations. Having pushed in its earlier decisions for Turkey to acknowledge its responsibility for Convention violations in northern Cyprus and redress property confiscations accordingly, the Court sees itself vindicated by the creation of the IPC mechanism.[lii] However, the Court also appears to be frustrated by the high cost of this achievement, to the extent it may have encouraged the Greek Cypriot side to reject a largely human rights-compatible settlement in the form of the 2004 Annan Plan. The Court’s vote of confidence in the IPC might accordingly be read as an attempt to reset the balance; now that the Turkish Cypriot side has been shorn of the conceit that past violations are entirely negotiable, the Greek Cypriots must likewise abandon the notion that they are entirely reversible.
[i] Demopoulos v. Turkey, App. Nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04 (Eur. Ct. H.R. 2010). The eight applications were originally brought by eighteen applicants, but one of the applicants died in 2005. Id. ¶ 1.
[ii] Cyprus: Prospects Remain Dim of Political Resolution to Change Situation of IDPs, Internal Displacement Monitoring Centre, June 30, 2009, at 3, available at http://www.internal-displacement.org/8025708F004BE3B1/%28httpInfoFiles%29/895698DB41320385C12575E50045EB89/$file/Cyprus_Overview_Jun09.pdf.
[iii] Id. at 4 (explaining that 162,000 Greek Cypriots, along with 48,000 Turkish Cypriots, were displaced in the direct aftermath of the 1974 invasion).
[iv] Ayla Gürel & Kudret Özersay, Peace Res. Inst. Oslo [PRIO], Report: The Politics of Property in Cyprus 15 (2006), available at http://www.prio.no/upload/Cyprus%20Property%20Report%202%20Trimmed%20%28corrected%29.pdf.
[v] Id. at 13-14.
[vi] Id. at 20-21.
[vii] Id. at 17.
[viii] Loizidou v. Turkey, App. No. 40/1993/435/514 (Eur. Ct. H.R. 1996).
[ix] Id. ¶¶ 56-57.
[x] Id. ¶ 44.
[xi] Id. ¶¶ 63-64.
[xii] Cyprus v. Turkey, App. No. 25781/94 (Eur. Ct. H.R. 2001).
[xiii] Id. ¶ 80.
[xiv] Id. ¶¶ 187-89.
[xv] Id. ¶¶ 172-75.
[xvi] Id. ¶ 102; cf. Demopoulos, supra note 1, ¶ 72 (noting that this requirement was not applied to property claims at the time, because the TRNC authorities had still considered the property rights of Greek Cypriot claimants legally extinguished).
[xvii] Demades v. Turkey, App. No. 16219/90 (Eur. Ct. H.R. 2003).
[xviii] Gürel & Özersay, supra note 4, at 30-31 (noting that the fact that the subsequent accession of the Republic of Cyprus to the European Union was not made conditional on the achievement of a settlement reduced the Greek Cypriot incentive to make compromises).
[xix] Xenides-Arestis v. Turkey, App. No. 46347/99, Admissibility, at 44-45 (page numbers?) (Eur. Ct. H.R. 2005).
[xx] Xenides-Arestis v. Turkey, App. No. 46347/99, Merits, ¶¶ 40, 50 (Eur. Ct. H.R. 2005).
[xxi] Xenides-Arestis v. Turkey, App. No. 46347/99, Just Satisfaction, ¶¶ 10-12 (Eur. Ct. H.R. 2006).
[xxii] Id. ¶ 37.
[xxiii] Demopoulos, supra note 1, ¶ 103.
[xxiv] Id. ¶ 127.
[xxv] Id. ¶ 128.
[xxvi] Id. ¶ 133.
[xxvii] The Pilot-Judgment Procedure: Information Note Issued by the Registrar, Eur. Ct. H.R., 2009, ¶ 1, available at http://www.echr.coe.int/NR/rdonlyres/DF4E8456-77B3-4E67-8944-B908143A7E2C/0/Information_Note_on_the_PJP_for_Website.pdf.
[xxviii] Demopoulos, supra note 1, ¶¶ 57, 61, 63.
[xxix] Id. ¶ 81.
[xxx] Id. ¶ 69.
[xxxi] Id. ¶¶ 83-84.
[xxxii] Id. ¶ 85.
[xxxiii] Id. ¶ 87.
[xxxiv] Id. ¶¶ 96, 97 (establishing that this holding is justified both by the need to avoid a legal vacuum in northern Cyprus pending a political solution, and the need to ensure that the Court is no longer thrust into the role of first instance arbiter of Greek Cypriot property claims).
[xxxv] Id. ¶ 101.
[xxxvi] Id. ¶¶ 35-37 (providing that the procedures and remedies set out in the IPC’s organic law are reproduced in some detail in the section of the decision describing “relevant domestic law and practice”).
[xxxvii] Id. ¶ 10.
[xxxviii] Id. ¶¶ 59, 106.
[xxxix] Id. ¶ 52.
[xl] Id. ¶ 111.
[xlii] Id. ¶ 112.
[xliii] Id. ¶ 114.
[xliv] Id. ¶¶ 115-17.
[xlv] Id. ¶¶ 118-19.
[xlvi] Id. ¶ 120.
[xlvii] Id. ¶¶ 121-23.
[xlviii] Id. ¶ 124.
[xlix] Id. ¶¶ 125-26.
[l] Id. ¶ 127.
[li] Id. ¶¶ 133; see id. ¶¶ 135-38 (dismissing one application based solely on Article 8 without a parallel property claim under Article 1 of the First Protocol, based on a finding that the applicant’s links with the alleged home were too attenuated to merit consideration).
[lii] Id. ¶ 108.