by Rhodri C. Williams
I’m very happy to announce the release of a new paper on the European Court of Human Rights and the Cyprus property issue (available here) that I wrote together with Ayla Gürel for the PRIO Cyprus Centre. The primary goal of the paper is to parse through the implications of the Court’s recent jurisprudence for the resolution of the property issue in the context of ongoing talks on the reunification of Cyprus. Our main conclusion is that the effect of these cases is to rule out some of the more extreme proposals from both sides, effectively tightening the legal parameters within which the negotiators nevertheless retain considerable discretion to arrive at a political compromise.
The analysis revolves around a series of judgments that subtly broke with the Court’s earlier caselaw on Cyprus and culminated in the March 2010 decision in Demopoulos v. Turkey. As I described in an earlier note on this decision for International Legal Materials, the Demopoulos Court rejected the Greek Cypriot position that a remedy for property violations resulting from the 1974 Turkish invasion of northern Cyprus would have to take the form of restitution except in cases where this was ‘materially impossible’. Instead, the Court approved a Turkish Cypriot property commission that was mandated to offer remedies involving compensation or exchange (rather than restitution) in a much broader range of circumstances than material impossibility.
While the implications of this decision for the broader discourse on ‘housing land and property’ (HLP) issues remains highly topical, we focus our analysis on how the Demopoulos line of decisions fits into the Court’s evolving caselaw on the application of the European Convention on Human Rights (ECHR) in ‘transitional’ settings such as Cyprus. One of the issues we look at, for instance, involves debates surrounding the application of the Court’s new ‘pilot judgment procedure’ in these cases. However, I think one of the most interesting aspects of the case – and one which seems to have drawn surprisingly little attention to date – is the extent to which the Demopoulos ruling demonstrates the power of Article 8 analysis (on the right to the home under the ECHR) in shaping Article 1 Protocol 1 outcomes (related to the right to property).
The mutually reinforcing nature of Article 8 and Article 1 Protocol 1 is hardly news, and the significance of this linkage in restitution settings has been commented on by a number of observers including Antoine Buyse, author of the ECHR Blog. What is striking in the Demopoulos case is that one of the implicit grounds for the Court’s ruling appears to be a determination that the protection of rights to the home under Article 8 of the ECHR have by and large shifted from Greek Cypriot property claimants (who remain legal owners but are increasingly unlikely to be found to have significant links to homes they left behind two generations ago) and to Turkish Cypriot occupants. While the Court does not directly state that occupants of claimed property are now protected under Article 8, such a finding is arguably implicit in the Court’s concern that blanket restitution could give rise to ‘disproportionate new wrongs’ (para. 117):
The Court must also remark that some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it to attempt to impose an obligation on the respondent State to effect restitution in all cases, or even in all cases save those in which there is material impossibility, …. It cannot agree that the respondent State should be prohibited from taking into account other considerations, in particular the position of third parties. It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and rehousing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention. (para. 116)
In other words, it appears that the Court has accepted that long-term occupation of claimed property can give rise to protected rights to the home, and that the existence of these rights can legitimately limit the ‘possibility’ of restitution in favor of owners. If this proposition holds up, it may come to be seen as a significant precedent that the current debates surrounding post-conflict HLP rights will need to come to grips with. On the other hand, it will also be crucial to distinguish the Court’s findings based on a number of factors unique to the Cyprus context such as the protracted nature of displacement there and the failure of the parties to date to achieve a negotiated settlement.