Mr. President, Members of the Court,
1)RAISON D’ ETRE OF THE LAW
The concept of Bizonality as interpreted by the Respondent Government is the “raison d’ être” of “Law 67/2005”. The objective of the “Law” is to convert, Greek Cypriot majority ownership to minority. Restitution is limited to a bare minimum. Therefore “Restitution” provided in the “Law” is but a “gimmick”.
2)SECTION 3
“Law 67/2005” Section 3 provides:
Purpose
“The purpose of this law is to regulate the necessary procedure and conditions (my emphasis) to be complied with by persons in order to prove their rights regarding claims in respect to immovable properties … as well as , the principles relating to restitution (my emphasis) …, having regard to the principle of and the provisions regarding protection of bizonality , which is the main principle of 1977-1979 High Level Agreements and of all plans prepared by the United Nations on solving the Cyprus Problem and 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”.
The Turkish side interpret differently the concept of Bizonality from the Greek side.
3)TURKISH MEANING OF BIZONALITY
The Respondent Government and its subordinate administration have repeatedly interpreted the concept of “bizonality” referred to in many documents and Section 3 above of the “Law 67/2005” as meaning that ,in the occupied area of the so called “TRNC” , an ethnic and property cleansing must be achieved , guaranteed and safeguarded by the terms of a possible future solution of the Cyprus Problem.The above transpires from the material already placed before the Court.
(a) Applicants Memorial 2 Oct. 2009
Appendix D
16/12/2005 Statement of “Foreign Minister Denktas”
“Denktas noted that the reasoning of the draft-law is the exchange and compensation and not the return of property”.
“Denktas said that the percentage of the properties that could immediately be returned is 4% and that there is nothing which creates a situation which endangers the BI-ZONALITY” (my emphasis).
(b) Appendix 3 : Republic of Cyprus Memorial Vol. 1, Feb. 2009 page 79
The so called President of TRNC, Mr. Talat stated in a Russian Magazine “Kommersant-Vlast” 28/10/2008.
“I can assure you that no political risk threatens the foreigners that are owners of immovable property in the territory of the TRNC”.
(c) Meanwhile the sale of Greek properties continues (see ibid pages 89-111)
“by three decisions in June 2008 and in January 2009 published in the “Official Gazette”, the “Council of Ministers has decided for the sale of a total of 100 Greek Cypriot properties….The “Governments’ aim is to collect the amount of 7m sterling from these sales”.
(d) Kutlay Erk, special representative of the Turkish Cypriot leader Talat in Yeni Duzen newspaper 2/2/09 . Appendix 9 ibid page 112.
“We believe that if we as Turkish Cypriots are going to administrate the northern part of Cyprus, if the majority of the population will be Turkish Cypriots, if the administration will be Turkish Cypriot, the majority in the pattern of the properties will belong to the Turkish Cypriots. The property regime will also be applied by the Turkish Cypriots. This is bi-zonality. It is for this reason that we say that whatever the current proportion of the Greek Cypriot properties in the north is, after the solution , their majority should pass to the Turkish Cypriots…”
“ If bizonality (my emphasis) is going to be our first principle, and this is accepted and is not disputable, then the majority of the immovable properties in our own area will belong to the people with population majority . Using the criteria we will return property, we will exchange, but a significant part of the Greek Cypriot properties will pass to the ownership of Turkish Cypriots (my emphasis). This is an important criterion for us”.
The President of the Immovable Property Commission. Sumer ERKMEN: BAYRAK TV Web Page 21.4.06
Appendix 9 Thoma Kilara Memorial 29.09.2008
“Underpinning the fact that the basic character and provision of the new Property Law is that it envisages the “maintenance of the bizonal order in Cyprus” (my emphasis); Mrs. Erkmen stressed that the new legislation’s priority is to protect and uphold the property rights of the People of the Turkish Republic of Northern Cyprus in accordance with the TRNC Laws and regulations that promote the “Right to Property”.
She also reminded that the new law had been drafted in such a way as to safeguard and protect the property rights which the Turkish Cypriot People would secure in a possible comprehensive settlement to the Cyprus problem.
Responding to another question by our correspondent, the Property Commission’s Chairperson reminded that property held by current users-who themselves have left property behind in the Greek Cypriot controlled South Cyprus-will not be reinstated to their former owners.
She said that property which has been developed or, on which , technical and engineering approvals for future development have been taken, will also not be subjected to reinstatement.
Mrs. Erkmen concluded by saying that if, in the eventuality , any property is finally decided to be reinstated to its displaced owner, even this process will have to wait until a final and comprehensive settlement of the Cyprus problem is found”.
The avowed objectives of the Respondent Government is to ensure that the majority of the population in the occupied territories i.e Greek Cypriots who were expelled or forced to leave as a result of the Turkish invasion and occupation of Cyprus in July –August 1974 ,should not be allowed to return to their properties and ancestral homes. This would mean if they were allowed through restitution that there would be no longer a clear majority of Turkish Cypriots and settlers in the occupied part of Cyprus in the North.Hence the enactment of the Law to prevent restitution in the majority of cases. The “Law” has nothing to do with “domestic remedy” principles under the jurisprudence of the ECHR.
4)PERCENTAGE OF OWNERSHIP IN OCCUPIED AREAS.
As part of the Respondent’s Government’s policy of ensuring property cleansing , Turkey and its subordinate authority , “TRNC” have confiscated illegally all Greek Cypriot properties by virtue of Article 159 of the “TRNC” Constitution and wish to convert Greek Cypriot majority in property of 58% to a minority. The percentage of property ownership as per the last official statistics of the Republic of Cyprus are :
1. Greek Cypriot
58.2%
2. Turkish Cypriot
16.2%
3. Republic of Cyprus property
22.8%
4. Church
2.4%
5. Others
0.3%
I attach copy of Relevant Table from Clair Palleys Treatise : An International Relations , Debacle, Oxford 2005 .
The objective of the Turkish side is to reduce the 58% Greek Cypriot majority to a minority and increase the 16.2% Turkish Cypriot minority to a majority.
5)RESTITUTION THE EXCEPTION AND NOT THE NORM
That is why restitution under “Law 67/2005” is the exception and not the norm.
This is evidenced by the following, inter alia :
Section 3
a.Reference is made in Section 3 to the concept of “bizonality” and to the need to protect bizonality and to preserve the “property rights” or “rights to use” arising out of TRNC legislation (i.e confiscation of Greek Cypriot properties) or the Rights of the “Turkish Cypriot” people which shall be protected by the comprehensive settlement of the Cyprus Problem (i.e ethnic property cleansing).
The end result is that the illegal occupiers of Greek Cypriot property i.e trespassers are given priority over the rights of the legitimate Greek Cypriot owners. This will be achieved through “killing” restitution of Greek Cyprot properties to achieve the bizonality principle. This is what “Law 67/2005” aims at.
Section 8
b.Under Section 8 (1) (2) (3) of the “Law” restitution is subject to such onerous conditions that it becomes an unachievable illusion . The “Law” is a Smokescreen to cover the true objectives of the “Law”. Not only the conditions are numerous but the “exceptions net” is cast widely and in deliberately vague terms!
Some of the Conditions for Restitution imposed by the “Law”:
(a). ownership or use must not have been transferred to any natural or legal person other than the “State” i.e “TRNC”.
(b). restrictions on grounds of national security and public order are imposed (in their memorial 2.10.2009 Turkish Government p.39 say Greek Cypriots involved in intercommunal strife are excluded and at areas where intercommunal strife occurred Greek Cypriots will not be allowed restitution !!!).
(c). the property must not be allocated for public interest reasons.
(d). the property must be outside military areas or military installations (Large areas in occupied Cyprus declared military).
Already the majority of Greek Cypriot property is excluded from restitution due to the above conditions.
Further if above are not applicable, restitution for the remaining confiscated properties is still subject to the following additional conditions :
(a). Property must not be acquisitioned for public interest and social justice.
(b). it must be established that the increase in value due to improvements by its illegal occupiers by the date of the application is less than the value of the property when abandoned.
Or
(c). that here is no increase in its value.
Or
(d). that there is no official project approved that would cause an increase in value to the property.
Or
(e) it is not property of equal value acquired by any person in exchange of property in the South (i.e T/C who moved to the North)
And then again restitution is further qualified by the following provision :
Restitution decision will take place in the above limited cases AFTER A SETTLEMENT OF THE CYPRUS PROBLEM (maybe never) and IN LINE WITH THE PROVISIONS OF THE SETTLEMENT (read Bizonality – Property cleansing) ! Individual Human Rights are sacrificed on the altar of political expediency promoted by the “Law”.
Further a freezing of the property for which restitution has been ordered is imposed ie. no sale/mortgage/construction etc pending the solution of the Cyprus Problem.
Further ,it is a condition that the present day trespasser is provided with compensation or alternative accommodation under the provisions of the settlement.
FURTHERMORE AND FINALLY
(a) if the increase in value of the property at the date of the application as a result of its illegal exploitation, under the laws of the Republic, exceeds the value of the property in 1974.
Or
(b) an official project has increased its value.
THEN a proposal for exchange may be made or compensation offered !! NO RESTITUTION.
THE END RESULT IS THAT RESTITUTION IS A LIE
WHY ALL THIS ? Because “Law 67/2005” is a special purpose vehicle for the implementation of the political objectives of Turkey in achieving the concept of “Bizonality” and an ethnically population and property “clean area” in part of Cyprus that would constitute the “Component” future state in the so called Bizonal Bicommunal Federation solution as the Turkish side wants to interpret it.
Turkish proposals for bizonality
c.The true objectives of the “Law” are evinced by the recent official “Turkish Cypriot Response to the Greek Cypriot position on the property issue” in a Document of 4.2.2009. This is an official Document of the Turkish side tendered to the Greek Cypriot side in February this year.
The conclusion in this document is the following (I attach copy) :
“The solution to the property issue should respect the overriding principle of bizonality, which requires that both the Turkish Cypriots and the Greek Cypriots should be guaranteed clear majority of population and of land ownership in their respective constituent states”.
Greek Cypriot proposals
By contrast , in answer to the above and based on a true and correct interpretation of the legal situation the Greek Cypriot side made proposals that conform with Human Rights instruments and the European Convention (I attach copy)
6)“CONSTITUTIONAL COURT JUDGMENT”
The so called “Constitutional Court” of the TRNC (Annex 4 of Turkish Memorial 2.10.2009 at pages 32, 33, 34 , 55 and dissenting opinion 60-61) admits that restitution is subject to Section 3 of the Law and the doctrines of “bizonality”
At pages 33-34 the following passage is to be found:
“The Greek property (entirely racial, my comment) (since when property in a country M.S of the Council of Europe has a nationality) which is stipulated to be returned in a “reasonable period of time to the Greek applicant covers only (my emphasis) the immovable properties which are not yet given to anybody and subject to conditions which are indicated in more detail above. In any case, the Commission is obliged to evaluate all of the applications in compliance with the criteria which are stipulated in the purpose of the Law in Article 3” i.e Bizonality concept as interpreted by the Turkish Government.
7)PROCEEDINGS OF THE COMMISSION 17.03.2006 – 29.09.2009
The statistics are given in the last page of Appendix 20 of the Turkish Memorial 2.10.2009. Out of a total affected area of 5.455.756 m² only 361.493 m² was ordered to be restituted i.e 6.6% !
Conclusion :
Mr. President, Members of the Court,
We must not forget that almost half of Cyprus is under Military Occupatin by Turkey.
The Immovable Property Commission is the tool to achieve “bizonality”, i.e property and population cleansing in Cyprus. It is the prelude to legitimizing the occupation of Cyprus and the deprivation of property rights of Greek Cypriots who are forced through procrustean mechanisms to accept compensation sacrificing their individual property rights in the cause of a racist policy contrary to Article 14 of the European Convention. It is not a legitimate domestic effective remedy for purposes of the Convention that this Court envisages. It has nothing to do with it and the jurisprudence of the European Court of Human Rights . It is a tool at loggerheads with the European Convention itself.
Dr. Christos Clerides
Advocate