Affiliated with the University of Nicosia |
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SOME THOUGHTS ON THE DEMOPOULOS CASE: A 'LEGALISTIC' APPROACH ON 'POLITICAL' MATTERS AND A 'POLITICAL' CONCLUSION ON A 'LEGAL' ISSUE By Antonis St. Stylianou
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Director of UNic Law Clinic Faculty of Department of Law |
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Despite Camus’ infamous statement that ‘even in
destruction, there’s a right way and a wrong way – and there are
limits’, the recent judgment of the European Court of Human Rights (ECtHR)
in the case of Demopoulos and
seven others against Turkey has shown a paradoxical situation in
many respects, as the Court saw neither the right or the wrong way, nor
has delimited, effectively, the situation relating to the right to
property for Greek Cypriots who have lost their properties following the
1974 Turkish invasion on the island. Few things can be said about the effectiveness (or
not) of lodging a great number of applications against Turkey before the
ECtHR, relating to the same subject-matter. Some, have been thoroughly
discussed in the Mass Media (in Cyprus only), in an attempt to overcome
the shortcomings of the judgment. But, we have yet to see a united,
common and methodical approach on the matter: Lawyers disagree on the
implications of the decision in Demopoulos, the Government wrangles over the ineffectiveness of the
‘Immovable Property Commission’ (‘IPC’), interpreting the judgment of
the Court in its own way, the Media are (again) attempting to deal with
the situation in a way to improve their numbers, and the political
parties (in Cyprus only) have long shown an honest attempt to reach a
united front in an issue that matters a lot, both in legal but also in
political terms. The realities, however, in relation to the actual
judgment in the case of Demopoulos
and seven others against Turkey are just simple: The policy and the
influence of Turkish diplomacy have affected, to a greater or lesser
extent, the decision of the Court or, rather, the developments that have
led the Court to deliver such a judgment. We ought to have seen or, at
least, predict, those developments. The creation of the ‘Immovable
Property Commission in the “TRNC”’ in 2005 by operation of ‘Law 67/2005
“TRNC”’ was one of those developments that followed the rejection of the
Annan Plan by the great majority of Greek Cypriots in 2004. The creation
of the ‘IPC’, its procedures and mechanisms resembled those of a court
of law. It has to be borne in mind, at this point, that one of the
requirements of lodging an application before the ECtHR is to exhaust
all effective (and sufficient) domestic legal remedies of the respondent
State. It has to be also borne in mind that the ECtHR in the last
inter-state complaint between Cyprus and Turkey has noted that remedies in the “TRNC” might be
regarded, for the purposes of the European Convention of Human Rights (ECHR),
as domestic remedies of Turkey. Where things went blatantly out of track
(for the purposes of foreseeing the developments) was in the case of
Xenides-Aresti (judgments of
2005 on admissibility and on the merits of the case), where the ECtHR
examined ‘Law 49/2003 of the “TRNC”’, which provided for ‘compensation
for immovable properties’, and maintained that, on rather technical
reasons, the remedies provided under ‘Law 49/2003’ did not satisfy the
requirements for effective remedies set out in the ECHR (Article 35.1). It is my firm belief that the results in
Demopoulos could have well
been predicted and that actions ought to have been taken earlier to
eliminate any negative outcomes in such pilot cases before the ECtHR.
Unfortunately, we have not really seen an attempt to eradicate the
difficulties arising out of the establishment of a ‘Property Commission’
in the “TRNC” that was satisfying the requirements set out in the
judgments on admissibility and on the merits in
Xenides-Aresti. Instead, we
are asked to act retroactively and not proactively. And even then, we
are still to reach a unanimous decision on how to act. By November 2009 there have been 433 cases that were
brought before the ‘IPC’, with 85 of those been concluded – the vast
majority of which by means of friendly settlement. Thus, it is a myth to
say that Greek Cypriots have not already ‘used’ the ‘mechanism’
available in the ‘TRNC’. We still have to see how many cases will be
lodged before the ‘IPC’ following the decision of the ECtHR in the
Demopoulos case, as the
aforementioned number only relates to cases that were brought before the
‘IPC’ as of the date of the hearing in
Demopoulos and not as of the
date of the decision as to its admissibility. It has to be pointed out that in between the
judgments of the ECtHR in the cases of
Xenides-Aresti and
Demopoulos and others we have
witnessed a triumph of justice and fairness in the case of
Apostolides v. Orams that has followed a different avenue - that of
the European Union and not that of the Council of Europe. Hopefully, we
will not ‘overload’ those procedures available as well, but we will act
in a way that will advance the interests of the future generations in
Cyprus.
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