Tim W Hayes  01/23/2008 02:12:14 PM  From  DB/Inbox:  Search Results

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C O N F I D E N T I A L        NICOSIA 01886

SIPDIS
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    ACTION: POL
    INFO:   CONS TSR PMA ECON DCM AMB RAO FCS PA MGT DAO

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VZCZCAYO256
PP RUEHAK
DE RUEHNC #1886/01 3340931
ZNY CCCCC ZZH
P 300931Z NOV 05
FM AMEMBASSY NICOSIA
TO RUEHC/SECSTATE WASHDC PRIORITY 5184
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUCNDT/USMISSION USUN NEW YORK 0411

C O N F I D E N T I A L SECTION 01 OF 03 NICOSIA 001886 
 
SIPDIS 
 
E.O. 12958: DECL: 11/29/2015 
TAGS: PREL CY TU PHUM PREF COE ECON
SUBJECT: TURKISH CYPRIOTS UNVEIL NEW SCHEME FOR GREEK 
CYPRIOT PROPERTY CLAIMS 
 
REF: A. NICOSIA 728 
     ¶B. 04 NICOSIA 1869 
     ¶C. NICOSIA 1737 
 
Classified By: CDA Jane Zimmerman, for reasons 1.4 (b) and (d). 
 
¶1. (C) SUMMARY.  The Turkish Cypriot administration has 
drafted a new law that would significantly alter the way in 
which the "TRNC" handles claims for restitution or 
compensation for Greek Cypriot property, which makes up 
between 80 and 90 percent of the land in the north.  In 
response to an April ECHR ruling declaring that the existing 
Turkish Cypriot Property Commission was not an "effective 
local remedy" for property claims, the "Council of Ministers" 
has approved a new scheme it says will establish a more 
impartial body to grant restitution of Greek Cypriot property 
in some cases, and more robust compensation in others.  The 
new law, which still requires "parliament's" approval and 
will take several months to come into force, is an attempt to 
thwart further ECHR rulings against Turkey and the Turkish 
Cypriot side -- indirectly gaining the ECHR's stamp of 
approval for a "TRNC"-sponsored institution and blunting one 
point of criticism against EU candidate Turkey's 
implementation of EU human rights law.  Ankara has reportedly 
given its tacit blessing to the new arrangement.  But 
compensation, much less restitution, will be a difficult and 
costly undertaking and the potential disruption it may cause 
has already generated criticism from the Turkish Cypriot 
nationalist right.  It is far from certain the new 
arrangement will meet the ECHR's approval as "effective local 
remedy."  At the very least, however, the Turkish Cypriots 
are betting that their new law will slow the pace of property 
cases against them, and perhaps even facilitate settlements 
with (or buy-outs of) some Greek Cypriot plaintiffs.  END 
SUMMARY. 
 
CHANGES TO THE PROPERTY COMMISSION 
---------------------------------- 
 
¶2. (SBU) On November 22, the Turkish Cypriot "Council of 
Ministers" published a draft law that would significantly 
change the way in which the "TRNC" handles Greek Cypriot 
claims on property in the north.  Under article 159 of the 
"TRNC Constitution," all Greek Cypriot property in the north 
was confiscated in exchange for lost Turkish Cypriot land in 
the south.  A large portion of this Greek Cypriot land has 
since been doled out to Turkish Cypriots, many of whom were 
given "TRNC" title deeds to the properties they now use as 
homes, farmland, and places of business.  Given estimates 
that between 80 and 90 percent of the land in the north was 
owned by Greek Cypriots prior to the 1974 war, this new law 
could have a significant impact on the use of land in the 
north -- and on property provisions in any future Cyprus 
settlement. 
 
¶3. (U) The new legislation would abolish the "TRNC" Property 
Commission, which was set up by the Denktash regime in 2003 
in response to ECHR property cases brought against Turkey as 
the "occupying power."  Although no Greek Cypriots are known 
to have filed claims with the Commission, it is theoretically 
empowered by the "TRNC" to compensate Greek Cypriot owners 
for their property in the north.  Turkey subsequently claimed 
that, since an "effective" local (i.e. "TRNC") remedy existed 
to resolve the claims against it, the ECHR should dismiss 
property cases against it and refer them back to the Turkish 
Cypriot Property Commission. 
 
¶4. (U) In April 2005, however, the ECHR ruled in favor of 
Greek Cypriot plaintiff Xenides-Arestis (refs a and b) and 
found that the Commission did not constitute a local remedy, 
because, among other things: 
 
-- the Commission could grant only compensation, not 
restitution, of confiscated property; 
 
-- the Commission was empowered to provide compensation for 
real estate only, not movable property, loss of use, or 
damages; and 
 
-- the Commission members were not impartial (indeed, some 
lived on Greek Cypriot land). 
 
The ECHR did not, however, rule out the idea that a Turkish 
Cypriot body could constitute effective local remedy, 
notwithstanding the non-recognition of the "TRNC," if these 
deficiencies in the Property Commission were addressed.  In 
fact, in a subsequent (unrelated) ruling over the shooting 
death of a Greek Cypriot by the Turkish army in the Buffer 
Zone, the ECHR specifically said that "for the purposes of 
applying the European Convention on Human Rights," under 
which Greek Cypriot property complaints are generally filed, 
"the remedies available in the 'TRNC' could be regarded as 
domestic remedy." 
 
¶5. (SBU) With this target in mind, the new Turkish Cypriot 
legislation envisions the following changes, among others, to 
the Property Commission: 
 
-- the Commission will be empowered to return immediately 
Greek Cypriot land to applicants who can prove pre-1974 
ownership, unless the property is being used by another 
person, a "TRNC" deed has been issued giving another person 
rights to the property, or restitution of the land would be a 
threat to "security" (probably a reference to Greek Cypriot 
land currently used by the Turkish army); 
 
-- in some cases, especially those where "TRNC" deeds have 
been issued or the land is currently in use, restitution 
could be possible but would be deferred until after a Cyprus 
settlement; 
 
-- in cases where restitution is unworkable, the applicant 
may be offered another property of similar value, or monetary 
compensation based on the 1974 value of the land (adjusted 
for inflation and for the value of any Turkish Cypriot land 
the plaintiff has acquired in the south).  In some cases 
compensation for damages (both loss of use and "emotional") 
will be allowed; 
 
-- the Commission will consist of "either 5 or 7 members," 
two of which will be foreigners (from a country other than 
Turkey, Greece, or the UK); 
 
-- the Commission will also be empowered to grant 
compensation for movable property (such as the contents of 
homes and stores) lost in 1974; 
 
-- claimants will be allowed to appeal rulings of the 
Commission to the "TRNC Higher Administrative Court" and then 
to the ECHR. 
 
The law must now wend its way through legislative committee 
and then a full floor vote in the "National Assembly" before 
becoming law.  According to one parliamentarian, this will 
probably take "several more months." 
 
"ECHR COMPLIANT?" 
----------------- 
 
¶6. (C) The main purpose of this law, according to a Turkish 
Cypriot "minister" we spoke to privately, was to blunt 
further ECHR property suits by Greek Cypriots.  By 
establishing a new, "ECHR-compliant" Property Commission, the 
Turkish side could force Greek Cypriot claims to be 
adjudicated on the island with "fairness and finality," he 
told us.  He was not certain whether the Turkish side would 
push the ECHR to rule on the new law by filing an appeal of 
the Xenides-Arestis decision.  But prominent Turkish Cypriot 
property lawyer Emine Erk suspects "it's too late" to appeal 
the court's decision in this case, and that the Turkish side 
will simply wait for another property case (many are pending) 
to work its way to Strasbourg. 
 
¶7. (C) Either way, the "minister" told us, if the ECHR 
determined that the new Commission did constitute an 
"effective local remedy," it would remove a significant 
human-rights related stumbling block from Turkey's EU 
accession process.  It is for this reason Turkey "backs the 
new legislation fully" and, according to the "minister," was 
already discussing with the "TRNC" the possibility of 
extending additional grants and loans to cover the costs of 
administering the Commission and paying for compensation. 
Ankara, which is already on the hook for compensation arising 
out of cases such as Xenides-Arestis and Loizidou, would 
"just as soon pay out" via the "TRNC" and not directly, he 
said. 
 
¶8. (C) From the Turkish Cypriot perspective, the "minister" 
noted, a favorable judgment on the new Commission would have 
the added benefit of giving an international seal of approval 
to a Turkish-Cypriot sponsored institution.  "We don't want 
political recognition," he said, but "we want to the world to 
recognize we are here" and to deal with the Turkish Cypriots 
"on practical matters." 
 
OBSTACLES TO IMPLEMENTATION 
--------------------------- 
 
¶9. (C) But there are several factors that complicate the 
"government's" plans.  The first is domestic politics.  While 
the ruling CTP has a strong position in the legislature, 
passage of this controversial law is not guaranteed. 
Property is a very emotive issue; strong political resistance 
last fall forced the CTP to withdraw a previous proposal 
limiting the sale of land in the north to foreign developers. 
 The new law has excited similarly vigorous opposition. 
 
¶10. (SBU) Nationalist icon and "TRNC" founder Rauf Denktash 
has already spoken out against the new legislation, which he 
says would leave Turkish Cypriots without anywhere to live. 
Meanwhile, "MPs" from the opposition UBP -- as well as 
backbenchers from within the DP of Serdar Denktash (CTP's 
junior coalition partner) -- have expressed outrage over a 
law that would give away land to the Greek Cypriots without a 
final Cyprus settlement.  Observers note the coalition party 
discipline is high, and expect the law to pass -- but wonder 
if the opposition or public anger could force the CTP to 
water down key provisions of the bill, making it less likely 
the ECHR would agree that the new law is "effective" local 
remedy. 
 
¶11. (C) Even without changes, it is far from certain the ECHR 
would bless the new Property Commission scheme.  One "TRNC 
Land Registry" employee estimated that only 3-5 percent of 
Greek Cypriot property in the north is undistributed and 
unused, and therefore liable for immediate restitution under 
the draft scheme.  It remains to be seen whether the ECHR 
will agree that restitution of such a small amount of 
property (or delayed restitution, which is also envisioned in 
the law) indeed constitutes effective, meaningful redress for 
Greek Cypriots plaintiffs. 
 
¶12. (C) Finally, it is not clear how many (if any) of those 
Greek Cypriots offered compensation instead of restitution 
under the new plan would accept it.  Assuming the "TRNC" can 
find the cash to offer compensation, some individuals might 
take the money and run, as the Turkish Cypriots hope.  But 
the ROC's strong official position against dealing with the 
"occupation regime" is certain to encourage many Greek 
Cypriot plaintiffs to stick to their principled stance, 
appealing decisions of the new Commission and pushing for 
total and immediate restitution in the courts. 
 
COMMENT 
------- 
 
¶13. (C) Even if the new law does not work out as the "TRNC" 
leadership hopes, it could nonetheless have the effect of 
slowing down the numerous property cases pending against 
Turkey at the ECHR.  Furthermore, what appears to be an 
honest attempt to respond to the concerns outlined by the 
ECHR in Xenides-Arestis may also, at least temporarily, ease 
some of the criticism Turkey faces over its spotty 
implementation of European human rights law.  Meanwhile, 
Turkish Cypriot plaintiffs continue their own cases against 
the ROC's uncompensated use of their land in the south (ref 
c).  The ongoing two-way battle of litigation threatens not 
only to create an increasingly large body of jurisprudence 
that will complicate the property provisions of any final 
settlement deal -- it also makes the atmosphere of bicommunal 
trust needed for a final agreement even harder to imagine. 
END COMMENT. 
ZIMMERMAN