Cyprus Mail
Legal View

ECHR to judge value of Varosha properties

Varosha

By Achilleas Demetriades

There is a lot of talk about Evcaf’s claim on the fenced-off area of Famagusta (Varosha).  It is a very emotional issue for Greek Cypriots and has now become part of the election campaign for Turkish Cypriots. The matter is also before the European Court of Human Rights (ECtHR) in litigation against Turkey.

Evcaf is a religious charitable foundation that, inter alia, administers properties through Vakfs (Trusts) by essentially acting as muttavelli (trustee). It has been in Cyprus since 1571.

During Colonial times the British, apparently, had run Evcaf through its High Council essentially as a Colonial Department and a lot of Vakfs land had been sold off, allegedly, in breach of trust.

Actually, this was recognised by the then Colonial Government which by the Immovable Property (Vakf Idjaretein and Arazi Mevkoufe’ Takhsisat Conversion) Law CAP 232 had on 1 May 1944 agreed to, inter alia, pay the Delegates of Evcaf the yearly amount of STG£2,230 by way of compensation.

Just before Independence the Turkish Delegation to the negotiations submitted a claim consisting of a capitalised claim of the above, amounting to STG£900,000 along with an overall claim for another STG£3m as, inter alia, reparation to Evcaf for poor administration during Colonial rule.

In the end, and as part of the Treaty of Establishment, Appendix U entitled Financial Assistance to the Turkish Community, the Government of the UK agreed to pay STG£1.5m.  This was in exchange for a confirmation that the Turkish Community including the High Council of Evcaf had no financial claim against the UK Government or the Colonial administration.

Actually, STG£0.5m was paid into the joint account of Dr Kutchuk and Mr Denktash to meet the urgent requirements of the Turkish Community. It is important to note that Dr Kutchuk was not only the vice President elect but also the President of the High Council of Evcaf.

 

THE LAW

The first time the Evcaf claim to properties in Varosha can be traced is in the Arestis – Xenides Application of 1999 before the ECHR against Turkey.

It had been claimed that the Applicant was not in fact the owner of the land described in the Certificate of Ownership issued by the Republic of Cyprus because this actually belonged to Evcaf.

The Court dismissed this claim in its Decision on Admissibility on March 14, 2005.

Evcaf had also applied in 2000, to the District Court of Famagusta of the subordinate to Turkey local administration and secured a Judgment in December 2005 (2005 Judgment) that 1,472 titles in Varosha essentially belonged to the Vakf of Abdullah Pasa and thus to Evcaf, to the exclusion of Greek Cypriot owners.

This became a legal issue in the case of KV Mediterranean before the Immovable Property Commission set up by Turkey in the area of Nicosia under its control (IPC).

The Applicants had filed in 2010 a claim for loss of use of its building in Varosha and for restitution and the IPC had allowed Evcaf to appear in the proceedings as an interested party.

The Applicants strongly objected to this and took the matter up for Judicial Review, where they had been vindicated in 2015.  This was appealed by the administration and the Judgment was reversed on appeal in 2016.

The matter is now before the ECHR where the Applicants claim a breach of their right to (i) a fair hearing (Article 6), (ii) effective remedy (Article 13), (iii) right to property (Article 1 Protocol No. 1) and (iv) discrimination (Article 14) of the European Convention on Human Rights.

 

THE ISSUE

The matter in issue is whether the Applicants’ ownership of their block of flats in Varosha has been affected by the 1974 military action in Cyprus and consequent control by Turkey as well as by Evcaf’s claim.

With respect to the first and on the basis of the Loizidou v Turkey Judgments, the Applicant is still the legal owner of the property evidenced by the Cyprus Government’s Certificate of Ownership.

Nevertheless, in order to succeed to their claim for restitution and loss of income from 1974 to date they must prove their ownership before the IPC.

It is at this point that the Evcaf claim becomes important because by virtue of the 2005 Judgment, Evcaf is allegedly the owner, to the exclusion of the Applicants.

This case will most likely become a pilot one given its importance in determining the legal owner.

Will it be the Applicants by virtue of the Certificates issued by the Republic of Cyprus and recognised by the ECHR or will the 2005 Judgment provide cover for Evcaf?

It is a fundamental issue which becomes even more important because of the claim for restitution.

Varosha in its heyday

Logically it should be re-confirmed that the Applicants are the legal owners and then the next step would be the restitution of the property to them.

Obviously, one would hope that the UN Security Council Resolutions e.g. 550 of 1984 would be respected and the Greek Cypriot inhabitants are allowed to return under UN administration.

But more importantly, if, as current members of the Turkish Cypriot administration claim, they will open up Varosha then the issue is a real one.

Will the IPC give effect to the ownership rights of Greek Cypriots in Varosha and restitute the same even under Turkish Cypriot control?  Or will it simply ignore the ECHR case law?

This is of fundamental importance to the prospects of solving the Cyprus problem on the basis of respect for Human Rights.

Obviously in order for Greek Cypriots to have a chance to claim restitution they must apply to the IPC. Apparently, there are already 280 such applications.

To my mind this is very low taking, into account that Varosha consists of 6,082 plots of which 425 form the beach front, from just after Constantia Hotel all the way to the Golden Sands Hotel.

If the Greek Cypriot owners fail to apply to the IPC their position for restitution is obviously weakened. This, of course is assuming Evcaf’s position is overturned.

Another important aspect of the case law before the ECHR is the methodology and values in the claim for loss of use.

The IPC allows for a claim for damages for lost rent from 1974 to date plus interest.  The question is at what value will this loss of use be calculated on.

On the one hand the Greek Cypriots take the prices in the Famagusta District under the control of the Republic, say the Paralimni area or the beach front at Protaras.

On the other had the Turkish Cypriots take the prices in the Famagusta District, NOT under the control of the Republic, say the area near Salamis or its beach front.

Which price will be used to establish the value given the current difference between them?

Normally in a 46-year-old frozen conflict one would assume that the parties would have agreed a methodology and a benchmark.

Unfortunately, this is far from reality and thus the ECHR, as the ultimate dispute resolution mechanism, will have to draw the line.

 

CONCLUSION

The return of Varosha to its inhabitants has always been part of the confidence building measures in solving the Cyprus problem.

Yet the delay in negotiations has seen the parties involved resorting to individual legal measures to vindicate their rights. Greek Cypriot owners applied to the ECHR and Evcaf is claiming Varosha, despite the Colonial settlement.

If Greek Cypriots still want to claim restitution of their properties in Varosha, the IPC appears to be the only way to the ECHR. If they fail to exhaust this Turkish domestic remedy, then it is very likely that in the event of opening of Varosha – under Turkish rule – they will not be able to take possession of their property.

As to damages for loss of use, if no agreement is reached between the two sides then the ECHR will have to choose between the current prices at Protaras and those at Salamis or somewhere in between.

I guess we can only wait and see.

 



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