ECHR GIVES TENTATIVE BLESSING TO "TRNC" PROPERTY

C O N F I D E N T I A L SECTION 01 OF 02 NICOSIA 002010

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/07/2016
TAGS: PGOV PREL ECON CASC PHUM EUN UNFICYP TU CY
SUBJECT: ECHR GIVES TENTATIVE BLESSING TO "TRNC" PROPERTY
COMMISSION

REF: A. NICOSIA SIPRNET DAILY REPORT (12/06/06)


B. NICOSIA 959 AND PREVIOUS

NICOSIA 00002010 001.2 OF 002


Classified By: Ambassador Ronald L. Schlicher, reasons 1.4 (b/d).


1. (C) SUMMARY. In a December 7 ruling on the
Xenidis-Arestis case (reftels),the European Court of Human
Rights upheld a Greek Cypriot claimant's ownership of her
property in the closed city of Varosha and ordered Turkey to
pay her over a million dollars in damages. At the same time,
the ECHR "in principle" accepted the recently-established
"TRNC" Property Commission as a local remedy for similar
claims in the future. Turkey and Turkish Cypriots welcomed
this decision, which might get Turkey off the legal hook in
the roughly 1400 property cases currently pending before the
Strasbourg court by transferring responsibility to Turkey's
"subordinate local authority" -- and which confers
unprecedented (if indirect and derivative) legitimacy on a
Turkish Cypriot institution. Greek Cypriots are aghast at
the prospect of being forced to seek redress from the
"illegal occupation regime," and have suggested that the
Court's ruling is a narrow one, devoid of implications beyond
the Arestis suit. This ruling will not solve the property
question -- which remains the most intractable part of the
Cyprus problem -- although it may blunt the previously
effective Greek Cypriot strategy of seeking redress through
the courts rather than through a political settlement. END
SUMMARY.

THE CASE
--------------


2. (SBU) On December 7, the ECHR made its long-awaited
ruling in the case of Myra Xenides-Arestis, who had sued the
"occupying power" Turkey for violating her rights by denying
her access to her property in the closed city of Varosha. In
a preliminary 2005 ruling, the ECHR found in favor of Arestis
and ordered Turkey (which had initially moved for dismissal
of the case on the grounds that the "TRNC," not the GOT, was
the governing power in the north) to provide relief to the
plaintiff. But the Court acknowledged that the Turkish
Cypriot administration, while not sovereign, was nonetheless
a "subordinate local authority" of Turkey. The Court gave
Turkey and the Turkish Cypriots three months to design an
"effective local remedy" to the violation of the plaintiff's
rights, and another three months to implement it. Only
absent an effective local remedy could cases be referred to
Strasbourg, they reasoned.


3. (SBU) In response to this ruling, the "TRNC" (with
significant prodding from the mainland) redesigned its
Denktash-era Property Commission so that Greek Cypriot
claimants could request compensation for -- and in certain
very limited cases restitution of -- their property in the
north. In June 2006, just shy of the ECHR's six-month
deadline, the "TRNC" Property Commission made its first
offers. So far six Greek Cypriot claimants have accepted
cash compensation, while three others have been allowed to
reclaim their property outright. Arestis, however, turned
down the Commission's million-dollar buy-out offer, demanding
complete restitution of her property instead.


4. (SBU) The Court's December 7 ruling went generally in the
plaintiff's favor. Absent an agreement with Turkey over
whether she would accept a payoff in lieu of restitution, the
ECHR reaffirmed that Arestis is still the legal owner of the
property and awarded her over 900,000 euros in damages.
Legal observers note that this decision does not officially
close the Arestis case, since the pecuniary damages awarded
only compensate the plaintiff for the violation of her rights
until now; as long as she remains the legal owner and
continues to be denied access to her property, the door
remains open for Arestis to request further damages and
relief. In a public statement just after the ruling, she
suggested she would consider further court action as long as
her property was not returned to her. The Court decided not
to force Arestis to seek redress from the new Property
Commission, as the Turkish side had asked, since initial
rulings had already been made in Strasbourg regarding her
case.

"PYRRHIC VICTORY"
--------------


5. (C) Of broader significance was the ECHR's finding that
the Turkish Cypriot Property Commission nevertheless, "in
principle," met the Court's 2005 requirements to be
considered a "local remedy" for other, similar property
cases. The Court also noted that the new law granted
applicants the right of appeal to the "TRNC High
Administrative Court." Although the Court has not said so

NICOSIA 00002010 002 OF 002


explicitly, many observers feel this means that most of the
1400-odd cases currently pending before the ECHR could be
kicked back down to "TRNC" authorities for action at the
local level, and heard in Strasbourg only when all on-island
avenues for appeal had been exhausted.


6. (C) For the Greek Cypriots, the prospect of being forced
to seek redress from the "TRNC" is politically unappetizing,
to say the least. One pro-government paper breathlessly
warned that the ECHR decision was an "ominous" step toward de
facto recognition of the "pseudo-state," while another
commentator bemoaned Arestis's "pyrrhic victory." More
thoughtful observers are concerned, but have sought to
minimize the importance of the ruling.


7. (C) Arestis lawyer Achilleas Demetriades has pointed out
that the "TRNC" law places severe limitations on the amount
of property the Commission can actually give back. (COMMENT:
Restitution of a large majority of Greek Cypriot land in the
north is effectively impossible, since most of this property
is currently in use by either civilians or the military. In
such cases, the Property Commission is only empowered to
offer either delayed restitution, pending a solution to the
Cyprus problem, or immediate payout -- which would not be
acceptable to many claimants, like Arestis. END COMMENT.)
While the Court may have accepted the Commission "in
principle," Demetriades believes that time and further
appeals will demonstrate that new Turkish Cypriot property
mechanism cannot provide "effective" remedy in practice, as
demanded by the ECHR in 2005. This argument could turn out
to be especially strong if, as many expect, the Commission --
now over the "hump" of yesterday's decision -- begins to
slow-roll or short-change other claimants.


8. (C) Turkish Cypriots, predictably, are crowing about the
ECHR's "historic" decision and the legitimacy it confers
(albeit indirectly and conditionally) on a Turkish Cypriot
institution. According to Asim Akansoy, "President" Talat's
Private Secretary, the decision could help force Greek
Cypriots to "deal with Turkish Cypriots as a legitimate
presence on this island." Too often, said Akansoy, the GOC
seeks to "ignore" the Turkish Cypriots and their concerns,
"pretending instead" that the Cyprus problem is purely the
result of mainland Turkish aggression.


9. (C) Some Turkish Cypriots are more cautious, however. One
"MP" close to Talat acknowledged that the ECHR ruling could
result in an uptick in the number of Greek Cypriot property
applications (at least 80 had applied as of December 7). In
order to prove it was indeed "effective," the Commission
would have to process such claims reasonably quickly and
fairly, he said. At the very least, this would involve
significant payouts that the "TRNC" can scarcely afford.
Although Turkey has said it would help foot these bills, he
told us, it is an open question whether the GOT will be
willing to do so if this involves writing hundreds or
thousands of million-dollar checks. According to another
Talat advisor, the Turkish Cypriots were quietly hoping that
"political factors" (i.e., an unwillingness to deal -- or be
seen dealing -- with a "TRNC" institution) would keep the
number of Greek Cypriot applications for
compensation/restitution to a manageable minimum.

COMMENT
--------------


10. (C) Although the ECHR decision will not solve the
property question (which remains the most intractable and
emotional element of the Cyprus problem) it may blunt what
has heretofore been one of the Greek Cypriots' most effective
political weapons -- litigation. Coming coincidentally on
the same day as a local Supreme Court ruling that overturned
the GOC's uncompensated expropriation of Turkish Cypriot land
in Paphos, the Arestis ruling shows that property is an issue
which cuts both ways. The USG and others interested in
pushing the parties back to the negotiating table should use
the growing number of complicated judgments that are now
enmeshing each side as an argument for re-engagement in
settlement talks. Only an overall political agreement can
produce a comprehensive solution to property and other
issues. END COMMENT.
SCHLICHER