TURKISH CYPRIOTS MEET ECHR DEADLINE FOR

C O N F I D E N T I A L SECTION 01 OF 03 NICOSIA 000440 SIPDIS SIPDIS E.O. 12958: DECL: 03/22/2016 TAGS: PREL PGOV PHUM CY SUBJECT: TURKISH CYPRIOTS MEET ECHR DEADLINE FOR ESTABLISHING PROPERTY COMMISSION, BUT WILL ANYONE NOTICE? REF: 05 NICOSIA 1886 Classified By: Ambassador Ronald L. Schlicher; Reasons 1.4 (b) and (d) ¶1. (C) SUMMARY: Turkish Cypriot authorities have met the European Court of Human Rights' (ECHR) deadline for revising the property compensation commission that the court had earlier ruled inadequate to be considered an effective domestic remedy. The new commission has a more diverse membership -- including two foreigners -- and new powers based on a law approved by the Turkish Cypriot "parliament" in December. There are real questions, however, as to whether the new-look commission will cross the ECHR's threshold of credibility and whether Greek Cypriots would be willing to seek redress through a Turkish Cypriot institution under any circumstances. The lawyer for the plaintiff in the most recent ECHR ruling, Xenides-Arestis vs. Turkey, publicly expressed confidence that the court would refuse to endorse the commission. Others on the Greek Cypriot side seem less certain, and a group of hard-line lawyers representing a large number of clients with pending (and now frozen) cases before the ECHR sent a letter to the court seeking a right to appeal the Arestis decision and attacking the credibility and integrity of a number of the judges on the panel. No matter how the ECHR ultimately rules on this case, the wave of bitter and complicated property litigation is unlikely to abate anytime soon. END SUMMARY. Commission Announced Just In Time -------------- ¶2. (C) On March 21, the "TRNC" announced the establishment a Property Commission designed to adjudicate Greek Cypriot claims for restitution of and/or compensation for their property in the north (ref A). The Commission was established under a December 2005 Turkish Cypriot law passed to comply with the ECHR's Xenedis-Arestis ruling, which required Turkey (and its "subordinate local administration," the "TRNC") to establish "effective domestic remedy" for Greek Cypriot property claims arising from Turkey's 1974 military intervention and subsequent occupation of one-third of the island. In its ruling, the Court had laid out several specific criteria -- such as the real possibility of restitution and a more transparent, impartial claims-adjudication body -- for any new Property Commission to be considered "effective." The Court gave Turkey three months to design a system that would comply with this ruling (the March 21 announcement of the establishment and composition of the Commission squeaked in just under this deadline) and another three months to implement it in full. Pending this, the Court has put on hold the approximately 1400 additional Greek Cypriot complaints against Turkey known collectively as "Loizidou Clones." ¶3. (C) The new Commission will theoretically be able to order the return of property to pre-1974 Greek Cypriot owners, although the law provides for several limitations on this power. Property being used by the Turkish military, for example, will be exempt from restitution. In cases where restitution is not granted, the Commission will have the power to grant compensation to the Greek Cypriot owners, either in the form of alternative property or payment based on market value. The Commission consists of five Turkish Cypriots and two foreigners (Hans Christian Kruger and Daniel Tarschys of Sweden -- a former Deputy General Secretary and former General Secretary of the Council of Europe, respectively). Turkish Cypriot observers suggest that the membership of the Commission has been carefully calibrated to include women and men, friends and opponents of the ruling CTP, and a smattering of apparently credible foreigners. This, according to one advisor close to "President" Talat, means the Commission will be "neither too harsh nor too generous" with Greek Cypriot claims. Will It Pass Muster? Will Greek Cypriots Apply? -------------- --- ¶4. (C) It remains to be seen, however, whether this Commission will meet the ECHR standards as "effective local remedy." Greek Cypriot property lawyer Achilleas Demetriades, who represents Xenedis-Arestis, has publicly asserted that the new Commission will not be accepted by the Court -- and many Turkish Cypriot observers quietly share his doubts. Given the restrictions written into the Turkish Cypriot law, it is unclear how much property the Commission NICOSIA 00000440 002 OF 003 will actually be able to return to Greek Cypriot owners (as opposed to offering compensation); meaningful restitution is a key element of the criteria spelled out by the ECHR last year. ¶5. (C) Turkish Cypriot lawyers suggest the ECHR will have no grounds to make a ruling on the Commission until it has started working and they can see whether it is as effective in practice as Turkish Cypriots claim it is on paper. The procedure can only work when an application is made. For example, it is unclear what level of compensation will be acceptable to the Court in cases where restitution is denied. Although the Turkish Cypriots insist that Ankara (which is eager to wash its hands of responsibility for Cyprus property by supporting a "TRNC" domestic remedy) is willing to pay all the costs of the new Commission, it seems unlikely that either the Commission or the GOT will be willing or able to foot the bill for multiple, multi-million dollar compensation packages. If the new Commission low-balls too much, the ECHR could balk. ¶6. (C) Hoping to force the issue (and repulsed by the idea of having to apply to a "TRNC" body to get their houses back),seven Greek Cypriot lawyers representing approximately 1000 of the 1400 refugees with applications pending before the court announced last week their intention to appeal the Arestis decision allowing Turkey the chance to establish effective local remedy. In their letter to the Court, the lawyers reportedly called into question the credibility and objectivity of the ECHR President and an ECHR judge, claiming to have "evidence" that the two ECHR judges accepted personal visits from the Turkish Ambassador to Luxembourg. ¶7. (C) It is not clear that this appeal will go anywhere, however. As Cyprus' Attorney General has noted, these lawyers have no grounds for appeal because they represent neither the plaintiff (Arestis) nor the respondent (Turkey). Indeed, Arestis' lawyer, Demetriades, has publicly discouraged this group from further action, arguing -- among other things -- that personal attacks against the Court and its Judges could damage the Greek Cypriot cause at the ECHR. ¶8. (C) It is also an open question whether Greek Cypriots will be willing to apply to the Commission. Some on both sides of the Green Line have even expressed doubts as to whether Arestis herself will apply to the Commission. One Turkish Cypriot legal expert warned that, if Arestis did not apply and refused to discuss a 'friendly settlement' with the "TRNC," she would be forced to wait for a comprehensive solution to the Cyprus problem before settling her case. Indeed, many Greek Cypriots share the Government of Cyprus's opposition to any act (such as filing an application for compensation or restitution) that would legitimize in any way an organ of the "occupation regime." There are also rumors that the government may consider introducing legislation expressly forbidding ROC citizens from applying to the Commission. If this works, the Turkish Cypriot side could, by default, appear blameless by having attempted to fulfill its duty to the ECHR. In such a case however, the question of whether the new Turkish Cypriot "local remedy" is "effective" could conceivably be postponed indefinitely. Most Turkish Cypriot sources believe this to be a highly unlikely scenario, and feel the Commission will be tested soon. Those legal experts close the "TRNC government" have told us that the Commission has already received applications for restitution/compensation from Greek Cypriots, albeit anonymously. Turkish Cypriot Opposition Files Challenges -------------- ¶9. (C) Meanwhile -- despite reports of heavy political pressure from the AKP to let the law stand -- the main nationalist opposition grouping, the UBP, has filed a constitutional appeal to the "TRNC's" highest court. UBP accused the ruling CTP of caving into pressure from the Greek Cypriots, and speaks on behalf of many Turkish Cypriots when it says the individual restitution of property in the north (up to 80 percent of which is Greek-owned) could open a Pandora's box and leave the Turkish Cypriots displaced from their homes -- without any of the benefits they might have gained had the property question been settled in the context of a comprehensive Cyprus settlement. Furthermore, UBP argues that the law is "unconstitutional" in that it allows redress for pecuniary damages -- an act tantamount to an NICOSIA 00000440 003 OF 003 admission of guilt by the Turkish Cypriot side. ¶10. (C) From the other end of the spectrum, the TKP (a tiny, far-left Turkish Cypriot opposition party) has also filed a complaint claiming that the Property Commission absolves Turkey of its responsibility for the Cyprus property question, leaving innocent Turkish Cypriots vulnerable. Turkish Cypriot legal experts doubt these challenges will overturn the law, however, although they do represent a political embarrassment to "President" Talat and the ruling CTP, which drafted the law. COMMENT -------------- ¶11. (C) A ruling by the ECHR that the Turkish Cypriot Property Commission, in fact, constituted an "effective local remedy" would have enormous political repercussions on Cyprus. ECHR legitimization of a "TRNC" institution (even indirectly as a "subordinate" entity of Turkey) would constitute a landmark victory for Turkish Cypriots, who have long resisted Greek Cypriot efforts to portray the Cyprus problem as a dispute between two sovereign states -- the ROC and Turkey -- rather than a conflict between the two communities on the island. An ECHR ruling that forced Greek Cypriots to deal directly with Turkish Cypriot authorities would be a major political boost to the "TRNC." This outcome is far from certain, however. Furthermore, even if the Court accepts the Commission, Greek Cypriots are certain to return to the ECHR with challenges to the fairness of its future rulings. The current wave of bitter and complicated property litigation (by both communities over land north and south) is unlikely to abate. END COMMENT. SCHLICHER