ECHR ENDORSES PROPERTY SWAP BUT SIDESTEPS THE TURKISH

UNCLAS SECTION 01 OF 02 NICOSIA 000270

SIPDIS

SIPDIS, SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PREL CY
SUBJECT: ECHR ENDORSES PROPERTY SWAP BUT SIDESTEPS THE TURKISH
CYPRIOT "PROPERTY COMMISSION"

Ref: 07 Nicosia 811


1. (SBU) Summary: The April 22 decision of the European Court of
Human Rights (ECHR) approving a property swap between Greek Cypriot
refugee Michael Tymvios and Turkey fell short of declaring the
Turkish Cypriot "Property Commission" an effective local remedy, a
finding that the Republic of Cyprus had feared could confer indirect
recognition on the "Turkish Republic of Northern Cyprus." However,
the burden of implementing the ECHR decision now falls on the
shoulders of the RoC, since the Turkish Cypriot-owned property
awarded to Tymvios lies in the government-controlled area.
Government officials must choose between two options both carrying
significant risks: accepting the ECHR decision, a potentially
precedent-setting move that could leave it susceptible to a flood of
copycat cases, or opposing it, earning the Strasbourg court's ire
and threatening Greek Cypriots' continuing use of international
litigation to settle property claims.


2. (SBU) In a second judgment, the Court ordered Turkey to pay
835,000 Euros (USD 1,333,000) to a Greek Cypriot refugee (Demades)
for loss of use of his property in Kyrenia, in the T/C-administered
area. The latter ECHR decision was hailed by Greek Cypriots as yet
another blow to Turkey since it reaffirmed that refugees retain
ownership of their properties in the north. Post will report Septel
additional reactions from both sides of the Green Line, as well as
the Government's thinking on maintaining the "lawsuit track" even as
preliminary negotiations on property and other elements of the
Cyprus Problem continue. END SUMMARY.

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Tymvios vs. Turkey
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3. (U) On April 22, the European Court of Human Rights issued a
long-awaited decision approving a friendly settlement reached
between Greek Cypriot Michael Tymvios and the Government of Turkey.
The deal in question was brokered by the Turkish Cypriot "Property
Commission" in May 2007, and entailed striking the case from the
ECHR's docket, an action that caused consternation in the G/C
community and RoC (Reftel). Tymvios, a well-known businessman and
chemist, in 1990 had filed his case against Turkey for damages over
loss of use of his property in the north, now home to "illegal"
Ercan Airport. The ECHR found in 2003 in his favor, but a decision
on actual compensation looked distant and Tymvios was deep in debt.
Tymvios and the Turkish Cypriot "Property Commission" met sometime
in 2007 and, on May 21 of that year, reached a friendly settlement.
The deal called for withdrawal of his application before the ECHR
and exchange of his property in the north for Turkish Cypriot
property in the city of Larnaca, in the south, plus one million
dollars.


4. (SBU) News in 2007 that the ECHR might soon bless the property
swap had caused tremors in the Greek Cypriot community for two
reasons: firstly, that such a decision would confer a degree of
recognition on the "TRNC" by declaring the "Commission" an effective
local remedy which must be exhausted before G/C-originated property
cases against Turkey could be filed in Strasbourg; and, secondly,
that the ECHR finding could lead to the collapse of the Guardian of
Turkish Cypriot Property Law, the RoC statute that bars Turkish
Cypriots residing in the north from reclaiming their properties in
the south. The RoC unsuccessfully attempted to prevent the
sanctioning of the land swap by intervening in Court proceedings and
questioning Tymvios's ability to enter into any settlement in light
of his earlier declaration of bankruptcy.


5. (U) Strasbourg officials, however, opined that Tymvios's
bankruptcy had no bearing on the case. Further, the plaintiff
accused the government of persecuting him and acting vindictively
against him ever since he agreed to the friendly settlement in 2007.
As proof, he revealed that in January, the Ministry of Commerce and
Industry had foreclosed on a piece of his property and immediately
sold it at a price far below its market value. He also said that
foreclosure proceedings had been initiated for his chemical
laboratory and, as result, he would soon be rendered jobless.
Tymvios had communicated these complaints to the ECHR.


6. (SBU) Lawyer and property expert Achilleas Demetriades told us
April 23 that, while the Tymvios decision did not "upgrade" the
Turkish Cypriot "Commission," it could still have grave effects on
the Guardianship Law, depending on how the RoC decided to deal with
the case. If the Land Registry Department, citing restrictions in
the Guardianship Law, refuses to transfer the property in Larnaca to
Tymvios -- a possibility, since the original T/C owners do not
reside permanently in the south -- Tymvios is already on record
stating he will file suit in Strasbourg against the government.
Such a refusal risks international condemnation, however, and could
prove disastrous to the RoC-blessed practice of G/Cs seeking redress
through international courts. Demetriades considered some sort of
"out-of-court" arrangement between the RoC and Tymvios the most
likely outcome, although he did not rule out the government

NICOSIA 00000270 002 OF 002


transferring the property outright. Should the RoC fully implement
the ECHR decision and allow Tymvios to register his property through
normal channels, additional, direct property exchanges between
displaced G/Cs and T/Cs likely would occur.

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Demades vs. Turkey
--------------


7. (U) A second ECHR decision handed down on April 22 called on
Turkey to pay 835,000 Euros (USD 1,333,000) to the heirs of John
Demades for loss of use and enjoyment of their property in Kyrenia.
The ECHR's principal judgment finding Turkey responsible for
"continuing violation of the Convention of Human Rights and
Fundamental Freedoms" had been issued in July 2003. In its latest
finding, the Court rejected the Turkish government's request to
refer the case to the "Commission," stating that since the Court
earlier had decided on the merits of the case, it should determine
the issue of just satisfaction as well.


8. (SBU) The Court reiterated that, as in the earlier cases of
Titina Loizidou vs. Turkey, Cyprus vs. Turkey, and Xenides-Aresti
vs. Turkey, displaced Greek Cypriots could not be deemed to have
lost title to their property as a result of the events of 1974. As
such, ECHR-awarded compensation was confined to losses emanating
from the denial of access, and the loss of control, use and
enjoyment of their property. Demades's lawyer Demetriades, who had
represented Loizidou and Xenides-Aresti as well, commented that the
decision "quantified the cost of Turkey's occupation of Cyprus." He
pointed out that the damages awarded for loss of use were almost
double the amount that Turkey had offered to his client to settle
the case.

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Comment
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9. (SBU) If not exactly promoting the practice, past Greek Cypriot
administrations certainly condoned the seeking of international
court redress by displaced Greek Cypriot property owners. As long
as the decisions favored Nicosia and tarred Ankara, as Loizidou,
Arestis, and others earlier had, the strategy made great sense.
With Tymvios, however, Strasbourg has delivered at least a partial
victory to the other side, leaving many in the south worried about
long-term repercussions. Early bluster by some in the
administration to oppose the ECHR's ruling over technicalities has
since given way to more measured statements, with experts cognizant
that, having adopted and supported the legal track for years, the
government must be prepared to accept and implement all outcomes,
not just favorable ones. The government spokesman subsequently
pledged the administration's intention to work closely with the
Attorney General to determine the RoC's course of action.
Encouragingly, he also reiterated that the Cyprus Problem - and not
just its property component -- required a political, not a legal
solution. We agree, and will suggest to leaders that the growing
uncertainties involved in using international legal fora to pursue
local property claims should serve as a strong impetus to negotiate
the necessary political solution.