Return vs Restitution: Property Rights of Internally Displaced Persons in the Wake of Cypriot Crisis
Historically, property law has been defined by laws sanctioned by each nation for its sovereign territory. International law recognizes that a sovereign nation has the right to implement its laws regarding property, amongst other laws. The title to the land depends entirely on the nation in which they lie. The conventional study of property rights project ‘A Benthamite legal positivism’. It showcases a relationship between law and land that Bentham famously explained by stating that property ceases to exist if that law that defines it is taken away. On the other hand, International law has been assumed to be restricted to the exploration of relationships between nations, completely detached from singular entities such as individuals within these nations. The impact of international law on property rights has been observed in fragments, however, there are aspects of property along with the rights attached to them that have begun to emerge on a global platform. The United Nations in 1948 after the Second World War professed that (1) Everyone has the right to own property alone as well as in association with others and (2) No one shall be arbitrarily deprived of his property in the Universal Declaration of Human Rights in Article 17. In the debates that followed, countries were conflicted about the definition of property and the restrictions that would have been applied to sovereign states to conform to the same. While countries accepted that every individual had rights over their property, the development of a global Right to Property became more challenging and endured intense scrutiny, which inconsequentially brought the initiative to bring about a universal definition of the Right to Property to a standstill.
Right to Property; UDHR Article 17; Property Law; Right of Refugees
The Pinheiro Principles: United Nations Principles on Housing and Property Restitution for refugees and displaced persons were passed in 2005 after years of consultations and debates over the issue of protection of the property and housing rights of refugees and internally displaced persons. The principles emphasised the importance of substantiating that refugees and internally displaced persons (“IDP”) have the right of restitution of their property as it were before the conflict that displaced them. Despite being a starting point for the quest of globalising property rights in relation to displaced persons, the document endured scrutiny for its over-simplification of the issue of property rights of refugees, focusing singularly on restitution and the return to the property rather than providing durable solutions. The principles reflected a disconnect between the understanding of property rights that were denied to refugees due to conflict and the restitution of the same.
As the world begins its stretch into the 21st century, forming a foundation for international property law has emerged as a matter of tremendous relevance. It has been observed that a lack of legislation on the aspect of international property rights has resulted in a gray area that needs to be defined in law to ensure justice to those that have lost the right to enjoy their property due to displacement. There are various incidents in the prevailing international geopolitical landscape that highlight scenarios where property rights and ownership must be defined. This research paper shall aim to critically study the rights of refugees and displaced persons to their property as was defined by the European Court of Human Rights (“ECHR”) during the ongoing Greek/Turkish conflict in Cyprus.
The Greek-Cypriot Crisis
The study of the situation in Cyprus becomes important in understanding the rights of property of individuals that have been displaced due to conflict as well as the issues related to restitution that may have been overlooked in the development of international property laws. After Cyprus gained its independence from the United Kingdom in 1960, the tension between the majority Greek Cypriots and minority Turkish Cypriots escalated. Violence erupted between the two sections of the country in 1963 and 1964 resulting in the displacement of 25,000 Turkish Cypriots and a relatively smaller number of Greek Cypriots within Cyprus by the year 1970. The Greek Cypriot President was overthrown by Turkey in 1974 when the nation invaded the island to protect Turkish Cypriots and took control of one-third of the country in the north of the island. About 200,000 Greek Cypriots fled to the south of the country controlled by the Republic of Cyprus, while around 65,000 Turkish Cypriots fled to the northern regions that were controlled by the Turkish Republic of Northern Cyprus (“TRNC”).
As a result of the displacement, the Greek Cypriots in the south were allotted government housing and financial aid by the Republic of Cyprus, meanwhile, the TRNC allotted the land of the displaced Greek Cypriots to the Turkish Cypriots that had moved to the north, issuing concession certificates that permitted them to use the properties. As per Article 159 (1) (b) and (c) of the TRNC Constitution, a classification was made that any property that was abandoned on 13 February 1975 belonged to the TRNC, hence could be allotted to displaced Turkish Cypriots by the authorities. Travel between the two regions was restricted until the new president of TRNC relaxed the travel restrictions in 2003. This resulted in large-scale movements from one region to the other. It must be noted that there was no significant increase in returns. The Greek Cypriots displaced in the south continued to protest their eviction by the TRNC authorities. In subsequent years, the domestic Cypriot Courts provided relief in favour of the IDPs in some seminal cases. For instance, in the 2005 judgment of Apostolides v Orams, a Greek Cypriot court ordered a British Couple to demolish their villa in Northern Cyprus and return the land to the Apostolides family that was displaced in 1974. This decision was upheld on appeal at the Court of Appeal in England and the Grand Chamber of the European Court of Justice.
i. Subsequent Litigation and their Contribution to Property Rights of Refugees
Cases of restitution of properties of refugees and IDPs have been heard in regional human rights courts as well as international criminal courts. The ECHR has witnessed several landmark cases relating to the issues of the property rights of refugees. In the judgment of Loizidou v. Turkey, the court received a complaint from Mrs. Titina Loizidou who had been prevented from returning to her property in northern Cyprus that she was displaced from during the 1974 Greek/Turkish conflict. She filed a complaint claiming that her right under Article 8(1) of the European Convention on Human Rights (“The Convention”) which states that “Everyone has the right to respect for his private and family life, his home and correspondence”, had been infringed along with Article 1 of Protocol 1 of the Convention which states that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.
The court defined property in this case through two particular distinctions. Firstly, the court stated that the plaintiff’s right under Article 8 had not been infringed since the property in question was simply land and did not have a house as per the rights defined in the Article. This is interesting merit that was awarded to the definition of property from this case as it put forth that the right to respect for his home in Article 8(1) did not apply to any property other than places of residence. Secondly, it was held the plaintiff’s right under Article 1 of Protocol 1 had been violated since she was barred from using her property as per her own volition, and due to her displacement and the bar from the TRNC had lost control over any use or enjoyment of said property. Despite not fitting the definition of home as prescribed under Article 8(1), the plaintiff’s property was classified as her immovable possession. The court rejected the justification provided by the defendants that the property of the plaintiff was being used as housing for displaced Turkish Cypriots, and upheld that the plaintiff cannot be deprived of her property for any reason without compensation. She was awarded more than 1 million euros as compensation for her anguish, which was paid to her after seven years of protest from the Turkish government. TRNC made it clear at the payment of the compensation that the delivery on the part of the government did not set a precedent that they would compensate all aggrieved parties. This, however, did not stop the court from using this judgement as a precedent in similar cases that emerged, to accurately hold the TRNC accountable for human rights violations.
Several other cases emerged that demonstrated that the Greek/ Turkish conflict left Greek Cypriots more afflicted economically and in terms of the enjoyment of their property than Turkish Cypriots. The courts in deciding this case as well as subsequent cases have affirmed that property and the rights attached to the property of the refugees and IDPs was an important aspect in any settlement talks between the two countries. Cases such as Cyprus v. Turkey emerged in the ECHR which concerned numerous complaints from Cyprus against Turkey claiming violation of Article 8 and Article 1 of Protocol 1 of the Convention. The court upheld the ratio of Loizidou judgement to condemn the ongoing restrictions of the TRNC on the rights of the Greek Cypriots.
ii. The Aftermath of the Loizidou Judgment
The seminal ruling in Loizidou opened the floodgates of litigation against the TRNC, which resulted in the authorities passing Law no. 49/2003 to divert the cases in the ECHR to local authorities in order to exhaust all local remedies first before reaching International forums. However, the court found the application of Xenides-Arestis v. Turkey admissible in court on the grounds that the remedy established could not be regarded as an effective or adequate means for redressing the applicant’s complaints, and held that Turkey was in violation of both Article 8 and Article 1 of Protocol 1 of the Convention. In this case, the Appellant had argued that the forced displacement of her and her family by the Turkish military forces and was prevented her from having access to, using and enjoying her property. In its judgment, the court brought forth the prevalent problem in Cyprus regarding hindrance of the property rights and peaceful enjoyment of possession, while also stating that the 2003 law sanctioned by TRNC was not sufficient. The court ordered Turkey to establish an effective remedy within local authorities within 3 months to cease the infringement to the rights of other applicants from Cyprus facing the same problem. The court, however, did not explicate the form of remedy that must be provided by Turkey. Consequently, the Parliament of the TRNC enacted the Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus in 2003 and set up the Immovable Property Commission (“IPC”).
The case of Demopoulos and others v. Turkey was instituted after Turkey had created the IPC, a domestic body that was intended to handle the claims of restitution or compensation regarding immovable property, pursuant to law 67/2005. This implicated that before approaching the ECHR, all aggrieved persons had to exhaust the remedy of IPC provided by the TRNC as per Article 35 of the Convention. The respondents in the Demopoulos case argued that the IPC was established as per the guidelines laid down by the ECHR in the Xenides- Arestis judgement. They argued that the IPC was a legally valid tool that provided a remedy to the issue in question effectively. On the other hand, the applicants argued that the IPC set up by the TRNC was not competent in providing an effective remedy as it was operated by authority granted by an unlawful occupier which was widely resented and distrusted by Greek Cypriots. The court rejected the application in Demopoulos because the applicants had not exhausted the domestic remedy. This case is important as it emphasised that there are remedies other than restitution available to the IDPs. However, the case had a negative impact on the understanding of the property rights of refugees as it gave priority to political realism rather than ensuring that the established rights of the IDPs are not infringed. Similar cases have been blocked from being instituted in the ECHR pursuant to this judgment, and the only manner of bringing a claim would be if the applicant argues that they were not adequately compensated after exhausting all domestic remedies.
In Meleagrou v. Cyprus, the applicant unsuccessfully challenged that the decision of the IPC was in violation of the right to property and fair trial, up till the TRNC Supreme Court. This judgment reflected the adverse impact of the Demopoulos judgment on Greek Cypriot property, as it would be difficult for such applicants to obtain a fair remedy from the IPC and other domestic courts and then go on to successfully challenge an unfavourable decision in the ECHR.
The departure of Demopoulos from Loizidou established a dangerous precedent that fundamentally undermined the established rights of the displaced. In compliance with Article 35, the court presumes that it is the duty of local authorities to amend any wrongful acts pertaining to human rights that were committed by their government. The court identified the practical difficulties that it was facing in order to provide a remedy to the magnitude of cases that had emerged from the conflict and emphasised the importance of relying upon nationally set up redressal councils that would reduce the number of cases that were being registered in the ECHR. It was stated that only cases that the IPC was unable to resolve should be taken up by the ECHR, and since the applicants in Demopoulos had not approached the IPC at all, their application was subsequently rejected.
In the course of establishing international property rights, Demopoulos elaborated upon the notion of legal title of the land of the displaced persons on the basis of their degree of attachment to the property. The court recognised that every disputed piece of property in the territory under the TRNC would have realistically been passed from one occupant to another. This would raise a question as to the extent of the validity of a legal title and the expectation of enjoyment of property of an individual that came from such title. It was stated that any form of remedy being provided to the complainants would have to depend upon the attachment of the individual to such legal title as well as the time elapsed since the individual lost control over the property. The fact that any property that is immovable remains a material commodity that can be exchanged or compensated was accentuated. The court relied heavily upon political realism in the decision as they declared that any requests for restitution would be futile and injudicious since awarding restitution of any property that was issued by the TRNC to displaced Turkish Cypriots would result in the eviction of such individuals, resulting in more anguish to individuals than necessary. This case signified the limited adjudicatory role of the ECHR in relation to property rights as they clarified that the court was limited to issues of human rights and was not in the position to interpret any other international law in isolation.
The ECHR did not acknowledge the effect of the procedure followed by IPC. Any claims that were registered in the IPC had to be from applicants that held legal title to the land, leaving the individuals that did not hold such title defenceless. The court’s classification was based on the time factor in deciding cases of restitution deemed problematic. It was overlooked that the infringement of the right of an individual does not diminish with the passing of time. Furthermore, the court also failed to effectively address the element of abandonment of land that was a criterion in allotment to the Turkish Cypriots and the subsequent damages that were awarded to the Greek Cypriots for the loss of enjoyment of the right to property. By way of Law no. 67/2005, compensation was only available to applicants claiming rights over immovable or movable property which belong to them before 13 February 1975 and had been abandoned for reasons beyond their control, and others were barred from lodging complaints contrary to Article 14 of the Convention.
The UN charter states that all disputes must be settled in compliance with principles of justice as prescribed under international law. Moreover, principal 2.1 of the Pinheiro Principles states that compensation as a remedy must only be evoked if restitution is practically unachievable. The Pinheiro Principles as an instrument is not legally binding but is constituted as a guiding source in the matters of property restitution. The court should have specified that protection provided under international law cannot be erased with the consideration of time since absolving the actions of TRNC based on the factor of time sets a dangerous precedent in international law.
Concluding Remarks and the Way Forward
The importance of establishing a uniform international property law becomes evident when cases such as Demopoulos emerge. Displacement of individuals due to internal or external conflict is a phenomenon that is not unheard of. The fundamental rights established by international courts of law cannot be ignored when the rights of individuals are afflicted due to conflict. Alluding to legal positivism presented by Jeremy Bentham, property owes its existence to its perception in the face of law and the rule established in Demopoulos takes away the law that established the property rights of refugees. The reliance upon classifications such as time and attachment to the property only aids in diminishing the affliction IDPs endure. It has become increasingly evident that international conflicts, similar to the Greek/ Turkey conflict are deeply influenced by the property rights of individuals, any infringement of the same must be amended in order to broker peace between the nations. The legal ramifications of the decision in Demopoulos are inescapable as it confines the property rights of refugees to its classical interpretation. The progress that was made by cases such as Loizidou, as well as Cyprus in determining the international rule of law in terms of property, was annihilated by Demopoulos, and to achieve any progress on the increasing relevant disciple of law, the case must be revisited and amended in the international courts.
 21 U.S. (8 Wheat.) 543 (1823).  Jeremy Bentham, The Theory of Legislation 69 (Oceana Publ'ns 1975) (1802).  Statistics are taken from N. Kliot and Y. Mansfeld, ‘Resettling Displaced People in North and South Cyprus: A comparison’ Journal of Refugee Studies, 7, 1994, 328 at 328.  Ibid. at 329.  Loizidou v. Turkey, 15318/89, Council of Europe: European Court of Human Rights, 18 December 1996  .  Eleni Meleagrou and others, 14434/09, Council of Europe: European Court of Human Rights, 02 April 2013.
[*] Aakanksha Singh is a fourth-year student at Jindal Global Law School, Sonepat, India.
Preferred Citation – Aakanksha Singh, “Return vs Restitution: Property Rights of Refugees in the wake of Cypriot Refugee Crisis", Syin & Sern Law Review, 9th February 2022.