My aim is to discuss how the conflicting views of both sides on the issue of property can be reconciled and what the new constitution of a federal bizonal and bicommunal Cyprus should provide.
The two parties to the conflict have always been in agreement that the dispossessed owners’ rights to their property are to be recognised and that three remedies will be available to them: compensation, exchange and reinstatement. Their positions, however, as to how these remedies should be applied are diametrically opposed.
The Turkish Cypriot side’s position was that the Turkish Cypriots should be guaranteed a clear majority of property ownerships in the Turkish Cypriot Constituent State, and that the current user should have the first say on the fate of the property they are using – and hence compensation and exchange should have priority in terms of the remedies to be applied.
The Greek Cypriot side’s position is that the actual owner of the property should have the first say on the fate of their property and that reinstatement should be the primary remedy.
The Turkish Cypriot side’s position was that there should be ceilings on the right of reinstatement of property, a view that was rejected by the Greek Cypriot side. While the Turkish Cypriot side’s position was that restrictions on the exercise of the right to property should apply indefinitely, the Greek Cypriot side argued that any restrictions would apply only for an agreed transitional period and in a non-discriminatory manner.
In the course of the negotiations, the gap between the two parties was reduced by agreeing on certain criteria to be applied for some categories of properties and/or owners and/or users.
Factors to be considered
In reaching a comprehensive agreement on property, I am of the view that certain other factors, in addition to the convergences reached, should be taken into account, such as the following:
a) the Security Council’s resolutions: The Turkish Cypriot side invokes the wording contained in the reports of former UN secretaries-general Javier Pérez de Cuéllar and Boutros Boutros Ghali to the Security Council, which state that “each community will be firmly guaranteed a clear majority of the population and of the land ownership in its area”. It is not entirely clear, however, whether the resolutions of the Security Council that followed, fully endorsed these ideas.
b) the judgements of the ECtHR: The most relevant judgement of the European Court of Human Rights on the Cyprus property issue is the case of Demopoulos and Others Vs Turkey (1.3.2010) in which the court recognised the Immovable Property Commission of Turkey as an “effective domestic remedy mechanism”. In addition, it gave some guidelines as to the treatment of affected properties. The core conclusion from the remarks of the court is that, for humanitarian reasons, the current users have acquired certain rights on the properties they use, in consequence of the great length of time they have been the users of the said property.
c) the guidelines contained in the Antonio Guterres framework: The framework was presented to the parties during the Crans-Montana conference in June-July 2017. On property it provides that “in areas of territorial adjustment the owners will have preferential treatment but not by 100 per cent and in areas outside territorial adjustments current users will have preferential treatment but not by 100 per cent.”
d) the Kofi Annan Plan: Although the plan was rejected by the Greek Cypriot side in the 2004 referendum, it cannot be totally ignored. The plan contains detailed provisions for the new property regime which satisfy the concerns of the Turkish Cypriot side on the issues pertaining to the majority of land ownership and of the priority to be given to the current user. This new regime, however, was not to last for ever, but the property market would return to regularity, allowing free transactions as required by the European Acquis. The only temporary derogations provided for were contained in Article 1
(Property) of the draft Act of Adaptation of the Terms of Accession of the United Cyprus Republic to the European Union, which spelled that:
1. “Notwithstanding existing provisions of Community law, the application of restrictions, on a non-discriminatory basis, on the right of natural persons who have not been permanent residents for at least three years in the Turkish Cypriot constituent state, and of legal persons, to purchase immovable property in the Turkish Cypriot constituent state without permission of the competent authority of that constituent state, for fifteen years or for as long as the gross domestic product per capita in that constituent state does not reach the level of 85% of the gross domestic product per capita in the Greek Cypriot state, whichever is the earlier, shall not be precluded”.
Article 1 also contained some safeguards for avoiding any abuse of these provisions.
In view of all the above, I think the new constitution of the Federal Cyprus need not contain any details regarding the concerns of either side on the property issue. These concerns can be satisfied by:
a) agreeing on the criteria to be applied by the Immoveable Property Commission in order to establish a new, extraordinary, temporary regime, without any need for express reference to “majority of land properties” or “priority of users” and so on.
b) agreed temporary derogations from the European Acquis, on a non-discriminatory basis, similar to those in the draft act of the Annan Plan, mentioned above, and
c) the total liberation of the property market after the lapse, in a time period to be agreed, of the mandate of the Property Commission, the establishment of the new property regime and of the temporary derogations from the Acquis.
Andreas Symeou has participated in the past as the head or as a member of the Greek Cypriot working group on property in the Cyprus negotiations. He is also the author of two books on the property issue, one of them in English (“The property issue in the Cyprus problem: A technocratic approach”). He is currently participating in the bi-communal research project titled “Developing Common Ideas on Constitutional Issues”, funded by the European Union under the Aid Programme for the Turkish Cypriot community
