The Cyprus Problem at the European Court of Human Rights by Kudret Özersay and Ayla Gürel

The Cyprus problem at the European Court of Human Rights by Kudret Özersay and Ayla Gürel Introduction Human rights issues have almost constantly existed in Cyprus since the island‟s independence in 1960.1 However, the „protection of human rights‟ became a prominent concern in the efforts to find a settlement of the „Cyprus problem‟ only after the dramatic turn of events in 1974, which led to the island‟s de facto division along ethnic lines. The resulting massive displacement of persons from both communities clearly entailed violations of fundamental individual rights and freedoms. The issue of displaced persons‟ rights to their homes and properties has been a core item on the diplomatically delicate and tightly linked agenda of the inter-communal negotiations sponsored by the United Nations (UN) since 1974. However, irrespective of the negotiations, since the early 1990s this issue has also been a topic at the European Court of Human Rights (ECHR). This was because of cases resulting from Greek-Cypriot applications lodged against Turkey. To date, the ECHR has issued judgements on four individual applications (ECHR, 1995, 1996, 1998, 2003a, b, 2005a, b, 2006) and one inter-state application, by the Greek-Cypriot administration acting as the government of the Republic of Cyprus (RoC)2 (ECHR, 2001).3 In these judgements, Turkey has generally been found in breach of the European Convention on Human Rights with regard to the Greek-Cypriot displaced persons‟ rights to their homes and properties in northern Cyprus. The Greek-Cypriot government was involved in these proceedings either directly as an applicant or by intervention as a third party in individual applications. Although, of course, this is a right possessed by any „high contracting party‟ to the Convention, in the case of the Greek-Cypriot government it is significant that such involvement has been quite compatible with the latter‟s general strategy in the ongoing diplomatic battle over Final draft of paper published in Cyprus: A Conflict at the Crossroads, Nathalie Tocci and Thomas Diez, eds., Manchester University Press, 2009, pp. 273-291. 1 Cyprus. Generally put, this strategy consists in guarding the Greek-Cypriot government‟s – in fact, questionable – international status of being considered „the sole legitimate government of the RoC‟, as well as in taking advantage of this status to promote its political goals vis-à-vis the Cyprus problem (see Coufoudakis, 2006: 25–6, 89–90). More specifically, by obtaining international support – in both moral and legal terms – for its own position, the Greek-Cypriot side has hoped to exert greater pressure on Turkey and to strengthen its hand against the Turkish-Cypriot side in inter-communal negotiations. Essentially, this position depends on two convictions: first, that the issue of displaced persons‟ rights to their homes and properties is not a matter for political negotiations but a question of human rights, as required by international law; and second, that this issue can be solved only by fully restoring these rights, irrespective of any other commitments made in the framework of a settlement, such as bizonality. These convictions run contrary to the general Turkish/Turkish-Cypriot4 outlook that the issues involved in the Cyprus problem are not judicial but political. According to the Turkish side, this is particularly true in the question of rights to homes and properties, which, it claims, cannot be approached from a purely legal perspective. Nor can this question be treated in isolation from the other aspects of a political settlement, of which bizonality is the most crucial one. In the Turkish view, bizonality – a mutually agreed principle since the 1977 Makarios–Denktaş High Level Agreement – presupposes restrictions on the exercise of certain rights and freedoms, including the rights to pre-1974 homes and properties (Gürel & Özersay, 2006). Seen from the Turkish perspective, the Greek-Cypriot recourse to the ECHR was not conducive to the progression of the inter-communal negotiations. These negotiations were based on a commitment from both sides to a comprehensive settlement of the Cyprus problem through compromise solutions reached by mutual agreement. Ignoring this important rule of negotiation, the Greek-Cypriot side in effect sought independently and unilaterally to achieve its desired outcomes elsewhere. Indeed, the Greek-Cypriot side could be said to have attempted to resolve a key issue on the tightly knit agenda of the UN-sponsored talks through third-party adjudication – a process in which the Turkish-Cypriot side could have no formal status – instead of negotiation aimed at mutual agreement. In other words, by trying ultimately to get a high-profile international 2 court to support its positions and goals, the Greek-Cypriot side has attempted to score points against its Turkish-Cypriot interlocutors in the ongoing UN-sponsored negotiations. At any rate, the Turkish-Cypriot side has a natural tendency to see this move on the part of the Greek-Cypriot side as an instance of continuing „war by other means‟ rather than their seeking an honest reconciliation. Looking at the situation from a purely political angle, one could argue that the ECHR ought to have stayed clear of the Greek-Cypriot cases against Turkey, in order not to influence the UN-mediated negotiations through judicial intervention. The Court‟s acceptance of these cases had important implications with respect to both the procedure and the substance of those negotiations. Most crucially, the ECHR process implied debating certain core issues of the Cyprus problem within a framework that was fundamentally different from that of the UN. In the latter case, the two Cypriot sides were treated as equals in terms of their political status. This was evidently not so at the ECHR, where the Greek-Cypriot side was considered to be the legitimate government of the whole island and the Turkish-Cypriot side, at best, an unrecognised de facto authority, certainly lower in status than the Greek-Cypriot one. Notwithstanding the inherent danger of prejudicing the UN-sponsored negotiations, the ECHR was, from the outset, disinclined to refuse jurisdiction on these cases. This is because of the Court‟s self- perception as the most important organ within the human rights protection machinery created by the Convention. The ECHR sees itself as bound by a mandate that consists in upholding the „object and purpose‟ of the Convention and its coherence as a system for the protection of individual human rights (Mowbray, 2005: 59–60; ECHR, 2001: para. 78). Thus, what tends to influence above all the decisions of the Court is the „Convention‟s special and unique character as a human rights treaty, providing for application and enforcement of human rights‟, and the understanding of it as „an instrument of international law‟ that „is not concerned with the relations between states but with the rights of individuals, proclaiming solemn principles for the humane treatment of the inhabitants of the signatory states‟ (Mowbray, 2005: 60). From the Court‟s point of view, the Convention applies to the entire territory of Cyprus, by virtue of the RoC‟s ratification of it in 1962. The de facto division of the island since 1974 does not alter this fact. Therefore, the ECHR considers northern Cyprus 3 as a territory in which the individual rights and freedoms set out in the Convention must still be safeguarded (see the discussion on state responsibility in the next section). As demonstrated in its rulings, the Court‟s concern with the enforcement and protection of human rights in northern Cyprus has in fact been rather detached from either Cypriot party‟s own political agenda. Many observers of international affairs have noted that a clear division between politics and law is neither easy to draw nor particularly useful in understanding complex issues and developments (Reus-Smit, 2004). This is certainly true for the Cyprus problem, where the two sides have tried to sustain their essentially antagonistic policy objectives by casting key questions as either exclusively legal or exclusively political matters. Their performance before the ECHR has been the starkest manifestation of this attitude so far. In this chapter, through an analysis of its judgements on property-related Greek- Cypriot cases against Turkey, we analyse how the ECHR became an arena for a complicated interplay of politics and law. We do this by examining the major recurring political elements in the positions and arguments of the parties involved in the proceedings, and the Court‟s handling of these. We also discuss the present – and quite possibly future – consequences of the Court‟s rulings for the Cyprus negotiations under UN auspices. The Turkish attitude at the ECHR As mentioned above, the Turkish side perceived the Greek-Cypriot applications at the ECHR first and foremost as a political attack. Consequently, the actual human rights aspect of the cases within the context of the Convention‟s protection mechanisms has been viewed as secondary in the Turkish side‟s approach. This is very much reflected in the way its defence before the Court has been largely devoted to the purpose of preventing loss of any diplomatic ground to the Greek-Cypriot side in connection with the Cyprus negotiations. Indeed, until 2003, the Turkish side appeared to have rarely tried to formulate its points within the framework of the Convention or the jurisprudence of the Court. What follows is an analysis of the main Turkish arguments that illustrate this characteristic aspect of its attitude at the ECHR. However, after 2003 – and triggered especially by the developments related to the creation of „efficient domestic remedies‟ 4 within the Turkish Republic of Northern Cyprus (TRNC) – a certain readjustment began to occur in the Turkish approach (discussed below). The status of the TRNC was a major point in the Turkish defence in all the cases.

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