lemon-tree1

Linda and David Orams did what so many other English couples have done.  They bought a second home.  They chose to purchase a property in the north of Cyprus, that is, in the part of the island illegally occupied by the Turks following the invasion of the island in 1974, an occupation which has continued ever since.  Whilst the invasion may arguably have been a legitimate attempt to protect the Turkish Cypriots from the threat posed by the desire for enosis, or union, with Greece*(1), the continued occupation of the territory in the north is undoubtedly unlawful.

Fearful of their lives, many Greek Cypriots fled from the north to the south of the island, beyond the reach of the Turkish invaders.  They left behind everything they could not carry, including properties which had often been in their families for generations, productive land which had been carefully tended.

The Turks installed a government in the occupied northern territory of Cyprus, a government which no other country has recognised as legal.  It also moved large numbers of mainland Turks to the island to swell the number of Turkish Cypriots already living there.  Many of these incomers were allowed to occupy the properties abandoned by the Greek Cypriots.

As time moved on, the Turkish Cypriots wanted to create a market in property to aid their failing economy – living standards had fallen a long way below the standards in the rest of the island.  No legal title to the confiscated properties could be conveyed, since the Turkish occupiers had no legal title to give.  A quasi-title was invented, and the market began to move, fed to a large extent by British purchasers blind to the inequity of buying something that the seller had no right to sell.  The properties were cheap by comparision with similar properties in the rest of the island.

Mr and Mrs Orams were one such couple.  They purported to purchase the title to land in Lapithos, Kyrenia, that was legally owned by Meletis Apostolides, a Greek Cypriot whose family had fled from the north when he was 24.    Unsurprisingly, the family wanted to recover their land, and brought an action in the Cypriot courts asking for its restitution.  The Cypriot courts continue to maintain jurisdication over the whole island, despite having no effective control over the occupied north.   A court in Nicosia gave judgment in favour of the Apostolides family.  The Oramses had built on the land, so the judgment ordered that the building be demolished, the land returned to the rightful owners, and compensation paid to Mr Apostolides.

That was all well and good, but it was impossible to enforce the judgment against the property in northern Cyprus, and so the Apostolides family took advantage of the fact that, by now, Cyprus had joined the European Union.   This meant an EU legislative instrument, Regulation 44/2001*(2) could be used to apply to the British courts to enforce the Cypriot judgment against property that the Oramses owned in England, namely their family home.

There is a certain beautiful symmetry in this – the Oramses begin to fear that they will lose their family home, though in circumstances far less traumatic than the loss of the property belongin to the Apostolides family.

Cherie Booth

The Orams couple managed to procure a high profile advocate – none other than the then Prime Minister’s wife, Cherie Booth who represented them in the Court of Appeal.   Their legal costs are being met by “mystery backers” according to a recent article in the Cyprus mail.   I’ll leave you to draw your own conclusions about the identity of the mystery backers: the Apostolides family are represented by a English lawyers and Cyprus intervened in the case with its own team of Cypriot and English lawyers.  Greece also made interventions.  Useless, then, to pretend that this case is not political, that it might not produce huge ramifications for the peace process that re-started following the election of the new Cypriot President, Dimitris Christofias, in February 2008.

In June 2007 the Court of Appeal was persuaded to make a reference to the European Court of Justice  (ECJ) for a preliminary ruling, in a procedure that involves the British court posing a question or questions to the European court in Luxembourg on the proper interpretation to be given to the EU legislation.  Once an answer to the questions is received, the British court then decides the case, taking into account the answers it has been given, applying the interpretations to the facts.  

A hearing took place in the ECJ in the late summer last year.  The procedure in the ECJ provides for an Advocate General (AG) to be appointed to each case.  The role of the AG is to give an opinion following the hearing, but prior to the judges’ deliberations.  A German AG, Advocate General Kokott, was assigned to the case, and she gave her opinion just before Christmas.  It is a timebomb, waiting for the judges to light the fuse.

Dr Julianne Kokott

For she found that the Cypriot courts did indeed continue to have effective jurisdiction over the whole of the island, notwithstanding the illegal occupation, and notwithstanding the fact that the Cypriot government has no effective control over the northern part of the island.  As a result the Nicosia court was acting within its powers when it gave judgment in favour of the Greek Cypriots and that the judgment could then be enforced in another EU country using the provisions of the EU regulation.

The Advocate General met head on the likely consequences of a judgment of the European Court of Justice on the settlement of the more general property issues in northern Cyprus.  These property issues relate to all the property abandoned by Greek Cypriots.  Parallel court proceedings in the other European court, the Court of Human Rights in Strasbourg, have resulted in the human rights court approving a new system for compensating those who have been deprived of their properties.  

Whilst acknowledging that the international community had an obligation not to do anything which might make the political situation in Cyprus worse, she states that a decision in favour of Mr Apostolides might rather have the effect of improving relations and that, moreover, the principle of legal certainty requires the matter to be decided. 

It is certainly true that the Security Council has repeatedly called for the preservation of peace in Cyprus and of the country’s territorial integrity. In that context, the international community has also made calls to refrain from any action which might exacerbate the conflict. However, it is not possible to infer from those rather general appeals any obligation to refrain from recognising judgments of Greek Cypriot courts which relate to claims to ownership of land in the Turkish Cypriot area.

Moreover, it is by no means clear that, taken overall, the application of the regulation exacerbates the Cyprus conflict. It may equally well have the opposite effect and promote the normalisation of economic relations. It is precisely because the line between the two areas of Cyprus has been opened up for the movement of goods and persons that it is possible to envisage many different legal relationships in which the recognition and enforcement in other Member States of judgments given by courts of the Republic of Cyprus and the application of the rules on jurisdiction in the regulation are also of interest to parties residing in the northern area.

… 

It is not necessary here to determine definitively what effect the suspension of the application of the regulation to cases involving elements with a bearing on northern Cyprus has on the political process for resolving the conflict. The application of the regulation cannot be made dependent on such complex political assessments. That would be contrary to the principle of legal certainty, respect for which is one of the objectives of the regulation. Accordingly, the rules of jurisdiction in the regulation must enable, in a clearly predictable manner, the court having jurisdiction to be determined. 

Furthermore, the claimant in proceedings before a court of a Member State must be able to foresee with sufficient certainty whether, on the basis of the regulation, a judgment concluding proceedings is enforceable in another Member State, in so far as none of the grounds for non‑enforcement provided for in the regulation is present.

Consequently the Advocate General concluded that the fact that the Cypriot government does not exercise “effective control” over the whole of the island is no reason why the judgment of a Cypriot court relating to property in that area of the island should not enforced in the courts of another EU Member State. 

“The suspension of the application of the acquis communautaire in the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control, provided for in Article 1(1) of Protocol No 10 to the Act of Accession of 2003, does not preclude a court of another Member State from recognising and enforcing, on the basis of Regulation No 44/2001, a judgment given by a court of the Republic of Cyprus involving elements with a bearing on the area not controlled by the Government of that State and the EU regulation may properly be used to enforce that judgment in the British courts.”

Both sides now wait anxiously for the judgment of the Grand Chamber of 13 judges, presided over by the Greek President of the Court, Vassilios Skouris.  If they confirm the opinion of the AG then the way is open for all the other Greek Cypriots who continue to own property in the north which has changed hands to bring actions against the new purported owners.  Although judgments awarded in their favour will still be impossible to enforce in the northern part of the island for the time being, the EU convention will have been shown to provide effective machinery for enforcing the judgment against property of the purported owners in other EU countries. 

More importantly, a judgment in favour of Mr Apostolides will kill the property market in the north of Cyprus and force a resolution of the larger property questions that have dogged peace negotiations since the invasion.  Mr and Mrs Orams will most likely discover that the Court of Appeal does not show mercy, and they, or their mystery backers, will have to comply with the terms of the origianal Nicosia court order and remove their swimming pool and return the land to the lemon grove it once was.  Bravo Kokott. 

You see, I don’t have any sympathy at all for Linda and David Orams.  It is inconceivable that they did not know the position when they purchased the property, and I fail to understand why they continue to maintain that they have any rights to the property now and nor do I understand why they have allowed themselves to be puppets of the Turkish Cypriots.  They are handling stolen goods.  If the British purchasers of property in the northern Cyprus, and those of their ilk, had held off, not gone ahead with the purchases, the Turkish Cypriot administration would have been forced to confront the situation far earlier and reach a settlement with the Cypriot government.

 Mr and Mrs Orams, smiling

*(1)  “Turkey exercised its right of intervention in accordance with Article IV of the Guarantee Treaty of 1960.” (Standing Committee of the Consultative Assembly of the Council of Europe 29th July 1974).

Athens Court of Appeal, in its decision of March 21, 1979, also held that the intervention of Turkey in Cyprus was legal:

…. The Turkish military intervention in Cyprus which was carried out in accordance with the Zurich and London Agreements was legal. Turkey, as one of the Guarantor powers, had the right to fulfil her obligations. The real culprits… are the Greek Officers who engineered and staged a coup and prepared the conditions for this intervention.”  (Decision No. 2658/79 23 March 1979)

*(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

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