The propaganda
which emanates from the publicity machine of the Greek Cypriot
administration massively oversimplifies the situation with regard to
the purchase of land in the TRNC. It reads something like this.
There is only one government recognised by the United Nations and
the world community as representing the whole island of Cyprus. The
so called territory and Government of the TRNC is illegal and
unrecognised. Any acts therefore of the Government, institutions or
courts of the TRNC are invalid. The “rights” of the Greek Cypriots
in relation to land in the North of Cyprus remain exactly as they
were prior to partition in 1974 and any changes to which those
pre-1974 owners were not parties are of no effect. The need for the
Greek Cypriot authorities to descend to these levels has been the
result of the change in international sentiment following the vote
last year on the United Nations’ proposed solution to the problems
of the divided Cyprus, the Annan Plan. Although the Turkish Cypriot
community enthusiastically endorsed the Plan it was rejected by the
Greek Cypriot community. Though by no means perfect the Annan plan
sought to resolve the political differences through a federal system
based on a single national government representing and protecting
the interests of both communities with the day to day government of
each community determined by its own representatives. The Plan also
put forward a resolution of the property issues dealing both with
the land in the North previously owned by Greek Cypriots as well as
the less well publicised land in the South which had been owned by
Turkish Cypriots.
I think I can best
show how the analysis of the situation set out above is flawed by
moving on to two particular issues which it is suggested threaten
non-Cypriot buyers of land and property in Northern Cyprus.
Much is being made
of the case being brought by Mr Aposolides against Mr and Mrs Orams.
The brief facts are these. Mr Aposolides was prior to partition the
owner of a tract of bare and undeveloped land in Northern Cyprus.
Subsequently the land came to be registered at the Land Registration
Office of the TRNC in the name of a third party who sold the land to
Mr and Mrs Orams. Mr and Mrs Orams, a British couple who divide
their time between their home in England and Northern Cyprus, built
a house on the land and improved and landscaped it. Mr Aposolides
brought an action in the Courts in Southern Cyprus and obtained a
judgment requiring Mr and Mrs Orams to demolish the property which
they had built, to restore the property to Mr Aposolides and to pay
damages. Now clearly, Mr and Mrs Orams and the thousands of other
non-Cypriot owners of property in Northern Cyprus need have no
concerns over the judgment per se. It was obtained by a court in
the South of the island relating to property in the North (a part of
the island over which the Southern courts and adminstration have no
actual control) and it was obtained against people who are based in
the North. So far as Cyprus is concerned this is a paper judgment.
It is wholly unenforceable. However, the twist in the tale is that
Mr Aristolides has indicated that once the judgment has been
confirmed in a further hearing due in April 2005 he will seek to use
Cyprus’ accession to the European Union in 2004 as a means to
enforce the damages claim against Mr and Mrs Orams house and other
assets in England. He seeks to do this on the basis of an European
Union Directive dealing with the mutual enforceability of judgment
obtained in one member country in all and any others.
Certainly so far as
England is concerned Mr Aposolides will not be able to rely on the
Directive to seek to enforce his judgement. He seeks to enforce in
England the judgment of a Greek Cypriot Court. Those courts do not
exercise any jurisdiction over land or individuals in Northern
Cyprus. That is a matter of fact and one which the English High
Court has recognised in Emin v Yeldag reported at [2002] 1 FLR 956.
The effect of that decision is that the courts in England recognise
that Cyprus is a single country with two territories, each with
their own system of law. The decision of the English High Court was
made with the benefit of opinions both of the Attorney General, the
leading law officer of the British Government, and also a senior
official of the British Foreign Office
The land the
subject of the Orams case is situated in the area subject to the
system of law applying in the Northern part of Cyprus. Mr and Mrs
Orams spend their time on the island in the Northern part of the
island. An English court will rightly consider that any dispute
should be determined by the courts and in accordance with the law
which applies in Northern Cyprus.
And whilst it is
true that the Republic of Cyprus joined the EU on 1 May 2004 it must
be pointed out that Article 1 Protocol 10 of the Treaty of Accession
specifically excluded the application of EU law to that part of
island which outside the control of the internationally recognised
Cypriot Government. It does not apply to the land controlled by the
Government of the TRNC.
In English Law, and
this is confirmed by Community law, the courts will not enforce a
judgement which cannot be enforced in the state in which it is
obtained. The judgement in the Orams case cannot be enforced because
it is the judgement of a Southern Cyprus Court over territory which
has a separate legal system.
The other threat
which is now being made again derives from European Law following
Cyprus accession to the European Union. The Cypriot legislature
(from which contrary to the 1960 Constitution all Turkish Cypriot
representatives are excluded) has amended long standing legislation
to increase the criminal penalties relating to the illegal
occupation and use of property. In so doing, they hope to bring the
matter within the provisions of the “European Arrest Warrant” so
that the suggestion appears to be that by convicting foreign buyers
of property in Northern Cyprus in the Southern Cypriot courts it
will be possible to use the European Arrest Warrant to have people
extradited to Cyprus to serve their sentences or alternatively
extraditing people to stand trial in Cyprus..
Certainly, so far
as buyers based in the United Kingdom are concerned, this further
attempt to misuse the rule of law to apply political pressure will
not succeed.
In the United
Kingdom the rules relation to European Arrest Warrants have been
enacted in the Extradition Act 2003.
The simplified
process for obtaining extradition applies only to those countries
and territories which have been designated as “Part 1 Territories”.
At the present time Cyprus is not so designated. Indeed, not even
all the countries which made up the European Union prior to the
recent enlargement in 2004 are so designated. Only Belgium,
Denmark, Finland, Ireland, Portugal, Spain and Sweden are Part 1
territories. It should be noted that long standing EU members such
as France and Germany are not within the Part 1 designation.
The interpretation
provisions of the Act (Section 66) refer not to “country” but to
“territory” and as has previously been stated above there is clear
authority of the High Court in England that Cyprus “is one country
but with two territories, each with their own system of law” (Mr
Justice Sumner in the case of Emin –v- Yeldag).
It is submitted
that a decision of the Southern Cypriot court in relation to an
alleged offence relating to property in Northern Cyprus would not be
upheld as it would not be a decision of the appropriate judicial
authority for the “territory”
At the present time
Cyprus is a Part 2 Territory and as such an offence is only defined
as an “extradition offence” where it would also be an offence in the
United Kingdom carrying a possible sentence of more than 12 months
imprisonment. The conduct complained of by the Southern Cypriots
would not be a criminal offence in the United Kingdom and would not
fall within the Extradition Act 2003.
Even if that were
not the case there is then the question of when the courts will not
comply with a request for extradition. Section 13 of the Act
provides that a person’s extradition is barred if it appears that
the warrant has in fact be issued for the purposes of prosecuting or
punishing him or her on account of his or her race or
nationality. According to press reports Androulla Vasiliou, the
Deputy who introduced the change to the legislation has stated, “The
aim is not to get Turkish Cypriots, but to prevent foreigners from
taking Greek Cypriot land in the occupied north”. Clearly then any
warrants which are issued will be intended to discriminate on the
grounds of race or nationality and that will, in my submission, be a
fatal defect. In relation to application by a Part 2 Territory
Section 13 is mirrored in Section 81. and so the same considerations
would apply.
It can therefore be
seen that the threats being made by the Greek Cypriots are without
substance and need cause no concern to those wishing to invest in
Northern Cyprus
Martin Clitheroe LL.B (Hons)
In House Legal Advisor
PI Property International PLC and Medview Homes
Limited
London
April 2005
