Monday, 8 March 2010

Key Judgments of Last Week

Let me highlight here three key judgments and decisions the Court delivered last week. The first is the judgment of Kozak v. Poland on the rights of homosexuals. The Court held that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was in the context of the case not acceptable as a way of defending family values and found a violation of Article 14 (discrimination, in this case on the basis of sexual orientation) in conjunction with article 8 ECHR.

The second is the long-awaited judgment in Al-Saadoon and Mufdhi v. the United Kingdom, about two Iraqis taken prisoner by the British troops in Iraq and handed over - against the Court's orders -to the Iraqi authorities (see my earlier post here). The Court found a violation of Article 3, since it had exposed the two to the death penalty which they would face in Iraq. The judgment is an important one in the series of decisions and judgments on the death penalty (see para. 123) of the judgment, for which the groundwork was laid amongst others in Kaboulov v. Bulgaria of November last year. For an analysis on EJIL talk, click here.

Finally, the Grand Chamber issued an admissiblity decision in a group of Cypriot property cases: Demopoulos v. Turkey and seven other cases. The decision is the latest in the series of cases on contested Greek-Cypriot property in the northern, Turkish-controlled part of Cyprus. In the Pilot Judgment Procedure of Xenides-Arestis v. Turkey (2005-2006) a chamber of the Court had indicated that Turkey should enact changes in the existing compensation mechanism, which it subsequently did. In the decision of last week, the Grand Chamber declared a number of applications inadmissible, indicating that the existing remedies in Northern Cyprus should first be exhausted. In this way, the Grand Chamber seemed to take a practical and pragmatic approach. It emphasized that it does not force people to use these remedies - they may also await a broader political solution. But if they do, they cannot yet apply to Strasbourg. This could be seen as a new example of renewed Strasbourgian assertiveness in the light of the large quantity of applications it still faces.

5 comments:

Anonymous said...

Antoine,

do you hold any opinion as to the effectiveness of the Immovable Property Commission set up by Turkey? How does it live up to the standards of ECtHR for property issues? I 'd be interested to read your views on the matter.

Nikolas Kyriakou
PhD researcher

Antoine Buyse said...

Dear Nikolas,

I do not have a clear picture of how the Commission functions in practice. The only important point that I can see as an outsider which would help to guarantee an increased awareness and impartiality and an external perspective on the issue is the inclusion, albeit a minority, of international Commission members. For more, see section 8.4 of my book 'Post-Conflict Housing Restitution'(Intersentia 2008) in which I also deal with the Xenides-Arestis case.

emeleagrou said...

I have a very clear idea of the effectiveness of the Commission as I am the only person, as far as I know who has properly exhausted the remedy by applying to the Commission and pursuing the process to the bitter end over the last 4 years. I have submitted an application to the Court and hope they will look at it now. The great mistake that the Greek Cypriot side made was to deal with this matter as if it was a political instead of a legal matter. Thus they insisted that the remedy was illegal and failed to test it properly so that they could have evidence to show whether or not the Commission was indeed an effective remedy under the Convention. As a result the Court, following consistently its own case law and jurisprudence as well as mindful of the heavy load of applications had enough evidence (as provided by Turkey) that the Commission is effective. To overturn that it will take years of testing and exhausting the remedy and returning to Starsbourg

Moriarte said...

"The ECHR has even placed a December 2011 deadline on applying for compensation..After this, refugees would have no legal claim to their properties in the north."

Could someone explain this further....is it saying that after the Dec 2011 deadline, all disputed Greek property not claimed for in the IPC suddenly become null and void and all titles and deeds are worthless? Does this mean 200,000 Greek Cypriots must now claim enmasse for their land in the next time period or losse everything? Couls someone please explain!

emeleagrou said...

There is a deadline for Dec 2011 its true but there was a deadline previously which they have extended. I dont think anyone can tell what will happen if there are thousands of applications(highly unlikely scenario) but it is reasonable to assume that the deadline will be extended again at least once. It is also true that this remedy can not be expected to operate indefinitely for all sorts of logical reasons (take a look at the Demopoulos decision for the effects on passage of time on claims to property rights and the way this affects the remedies on offer) as matters regarding property rights all over Cyprus have to, by hook or by crook,(ie an overall settlement and failing that local remedies both in the Republic , (see Custodian of TC properties) and the "TRNC" ) be settled at some point in the immediate future and not be left unresolved for ever; real politic