"Justice" in Cyprus, is "Just-Us" Are
we headed for a semi-official Apartheid?
"Boy, you're gonna carry that
weight
Carry that weight a long time Boy, you're gonna carry that weight Carry that weight a long time." - the Beatles, 1969 A recent Supreme Court decision on the case of a Turkish Cypriot refugee named Ahmet Mulla Suleyman is the latest in a series of criminal and negligent acts and failures by authorities of the "legal" Republic of Cyprus which are steadily eroding the Republic into an illegitimate entity infested by institutionalized racism and oriented by its leaders toward a semi-official system of apartheid. Ahmet Mulla Suleyman is one of our compatriots, one of the many thousands of Turkish Cypriots who were displaced from their homes in the southern part of the island and now live under the military occupation regime in the north, in a part of the world where there is no legally constituted Government, no application of international law whatsoever, nor any enforcement of laws of the European Union, nor of any other country. Not even the laws of Turkey - the Occupying Power, according to the legal language of the Geneva Convention - are applied or enforced there, since the legal Government of Turkey claims that it does not rule over northern Cyprus at all, while the elements of the occupation regime (civic authorities, courts, police, politicians) in northern Cyprus are answerable only to the military occupation authorities from Turkey. Suleyman is a citizen of the Republic of Cyprus asking the Republic for help - but why are its Courts and Government not supporting him? Ahmet Mulla Suleyman - just like all refugees all over the world - has an inaliable right to accces, use and manage his property any way he wants, including the right to sell or transfer ownership, and the right to be compensated for abuses or unlawful usage of his property. In accordance to those rights, Suleyman had requested access to his property in the south - he was refused, was then forced to appeal the Government's decision in Court, and the Court decided against him. He then appealed to the Supreme Court. His case was just recently heard there and the final decision announced in May. As reported by the establishment Press and Media and confirmed by commentaries from politicians and legal observers, the case of Ahmet Mulla Suleyman received a terrible blow at the Supreme Court. It sets a precedent of injustice framed in legal language that eventually will harm everyone in Cyprus, the people of both ethnicities in the north and (mostly) in the south of our divided country. But let's start with some features of the Supreme Court case which were never reported in the mainstream Press and Media - in the text below, Suleyman is sometimes referred to as the Appelant, meaning the person who Appealed, and the Government referred to as the Defendant: The Supreme Court ordered the
Government of Cyprus to resume work immediately on the many-faceted
projects aimed at restoring viability of the abandoned Turkish Cypriot
communities in the areas under its control, including steps that will
maintain the market value of the abandoned properties at levels
comparable to what the prices would have been if the preceding decades
had unfolded in "normality";
The Supreme Court ordered the Government to start immediately rebuilding schools and clinics in the Turkish Cypriot villages and community neighborhoods, as well as to engage in the repair and modernization of roads, restoration of electricity and water supply; The Supreme Court ordered the Government to take every step to ensure that Turkish Cypriot refugees are invited through massive public campaigns to return to their homelands, and enabled to do so through social and material reconstruction - among other things, the Court ordered local and regional zoning boards to re-direct their licencing priorities for new and old businesses so that returning T/C refugees will have access to gainful employent; it ordered bilingual education programs to be implemented immediately in all schools within and adjoining all Turkish Cypriot and ethnically mixed communities; The Court ordered the Government to enable the formation of democratic self-governing bodies among the communities of returning Turkish Cypriot refugees, including the activation of armed community and unarmed self-defense organizations, community- owned radio stations, school boards, independent co-ops for farming, industry and small-business ventures, to ensure economic viability and communty growth; The Supreme Court found the Defendant (the Govt. of the Republic of Cyprus) guilty of negligence on all counts in relation to its responsibility to actualize the much-touted “Measures to Support the Turkish Cypriots” which were announced by the President of the Republic in 2003 when movement restrictions were loosened by the occupation forces in the north. The Court found that the Government's plan for the “Measures” was to be a good beginning at the time, but only very little of that was ever actualized, thus making it impossible for Turkish Cypriot refugees to consider returning to their homelands en masse in a safe climate within viable social-economic conditions. In particular, on the subject of economic recovery and long term viability and vitality, the Supreme Court ordered the Government to set up programs that will distribute grants and low-interest loans for housing needs and for small business start-up initiatives for returning Turkish Cypriot refugees. Additionally, to bolster the legal protection and corporate viability for both old and new forms of alternative economy entities such as worker-owned production co-ops, communes and collectives, and community-owned non-profit businesses with special attention to the economic entities owned and operated by Evkaf (these are properties collectively owned by the Islamic community; they are operated under the Stewardship of a religious foundation named Evkaf - also known as Vakf, or Vakouf, or Vakif); Furthermore, the Court ordered the Government to ensure that during the transition phase of the return to their homerlands, Turkish Cypriots will be aided by additional measures such as free or subsidized bus passes; group and private language tutoring for adults and children; access to trade schools and professional associations; subsidies for gasoline and diesel, home and auto insurance; and full access to Social Services and Welfare programs for the provision of any other special needs, especially for low income families. "Funding for all this is the least obstacle", the Court said, but nevertheless it ordered the Government to make this project one of the highest in its annual budgeting priorities, and to seek additional funds - if needed - from the EU and other international bodies plus foreign Governments which have already pledged millions for the restoration of peace in Cyprus and specifically in order to help with the plight of the Turkish Cypriots. The Supreme Court also ordered the Government to begin immediately the activation of programs to facilitate the quickest way for Turkish Cypriots to be registered as voters with full rights, as equals among equals just like every other citizen in the south, and at the same time to begin implementing full integration of Turkish Cypriots within the Police, the Armed Forces, all branches of civil service and positions of state employment, plus of course, to provide fair access to all positions that are slated to be filled through elections and through special appointments by the executive branch of Government. The Court expressed its concern that the Appellant (Ahmet Mulla Suleyman) must be re-assured that all his property rights, including the right to use, acesss and dispose of his property are intact and respected by the Republic, and that they must be protected by and re-affirmed through present and future actions of the Government. In particular, the Court awarded £3,680 (about $8,000) in compensation because parts of Suleyman's property had been used to build a road by the Govt, and awarded an additional £5,000 (about $11,000) in compensation for undue stress and erosion of confidence in the Government caused by its actions and omissions. The Supreme Court expressed its concern about the fact that the Appellant (Suleyman) now resides totally unprotected in areas which are nominally within the jurisdiction of the Republic, but where, due to the military occupation of the north, it is not possible for the Republic to enforce the rule of law or the Constitutional rights of its citizens, nor is there any other internationally recognised legal system in force in those areas. In order to ensure that Suleyman has protection of the law and support from a functional social and constitutional system in order to enjoy the access, usage and management of his properties, including the rights to buy, sell and transfer his properties in a climate where business transactions can take place free from undue or illegal influences, the Court ordered the Government to find quick and easily applicable ways to restore Suleyman's residency within the areas where the law of the land is enforced in accordance to local and international laws. The Court stated that the thousands of Turkish Cypriots displaced to the north must not be blamed or punished for living outside the reach of the Republic's ability to enforce the laws of EU and Cyprus, and must not be penalized for maintaining residency there. Residency status in the south must be restored quickly and easily, the Court ordered, and it designated a time limit of six months plus a day to be an initial maximum criterion: as soon as the Appellant (Suleyman) and any returning Turkish Cypriot has lived in the south for at least six months plus a day, they must de considered as having established fully and legally permanent residence in the south, with all rights restored as valid in the present time and also valid retroactively in continuity for all the preceding decades since displacement. In relation to the special body set up by the Government for interim management of Turkish Cypriot properties - the Guardian of Turkish Cypriot Properties - the Supreme Court ordered that it shall not have authority or jurisdiction over any dislpaced citizen's property from the moment that its owner has returned from the north, or at the very latest, within a period of at six months plus a day from the time of the owner's return to the homelands and resumption of legal residency in the south. The Court emphasized its awareness that this decision on this case will set legal precedents for multiple tens of thousands of similar cases and therefore has taken care to articulate its decisions so as to be applicable for any legally similar situations that might be heard before it in the future, as well as to be used as guidelines by the Executive branch of Government to administer the cases of returning Turkish Cypriots fairly, without necessitating a trial in Court for each case. The Supreme Court also stated that given the local, regional and international implications and complexities of this case, in formulating this decision it has taken into account the laws and Constitution of the Republic of Cyprus, EU legislation, and the United Nations Universal Declaration of Human Rights which is the foundation of international law, plus many other legally binding agreements to which the Republic is signatory such as the Geneva Convention, and others. In closing, the Supreme Court stated that this decision was made and articulated in this way in order to protect the rights of the Appellant (Ahmet Mulla Suleyman) and all returning Turkish Cypriot refugees, but also to protect the integrity and legality of the Republic of Cyprus, recognizing the danger that if this decision is reversed, or found by a higher body to be in deviation of EU or international law, then all of the citizens of the Republic, people of all ethnicities and residency status, will suffer unforseeable repercussions in the future. Well ....none of the above was ever reported in the media. Why? Because it never happened! On the contrary, what actually happened in Court was such a travesty of justice that it constitutes an injury not only to those who sought relief through the Court, but also to any intelligent and caring person. In truth, among other things the Supreme Court ruled the following: It
refused to provide refugee Ahmet Mulla Suleyman free access to
and usage to his property. Instead, it affirmed the authority of
Government's instrument known as the Guardian of Turkish Cypriot
Properties to continue the illegal seizure and usage of the refugee's
property any way it wants;
The Supreme Court refused to validate the claim of the refugee for compensation equal to £3,680 due to the fact (undisputed by the Court) that parts of Suleyman's property had been used by the Government to build a road. The shameful ruling by the Supreme Court against the Appellant's simple and dignified request added insult to the injuries sustained by all Turkish Cypriot refugees, whose interests are represented in this case through the person of Ahmet Mulla Suleyman. The Court violated every sense of justice when it reached its final decision on the case. The Supreme Court's decision stinks of racism, discrimination, prejudice, and bad politics. It's the same kind of "smarty pants" Cypriot diplomacy which is routinely exhibited internationally by self-serving socially unconscious authoritarian politicians and their medieval system of crass disrespect for human, legal, and constitutional rights. The only correct thing that the Court did in this case is that it affirmed once again that Suleyman remains the sole and undisputable owner of his property. Everything else is a shameful mess that will hurt all of us. Cyprus is going to carry that weight a long time. * * *
"You never give me your money
you only give me you funny paper And in the middle of negotiation you break down I never give you my number I only give you my situation And in the middle of investigation I break down... ...But oh, that magic feeling Nowhere to go Oh, that magic feeling nowhere to go nowhere to go..." "You Never Give Me Your Money" - the Beatles, 1969 Some of the Legal and Political arguments that came up in Court - Part 1 Constitutional issues The Appellant Ahmet Mulla Suleyman asserted through his lawyer, Mr. Christos Pourgourides, that the Government is preventing him from accessing and using his property in violation of Articles 28 and 6 of the Constitution, rendering him and other Turkish Cypriot refugees into second-class citizens. The relevant Articles of the Constitution state: Article 28 of the Constitution 1. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution. Article 6 of the Constitution Subject to the express provisions of this Constitution no law or decision of the House of Representatives or of any of the Communal Chambers, and no act or decision of any organ, authority or person in the Republic exercising executive power or administrative functions, shall discriminate against any of the two Communities or any person as a person or by virtue of being a member of a Community. Unbelievably, the Court rejected this claim! Judge Frixos Nicolaides of the Supreme Court had the "bright idea" to quote another section of the Constitution to justify the discriminatory decision. He claimed that Article 23.3 of the Constitution gives him and the Government the right to deny to the Turkish Cypriot refugees access access to their property. The relevant article: Article 23.3 of the Constitution Restrictions or limitations which are absolutely necessary in the interest of the public safety or the public health or the public morals or the town and country planning or the development and utilisation of any property to the promotion of the public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of such property: such compensation to be determined in case of disagreement by a civil court. Judge Nicolaides neglected to explain how this decision is in the interest "of the public safety". Or "for the protection of the rights of others". What "others"? Who is being protected by this racist decision that divides our people on the basis of priviledged access to their property and ability to exercise property rights? Certainly not the Greek Cypriot refugees! Nor the population that was not displaced. How is "public safety" threatened if Ahmet Mulla Suleyman gets to use his property? Who benefits from this decision? Judge Nicolaides thinks that he can just quote an Article from the Constitution - but has he no sense of morals or justice to explain his legal "thinking"? He feels safe knowing that the power of his office ensures that his decision will now become part of the Law, and having quoted some part of the Constitution - however irrelevant - he thinks, perhaps, that it "makes it sound good." But Mr. Judge, you have to explain how your quote is applicable to this case - morality, justice and political necessity make it imperative: How exactly is society benefiting from depriving or restricting Suleyman's access to and usage of his property? The particular Constitutional Article that was clumsily quoted by the Judge in fact guarantees the opposite of what the Judge decided - it ensures by the power of the Constitution the right to compensation for any such restrictions on property rights - which the Court denied, by relying on that Article! What kind of twisted perversion is this? Does it follow any logic or sense of Justice other than plain racist prejudice, the arrogance of unlimited power and unchallenged authority? Legal and Political arguments that came up in Court - Part 2 Location of Residence The Court case immediately attracted attention by political and legal observers because of a particular feature: all of it, the entire case pivots around one thing: the Appellant's location of residence. Several other cases which were almost identical to this case - except for the location or residence - have already been heard in Court and all of them were decided in favour of the returning Turkish Cypriot refugees. One such case that received a lot of political and legal attention was that of Turkish Cypriot refugee Arif Mustafa, who moved to the south of the island and reclaimed his property in the village of Episkopi. All the previous similar Court cases were decided in favour of the returning Turkish Cypriot refugee Claimant, Plaintiff, or Appellant. Suleyman's case differs only in this: Suleyman resides in an area of the north which is nominally and by all rights indisputably within the jurisdiction of the Court and within the domain of the Republic, but located where the State is not able to exercise its authority or enforce the law due to the invasion and occupation by a foreign military power. The Appellant, Suleyman, argued that the military occupation over his current location of residence is not relevant because recently there have been less restrictions in movement to and from the occupied areas. There is partial truth in this claim. The Court should have found a way to articulate its decision by embracing that partial truth in order to maximize the benefits of both the refugees and society at large. The judge could have easily said: "This issue has nothing to do with the Appellant's ethnicity, religion, faith or culture. The case is identical to others which were decided in favour of the returning refugee - except that in this case the refugee resides in an area where the Republic can not exercise its authority, exposing the Appellant and any other members of his family, his associates, or any people with whom he might do business, in conditions entirely outside of the rule of law. Not only the laws of the Republic of Cyprus but also the laws of the EU apply there, but are not enforced in the area of his residence. Nor is international law observed or enforced there. Additionally the Government of the country which operates the occupation army denies legal responsibility for enforcing the rule of law there - essentially, the Appellant resides in an area devoid of any valid government and law enforcement. This state of affairs makes normal business practices and the exercise of business-as-usual impossible, since anyone there is vulnerable at all times to the possibility of violence or the threat of violence, fraud, extortion, exploitation and other criminal activity without any recourse to a functional legal system. Normal buying and selling of properties, transfer of ownerhip, rentals and leasing are all meaningless in an area where the Appellant or his family are without any protection from criminals. This Court can only recognize the validity of property transactions when property rights can be exercised in a lawful climate. "But the Turkish Cypriot refugees must not be penalized for the actions of the invading and occupying army, and we must do everything possible to aid and protect returning refugees to find a safe climate in which they can reposess their properties and exercise their property rights in any way they please. Therefore I direct the Government to do everything possible to facilitate the safe relocation of the Appellant's place of residence to his homelands, in the areas where the Republic is able to exercise its authority. And I order the Government to release the property of the Appellant Mr. Suleyman immediately upon his return, or at the laterst upon completion of six months plus a day from the date of his return to these areas. If it is true, as Mr. Suleyman claims, that the occupation force's restrictions on movement are not a problem, then he will be able to maintain a comfortable and perfect continuity with his current occupation, employment, family and associates a few kilometers to the north while enjoying his property in the south." Instead, the Judge Frixos Nicolaides had the arrogance to link the Supreme Court's decision to a new "legal definition" of what is a Turkish Cypriot! He said: "The term Turkish Cypriot, as noted above, is used legally for Turkish Cypriots that do not have permanent residence in the controlled area of the Republic. The Appellant is one such person." Furthermore, the Judge went on to link his own concept of the movement restrictions - for which restrictions the refugee Suleyman is not responsible, since neither he nor the entire military and police force of the Republic have been able to lift those movement restrictions imposed by the occupation forces - to the Court's decision against the Appellant: “The Appellant claims that regardless of his residence, whether it be in the controlled areas of the Republic or in the occupied part of Cyprus, from the moment that there is freedom of movement he is entitled to take back and repossess his property." “...It would like to note that there isn’t a freedom of movement like the Appellant is claiming. There has just been a loosening up of the previous restriction. Regardless of that, the Turkish occupying forces continue to maintain their presence on the island.” The Judge has no jurisdiction to determine the status of the movement restrictions practiced on the military front lines, which are a complex military and bureaucratic procedural practice entirely outside the sphere of this case in Court. In fact, he also went on to say that "there is no freedom of movement as the Appellant claims. There is only a loosening of the previous total restriction of movement." He continued, "But even if it were so, as long as the state of abnormal conditions exists and before any announcement by the Cabinet of Ministers declaring that it is over, nothing changes. As before, a large part of the areas of the Republic continues to be under occupation and the state of abnormality continues. Any such ability to carry out visits has not eradicated the situation caused by the continued turkish occupation. The abnormal state of affairs will end only when the Cabinet decides that it has ended." In other words, only the Cabinet has the jurisdiction to decide if the abnormal state of affairs is over. But somehow this particular Judge has the jurisdiction to decide if the movement restrictions are still in force, and to ascertain the degree to which they are restrictive? And somehow the Judge has a right to give a "legal definition" of what is a Turkish Cypriot? And somehow, these findings then must be applied in the case of a man trying to get back the property he rightfully owns? Is it not institutionalized racism to link such a decision to the Appellant's ethnicity? The term "Turkish Cypriot" refers to ethnicity - no matter what Judge Frixos Nicolaides says in his "findings", there is no stretch of the imagination possible that can convince anyone that the term "Turkish Cypriot" means "place of residence". Also, the actions of the occupation regime are irrelevant to this case. The refugee Suleyman is not responsible in any way whatsoever for the abnormal state of affairs imposed on him and on all of us by the invasion and occupation. The act of linking the Supreme Court's decision against Suleyman to the criminal actions of the occupation forces is unjust and absurd - linking it in a way that applies to all Turkish Cypriots (identifying them by ethnicity) constitutes not only shameless racism, but also unjust collective punishment. Collective punishment is banned by the Geneva Convention ...and for good reasons. Even though the refugee has no responsibility for the actions of the occupation regime, the criminal activity of that regime is used by the Court to justify a decision against him. If the Supreme Court can get away with articulating its perception of "justice" in these terms, we have in our hands the beginning of an institutional orientation pregnant with the possibility of monstrous repercussions. Legal and Political arguments that came up in Court - Part 3 The law of necessity Judge Nicolaides attempted to justify the seizure of Suleyman's properties by referring to the legal concept known internationally as "The Law of Necessity". He said: "The Law of Necessity was applied in order to rescue the legality and need for functionality of a legal State. The Law (139/91) does not set arbitrary restrictions, but proceeds to the necessary, under the circumstances, temporary adjustments". It was a clumsy attempt, and useless; a shameless effort to disguise racist prejudice. For these reasons: 1. The Judge had already referred
to a
higher form of Law, the Constitution, and he attempted to justify the
seizure of Suleyman's lands according to Article 23.3. He failed to
show how that applies in this case, and also failed to abide by the
particular Article since it states that the person is entitled to compensation, which the
Judge refused to validate. What is the need to refer to a lesser law,
one on "temporary adjustments", if the Constitution already supposedly
gave the right to the Government? The answer is that the Constitutional
Article quoted by the Judge was not applicable and was misaplied - thus
the need to "boost" the decision's validity by referring to lesser laws.
2. The Judge failed to show (did not even attempt to show) how, in this particular case, would giving to this refugee access to his property would endanger the legality or functionality of the State. Just claiming it does not make it into fact, but it does enter it into law; the decision, and the unproven claims of the Judge are now a part of legal precedents, entered "on the books" for future use. How is this insane claim by a Supreme Court Judge allowed to pass without any criticism or even debate among us within the public diaologue of society at large? 3. All the other properties owned by Turkish Cypriot refugees that were seized were returned to their owners as soon as they returned to their homelands and made their residence in the south. "The Law of Necessity" was applied to protect them, the refugees, who were forced by the conditions of the war and social strife to flee and therefore become absentee owners. The Republic correctly seized those properties to ensure that they would not be used or expoited by others, and to use them to house other refugees, protecting thus the rights to ownership of the absentee Turkish Cypriot refugees - and by law this was set to be until their return, or until a legal and comprehensive settlement of the conflict. The application of "The Law of Necessity" was precisely to protect the absentee refugess and their property rights, not to protect the State. Various elements of "The Law of
Necessity" are actually very simple and
straightforward, and they have been embedded in Common Law in every
country of the world, practiced widely throughout antiquity - it is one
of the most basic and fundamental elements of social justice on which
entire legal systems have been erected: in a city that's destroyed by
earthquake or war, where there's no electricity, phones, or water,
roads are blocked and people barely surviving under rubble and a total
breakdown or absense of distribution, rescue, health or emergency
systems, "The Law of Necessity" dictates that it is rightful for a
person to open a shop where milk is stored in broken refrigerators and
use it to feed starving children. "The Law of Necessity" makes an
exception here (or a redefinition) on issues of theft, private
property, etc. in order to allow (and encourage) people to save lives.
It renders the technicalities of ownership of that particular bottle of
milk, or issues of tresspassing, into secondary issues. Essentially, it
is a legal protection for people (or for the State) to do the right
thing in abnormal conditions.
When a case comes to Court and the defence is based on "The Law of Necessity" it is required by every Court in the world that the Defence (in this case the Government) must show: 1) that the Government did not
intentionally bring about the circumstance which caused the unlawful
act; 2) that the Government could not accomplish the same objective
using a less offensive (i.e. "more legal") alternative available to the
Government; and 3) that the evil sought to be avoided was more heinous
than the unlawful act perpetrated to avoid it. Under "The Law of
Necessity", the Government must establish the existence of four
elements to be entitled to a necessity defense: 1) that it was faced
with a choice of evils and chose the lesser evil; 2) that it acted to
prevent imminent harm; 3) that it reasonably anticipated a causal
relation between its conduct and the harm to be avoided; and 4) that
there were no other legal alternatives to violating the law.
Neither the Judge nor the Defence (the Government) in this case explained or proved any of the above. What "heinous" threat to the legality or functionality of the State would ensue if Suleyman gained access to his properties while living in the north? None. The law was activated due to the very likely risk and harm that might be threatened or caused against himself - the absentee owner - or his family, and/or to the associates or clients with whom he might conduct any business transactions involving those properties in the south while his residence is under a lawless regime in the north. It is for his and their protection, not for the protection of the State, that the properties were seized for the duration of his absence. The only effective and just remedy to that is Suleyman's return to areas where the law is enforcable - all the rest are trickery, misrepresentation of the legal elements of the case, and political rhetoric disguised as a Court's "reasoning" to justify its decision against Suleyman. It is ridiculous and pompous - a sign of petty minds - to seek "high" justifications for the decision against the refugee Suleyman. The Court makes decision on cases like that every day. The case is as simple as affirming the fact that legislation exists making compulsory the use of automobile safety belts and motorcycle helmets. Regardless of whether we agree or disagree with those laws, we accept that they are based on a sound argument. The State undoubtedly restricts our civil and constitutional liberties by forcing us to use belts and helmets. The State says "it is unlawful" to operate cars and motorcycles without using safety belts and helmets. It says "Society invests a lot of labour, care and money in rescue operations and in life-saving medical care for people injured in accidents, and it has a right to demand a reduction of unecessary risk of injury and death. And, it might be true that a person has a right to take a life-threatening risk, but the loss of our citizens through preventable death and injury is too high for us to accept - if a person seeks a life-threating thrill or to risk death, there are many other ways available that do not involve driving." So we accept that. There is nothing wrong with applying the same logic and care for the safety and well-being of our compatriots in parallel situations. "It is unlawful to operate cars and motorcycles without using safety belts and helmets." There's nothing wrong with saying "it is unlawful to do business, to manage properties, buy, sell, transfer ownership, lease or rent properties unless one's location of residence is in area where the laws of the Republic, or the EU, or international law are duly, regularly and routinely enforced by legal authorities." There is nothing wrong with applying this logic and care for the safety and well-being of our compatriots so that any business transaction involving properties in Cyprus can be conducted in a lawful and legitimate social and business environment. But the Supreme Court's justifications as articulated by the Judge are a disgrace. A shame on all Cypriots. In his presentation, Judge Frixos Nicolaides committed grave moral, political and judicial errors and ommissions. He denied Suleyman's claim to his property without any justification other than blending racist and political propaganda, quoting the wrong Articles from the Constitution, claiming a "Law of Necessity" defensc for his decision without even a rudimentary account of how it applies in this case ....all a pernicious smokescreen to conceal the essence: an action that embeds within "legal language" a repulsive orientation toward validating a semi-official institutionalized Apartheid. Legal and Political arguments that came up in Court - Part 4 Human Rights In presenting their case to Court, the refugee Suleyman and his lawyer Mr. Christos Pourgourides asserted that the lower Court's decision against Suleyman violates the principle of equality for the Turkish Cypriots as it is expressed in the Constitution. The Judge denied this. But who can remain blind to the provocative and insulting approach taken by the Judge? In his own words, he linked the Supreme Court's decision against Suleyman to his Turkish Cypriot identity, and then went on to give a "new legal definition" of the concept "Turkish Cypriot" - for this case, Judge Frixos Nicolaides claims that "Turkish Cypriot" shall not mean ethnicity but "location of residence". {In Nazi Germany the legal definition of "Jew" did not mean ethnicity, it simply meant "person of polluted blood". Is there any Judge in the world today who is unaware of the dangers of legitimizing through the Courts laws that are based on ethnic identity through "clever" re-definitions?}. The Constitution strictly forbids discrimination of any sort on the basis of ethnicity - as the Constitution phrases it, "no act or decision of any organ, authority or person in the Republic exercising executive power or administrative functions, shall discriminate against any of the two Communities or any person as a person or by virtue of being a member of a Community." If this Court decision against
Suleyman
is not a violation of the principle of equality precisely on the basis
of ethnicity, then what is?
Suleyman and his lawyer Mr. Pourgourides also asserted that the lower Court's decision against Suleyman violates the Charter of Fundamental Rights of the European Union (a link to the full text of the Charter is provided below). The Supreme Court denied this claim as well. But how can we willingly remain deaf and dumb to such a gross violation? Article 17 of the EU Charted says clearly: "Right to property
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest." The Supreme Court's decision is a clear violation of the Charter. It stipulates that even if a law (or Court decision) is effected to limit any property rights, there must be "fair compensation being paid in good time for their loss". All this is "just the fine print" for the Judges of the Supreme Court in Cyprus. In addition to violations of the Constitution and the Charter of Fundamental Rights of the European Union, this decision by the Supreme Court violates the United Nations' Universal Declaration of Human Rights (a link to the full text of the Universal Declaration is provided below). On issues of property, the Declaration states clearly: Article 17.
(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. On issues of race and ethnicity, and "territorial status": Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. The above articles speak for themselves. If the Judge wants to play politics and fill his Court papers with slogans, propaganda and the rationalizations of the irrational, well, there are higher bodies of Justice founded in international law, both within the European Union and at the level of the United Nations, where individuals and entire communities collectively may take their case. Plus, history has repeatedly shown that when every legal recourse is spent, proven frutiless because of institutionalized injustice, people are forced to take matters into their own hands in order to actualize simple and direct Justice in their own way - is this what the Supreme Court wants, to push people in that direction? The worst element of all in the Supreme Court's decision against Suleyman, is its connection to the Geneva Convention. It would have been the simplest thing on earth for the Judge, when Suleyman's case came to the Supreme Court against the Government, to order the Government immediately to do everything within its power to facilitate the transition of the refugee's location of residence to his homelands and thereupon to provide access to the returning owner to all of his properties and to restore all his abiliities to exercice those property rights either immediately or - at the latest - at six months plus a day from the date of return (in order to establish continuity and permanence of residence). It is the only possible and dignified legal and social solution to this conundrum. It is also the only direct path to transforming the south part of Cyprus into a functional living model for the kind of solution we desire to see applied in the north. It is not too late to begin implementing in the south of Cyprus the large social and admimistrative changes that we hope will be implemented in the north someday to ensure both Peace and Justice for the hundreds of thousands of our refugees of both ethnicities. "But no(!)"....Supreme Court Judge Mr. Frixos Nicolaides, in a fit of grandiosity and warped sense of patriotism wanted to play "the Big Game" of international politics; perhaps imagining himself orating in front of the UN Security Council or on global television, he dragged the issues of war, occupation and regional conflict right into the Court case. Even if there's no shooting or violence right now on the island, the way that the Court's decision was articulated by relying on concepts and events intimately tied to the armed conflicts of 1974 and the mass displacement of non-combatant civilians, he brought all the trappings and accoutrements of the Geneva Convention right into the case. The Geneva Convention is the only international (and binding) agreement which specifically addresses the responsibilities of parties engaged in armed conflict, both toward each other and also toward prisoners, non-combatants, refugees, etc. Was it not him who blamed his decision against Suleyman on the "turkish occupation forces" (and condemning thus all the Turkish Cypriots under his "new legal definition"), thereby asserting that this Court case is intimately tied in with the war and armed conflict, requiring special judicial, administrative and legislative actions in order to be in harmony with the provisions of the Geneva Convention concerning displaced persons? The international agreement known as the "Geneva Convention" (in legal circles the specific document is known as the "Fourth Geneva Convention") makes clear provisions for the fate of people displaced in time of conflict: Article 49
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons do demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. Wherever refugees are concerned - all over the world - this particulare article 49, is the foundation of all modern liberation movements' claim to Justice based upon the refugees' "right of return". It applies to the people of Palestine; to displaced Hellene Cypriots; and to all refugee Turkish Cypriots - it is a Universally accepted value. The Geneva convention is binding on all parties involved in a conflict, regardless of who is right; it is about the responsibilities of all forces which are engaged in war, regardless whether they are recognized States, organizations or even signatories to the Convention. It does not matter at all that Cyprus did not invade, is not the Occupying Power, nor that it is actually the victim of an invasion: from the moment in the year 2003 that the invading and occupying military force has opened its gates to allow movement of the population through the front lines, thus making the return of refugees from the north possible, it has become the legal and moral responsibility of the Republic to facilitate the return of all its displaced citizens in a way that makes their return feasible, safe, viable, practicable and desirable. Within the areas that are under its control there is absolutely no obstacle to doing this. That is why - for all the other reasons enumerated above, plus the responsibilities of the Republic vis a vis the Geneva Convention and every conceivable humanitarian and political consideration - the Court's first and only remedy to the fair and just request by Suleyman should have been to immediately order the Government to do everything possible to facilitate the smooth and safe relocation of the refugee to his homelands. Any other "solution" is a clumsy and idiotic attempt to introduce racist and discriminatory language into legal decisions, and use it later as "legal precedent" to propel the country backwards toward a semi-official state of Apartheid. Political and Legal commentators - "Oh, you thought we were on our way to Socialism?" The three major parties of the ruling coalition which created the current Presidency, widely marketed to voters as a "Social Reform Movement" ("Allayi" in the hellenic {greek} language), have expressed themselves very clearly on this recent Supreme Court decision, both by words said and by words left unsaid. Akel, the "revolutionary socialist" Labour party, largest of the ruling coalition: In its official organ Haravghi,
the
party reported on the case in a short item of 239 words in three little
paragraphs signed by Antonis Antoniou. It was a dry summary of
the arguments used by the Court, published without any comment at all,
as if this Court decision is "business as usual".
Diko, the Democratic Party of the "progressive/ left/ center", second largest in the coalition, and also the party headed by President Papadopoulos: In an article by a prominent
Member of
Parliament, Andreas Angelides, signed with his party affiliation and
published in various daily newspapers of wide circulation, the MP took
as a starting point the case of Turkish Cypriot refugee Arif Mustafa, who moved to the south
of the island to reclaim his property in the village of Episkopi and
won his case in Court to do so. Angelides characterized this as the
begininng of a "visible danger that other Turkish Cypriots might follow
the same judicial procedure."
"In fact", he continued "in 2005 five more Turkish Cypriots brought two appeals to the Supreme Court by which they challenged by the same reasoning the refusals by the Guardian of Turkish Cypriot Properties to give them access to their properties. Fortunately, there was a new decision by another Supreme Court Judge by which he differentiated from the previous decision on the case of Mustafa by finding, correctly in my opinion, that in regards to the law on the Guardian there is no unequal treatment because of his consideration that 'the essence of law 139/91 resides precisely in the definition of 'Turkish Cypriot'...." He ended his article by painting the spirit of this Court decision as a decisive blow against the occupation of Cyprus, and supposedly as a way to reverse the gains of the occupation forces: "The new direction brought into effect by each Court decision, as the case in consideration, sets a precedent that supports the endurance, the courage, the resistance and mainly the pursuit of our inalienable and just rights. Let it be our target to overturn and abolish the abnormal situation due to the intransigence and arrogance of Turkey's ambitions and goals, for the sake of a european future for all the legal citizens of our European State." Thus spoke Andreas Angelides, Member of Parliament representing the Democratic Party. And the third partner in the ruling coalition, EDEK, the party of "Democratic Socialism": The party president, Yiannakis
Omirou
published an article entirely devoted to reviewing the Supreme Court
decision against Suleyman - this text was part of it:
"In contrast to what takes place in the occupied north, the Republic of Cyprus acting as a state founded on Justice and with an absolute dedication to International Legality and to the relevant International Treaties, has protected and continues to protect Turkish Cypriot properties in the free areas of Cyprus." In the rest of the article there is praise for the Court's approach and it presents the Court decision as a desicive counterbalance to the illegal seizures and economic exploitation of properties belonging to Hellene (Greek) Cypriot refugees from the north. All the rest of the legal and political observers and journalists who commented or reported on the case, all without exception took the same route: either a dry summary without comment presenting it as "normalcy", or a thunderous applause presenting it as a "victory" for defending the rights of Hellene Cypriots. There was not a single voice of dissent, no alternative view, no deviation, not even a single word that might be thought of as critical even to a minute degree throughout the entirety of materials published by the mainstream Press and Media on this case. There was even silence by the particularly smug and unctuous "smarter than everyone" commentators who often agree with the prejudices and biases of the establishment but who object to actualizing them because putting those ideologies into practice "makes Cyprus look bad internationally" - this was one time that they could have said something and they would be correct, it does illuminate Cyprus in the worst possible light. But they said nothing. Worst of all, even the "independent leftist" intellectuals, authors, activists and such, who claim to be outside of the influence of the Parliamentary parties of the Left and who see themselves as the only "real" vehicles of Socialist, Communist, Anarchist or progressive thought and sentiment ...silent. Most of them identify very strongly with the positions promoted by the daily newspaper named Politis, despite the fact that it is an openly unashamed organ of expression of a wing of the capitalist ruling class. They consider it as the champion of the antiracist, pro-Turkish-Cypriot voices in the south - since Politis was silent, then the "independent leftist" intellectuals perhaps feel ok to be silent too. Is there something wrong here with all of this? How is it that not a single voice was lifted up to say to the Judge, "Sir, this decision brings shame and sorrow to all of us; you are destroying our country and with it any sense of morality we have left - please reconsider and reverse your steps". Instead, there is total and complicitous silence. Is there a special form of blindness or deafness built into the structures of mainstream society in Cyprus when it comes to seeing or hearing the human, civil and Constitutional rights of Turkish Cypriots? Petros Evdokas, Cyprus IndyMedia volunteer June, 2007 On Signatures: http://english-cyprus.indymedia.org/mod/info/display/signatures/index.php ~~~~~~~~~~~~~ Further Readings and Sources Are they racists, just plain idiots, or both? http://english-cyprus.indymedia.org/newswire/display/39/index.php Charter of Fundamental Rights of the European Union http://www1.umn.edu/humanrts/instree/europeanunion2.html "This land is theirs–so give it back" (many thanks to SueS for rescuing this in our archives) http://archives.lists.indymedia.org/cyprus-english-open-publishing/2003-May/000263.html Universal Declaration of Human Rights http://www.un.org/Overview/rights.html Geneva Convention relative to the Protection of Civilian Persons in Time of War http://www.unhchr.ch/html/menu3/b/92.htm The law of necessity http://www.norml.org/index.cfm?Group_ID=3410 Judge rejects Turkish Cypriot’s request for return of property By John Leonidou http://www.cyprus-mail.com/news/main.php?id=32523&cat_id=1 Was this fair? By Fanos Droushiotis http://www.wikio.com/article=20152741 Greek Hypocrisy Par Excellence! Benjamin D, Brighton, UK http://www.topix.net/forum/world/cyprus/T2CQMH2VTNAE763KH Items in the hellenic/greek language: Το Ανώτατο απέρριψε προσφυγή Τ/κ http://www.haravgi.com.cy/22_05_2007/3/005.html Οι τουρκοκυπριακές περιουσίες ΤΟΥ ΑΝΔΡΕΑ ΑΓΓΕΛΙΔΗ http://www.simerini.com.cy/nqcontent.cfm?a_id=301862 Το δέον γενέσθαι για τις περιουσίες ΤΟΥ ΓΙΑΝΝΑΚΗ ΟΜΗΡΟΥ http://www.simerini.com.cy/nqcontent.cfm?a_id=302691 Τ/κ περιουσίες υπό περιορισμό Σημαντική απόφαση του Ανωτάτου Δικαστηρίου http://www.simerini.com.cy/nqcontent.cfm?a_id=300479 Το Ανώτατο Δικαστήριο απέρριψε προσφυγές Τουρκοκυπρίων Μπλοκάρισμα επιστροφής περιουσιών http://www.politis.com.cy/cgibin/hweb?-A=714268&-V=archivearticles ~~~~~~~~~~~~~~~~~~~ |