Principio de indeterminación

The search for a fair balance is inherent in the whole of the Convention. In consideration of the rule under which an alleged violation falls, if neither the second sentence of the first paragraph nor the second sentence of the second paragraph of P1-1 have been complied with, and the said right is violated, this does not mean that the interference falls within the ambit of the first sentence of the first paragraph. In order to determine whether the first rule has been complied with, the Court applies a ‘fair balance’ test. The consideration of this balance is reflected in the structure of P1-1. According to this test, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.66

In the case of Sporrongand Lönnroth, the Court held that there had been a breach of the first rule of P1-1 due to the grant of the expropriation permits not having provided a fair balance between the public interest and private interest. The Court applies the fair balance test to all three rules when deciding under which the case might fall. Unlike Sporrong and Lönnroth, the Court in the Loizidou judgment did not apply the test after it held that the violation of property rights fell within the first rule of the P1-1. It only maintained that the Turkish government did not explain how the need to re-house displaced T/Cypriot refugees could justify the interference with the property rights of the applicant.67

In light of all the above consideration, it is evidently true that Loizidou and subsequent cases on property disputes in Cyprus have a unique feature: a complex historical and political development that cannot be separated from the situation of the applicants. The addressee individuals of these judgments are not only Cypriots but also citizens of third

66 _{Sporrong Lönnroth v. Sweden (1982) 5 EHRR 35, para. 69.} 67 _{Loizidou v. Turkey (1996) 23 EHRR 513, para. 64.}

countries who purchase properties from disputed lands. It is questionable whether considering such cases without extensive examination of all possibilities within the scope of P1-1 is feasible in terms of the Court’s case law.

At this point, it is important to clearly understand why the Court departed from its traditional approach concerning Eastern European cases in examining the case of Loizidou and subsequent property cases from Cyprus. Based on this, it is possible to suggest that the Court, perhaps, intended to refrain from becoming a political actor in this unique situation that is burdened with complex political issues. Bearing this in mind, it can be argued that the Court also refrained from considering the possibility of de facto expropriation because to act otherwise would result in these cases being classed as outside its jurisdiction.

Another significant aspect that needs to be pointed out is the fact that the Court, in Cypriot property cases, neither titled the act that constituted interference with G/Cypriot properties nor explained the type of interference in which the violation in question fell. In the matter of providing an effective remedy in order to deal with such interference, it is crucial to know on which grounds the public authorities have failed, thus giving rise to the violation of P1-1. In the case of violation, the nature of the remedy differs depending upon the nature of the failure.68

It is crucial to note that fourteen years after the decision of Loizidou, a major shift in the Court’s attitude occurred in the case of Demopoulos and Others v. Turkey. In this case, the Court adopted an entirely different approach from its previous Cyprus ruling. The facts in Loizidou, on which the Court did not consider it desirable to elaborate, turned into the grounds for its decision in the case of Demopoulos. It is questionable whether the reason for this gradual change in the Court’s approach towards its Cyprus rulings is the increased caseload of the Court, of cases that concern the same issues. In this respect, it should be noted that from 1959 to the end of September 1998 the Court delivered 837 judgments and adopted 190 decisions in total.69 At the time of the Demopoulos ruling,

68 _{Coban (n 4) p. 174.}

69 _{Council of Europe, ‘Activity Reports of European Court of Human Rights’} <http://www.echr.coe.int/ECHR/EN/Header/reports+and+Statistics/Reports/Annual+surveys+of+activity/ > accessed: 17 September 2013; Council of Europe, ‘Reform of the European Court of Human Rights’

there were 32 cases before the Court to decide. As of the date of the hearing in November 2009, the number of cases brought before the Immovable Property Commission (IPC), which was considered as a domestic remedy of the TRNC authorities, was 433.70 These numbers explain the change in the Court’s attitude during the fourteen-year timeline. This change in attitude can be considered as an attempt to secure the efficiency of the Court and the Convention system.

Bearing all this in mind, the Court’s decisions in its Cyprus rulings have had significant impact on the developments of the domestic remedies in the northern part of Cyprus and also have influenced the attitude of the parties to these cases. As a result, the fact that Cypriot property cases cannot be separated from complex political debates on the island has brought a new dimension to the Court’s cases with the passage of time. Political and legal developments within the fourteen-year timeline were not without consequences. All in all, not only the property regulations in Cyprus were affected by the case law of the Court, but the ECtHR also changed its position because of the effect of property claims from Cyprus. In order to comprehend the mutual interaction between the Court’s case law and the issue of property rights in Cyprus, it is necessary to consider the factors that introduce new dimensions within the Court’s and Cyprus’ case law.

4.6 The Interaction Between the ECtHR Case Law and the Issue of the Cyprus