Removal of guardianship from T/C properties

THE Guardian of the Turkish Cypriot properties is the Minister of Interior who is responsible by law for their protection and management and has the power to remove his guardianship after a duly justified decision. An essential criterion is for the Turkish Cypriot applicant owner or his heirs or successors in title not to hold a property owned by a Greek Cypriot in the areas not controlled by the Republic. According to the relevant law, L.139/1991, article 3, the following factors are taken into consideration for the removal of the guardianship: (a) when the management of the property was undertaken by the Guardian, the Turkish Cypriot owner had his usual residence abroad where he had gone at the time before or after the Turkish invasion of 1974 and the said owner continues to live there or has returned or is returning from abroad for permanent residence in the areas controlled by the Republic or intends to do so, (b) when the management of the property was undertaken by the Guardian, the Turkish Cypriot owner settled permanently and continues to reside permanently in the areas controlled by the Republic, and (c) the property under management relates to a residence in which the Turkish Cypriot owner resided before the Turkish invasion of 1974 and in which he intends to settle permanently coming from the areas not controlled by the Republic.

A number of Turkish Cypriots are submitting applications to the Guardian requesting the removal of the guardianship from their property, mainly for the purpose of return or sale, as well as they apply to collect the compensation due for its use or its compulsory acquisition. The Guardian during the course of the examination of such an application, requires proof of their place of residence both before and after 1974 in order to establish whether they hold a property belonging to a Greek Cypriot in the areas not controlled by the Republic. If he finds through his investigation that they hold Greek Cypriot property, he dismisses their application. The dismissal of the application to remove the guardianship from a Turkish Cypriot property is an executory administrative act and can be challenged before the Administrative Court. However, the award of pecuniary compensation does not fall within the realm of public but of private law, subject to the jurisdiction of the civil courts.

The Administrative Court examined the matter in a relevant judgment issued where the Turkish Cypriot applicant sought to remove the guardianship from certain pieces of land that he acquired by inheritance from his father who died in the occupied areas. The applicant claimed that his parents did not fall within the definition of the term “Turkish Cypriot” in the law, since his mother died in 1970 and his father died before the law was passed without having his permanent residence in the occupied areas. His father lived abroad and he returned to Cyprus ill a few months before his death. It was accepted that the applicant had been residing in Germany since 1966 and that he had renounced the Cypriot citizenship. The property in question belonged to his mother and the administration of her estate was distinct from the administration of the estate of his father, that is how the property resulted to the applicant.

The Court decided that the administrative file showed that the applicant’s father had indeed died in the occupied areas and that he had resided in the Republic before 1974 and as a result of the events, he resided in the occupied areas. However, the Court considered that no proper investigation had been carried out regarding the property, which the applicant inherited from his mother and not from his father. Furthermore, it was not investigated at all before the issuance of the Guardian’s decision whether the Turkish Cypriot owner of the property held Greek Cypriot property in the areas not controlled by the Republic, as required by article 3 of the law in order to remove the guardianship from the property. Although it was asked by the appropriate authorities to conduct such an investigation, this was requested on the same day as the disputed decision and the Guarding did not wait the results of that investigation to evaluate them before issuing his decision. The Court, in view of the finding of lack of proper investigation, annulled the disputed decision of the Guardian.