Re: Oram judgment - Yahoo!

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Re: Oram judgment Tuesday, April 28, 2009 7:04 AM

From: "Steven Bourke" <[email protected]>
To: "Hans Van Houtte" <[email protected]>
Cc: "[email protected]" <[email protected]>, "[email protected]"
<[email protected]>

Dear Hans:

Do we have the original judgement regarding which the British Court of Appeal referred the questions about EC
Regulation No 44/2001?

And do we therefore know the extent to which the ECJ judgment will reverse the judgment of the British High
Court?

With best wishes and much appreciation, Steven.

2009/4/28 Hans Van Houtte <[email protected]>

Dear All,

Please find attached the ECJ decision in the Oram case. It is as I xepected but it does not make the task
easier...

Hans van Houtte

Institute for International Trade Law
Tiensestraat 41
3000 Leuven-Belgium
tel. : + 32 16 48 94 64
Fax : + 32 16 48 94 34
e-mail : [email protected]
Oram judgment - Yahoo! Mail Page 1 of 1

Oram judgment Tuesday, April 28, 2009 5:04 AM

From: "Hans Van Houtte" <[email protected]>
To: "Steven Bourke" <[email protected]>, "Hans Van Houtte"
<[email protected]>
Cc: "[email protected]" <[email protected]>, "[email protected]"
<[email protected]>
09.04.28 Apostolides v. Oram.doc (90KB)

Dear All,

Please find attached the ECJ decision in the Oram case. It is as I xepected but it does not make the task
easier...

Hans van Houtte

Institute for International Trade Law
Tiensestraat 41
3000 Leuven-Belgium
tel. : + 32 16 48 94 64
Fax : + 32 16 48 94 34
e-mail : [email protected]
09.04.28 Apostolides v. Oram.doc

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JUDGMENT OF THE COURT (Grand Chamber)

28 April 2009 (*)

(Reference for a preliminary ruling – Protocol No 10 on Cyprus – Suspension of the

application of the acquis communautaire in the areas falling outside the effective control
of the Cypriot Government – Regulation (EC) No 44/2001 – Jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters – Judgment
given by a Cypriot court sitting in the area effectively controlled by the Cypriot
Government and concerning immovable property situated outside that area – Articles
22(1), 34(1) and (2), 35(1) and 38(1) of that regulation)

In Case C-420/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Court of Appeal
(England and Wales) (Civil Division) (United Kingdom), made by decision of 28 June
2007, received at the Court on 13 September 2007, in the proceedings

Meletis Apostolides

David Charles Orams,

Linda Elizabeth Orams,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts,

M. Ilešiþ and A. Ó Caoimh, Presidents of Chambers, R. Silva de Lapuerta (Rapporteur),
J. Malenovský, J. Kluþka and U. Lõhmus, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 September
2008,

after considering the observations submitted on behalf of:

– Mr Apostolides, by T. Beazley QC and C. West, Barrister, instructed by

S. Congdon, Solicitor, and by C. Candounas, advocate,

– Mr and Mrs Orams, by C. Booth QC, N. Green QC, and A. Ward and B. Bhalla,
Barristers,

– the Cypriot Government, by P. Klerides, acting as Agent, D. Anderson QC and M.

Demetriou, Barrister,
09.04.28 Apostolides v. Oram.doc

– the Greek Government, by A. Samoni-Rantou, S. Khala and G. Karipsiadis, acting

as Agents,

– the Polish Government, by M. Dowgielewicz, acting as Agent,

– the Commission of the European Communities, by F. Hoffmeister and

A.-M. Rouchaud, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 December 2008,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation, first, of Protocol No
10 on Cyprus to the Act concerning the conditions of accession [to the European Union]
of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of
Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the
Republic of Poland, the Republic of Slovenia and the Slovak Republic and the
adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p.
955) (‘Protocol No 10’) and, second, certain aspects of Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

2 The reference was made in the course of proceedings between Mr Apostolides, a

Cypriot national, and Mr and Mrs Orams, a British married couple (‘the Orams’),
concerning the recognition and enforcement in the United Kingdom, under Regulation
No 44/2001, of two judgments given by the Eparkhiako Dikastirio tis Lefkosias (District
Court, Nicosia) (Cyprus).

Legal background

Community law

Protocol No 10

3 Protocol No 10 is worded as follows:

‘THE HIGH CONTRACTING PARTIES,

REAFFIRMING their commitment to a comprehensive settlement of the Cyprus problem,

consistent with relevant United Nations Security Council Resolutions, and their strong
support for the efforts of the United Nations Secretary General to that end,

CONSIDERING that such a comprehensive settlement to the Cyprus problem has not yet
been reached,

CONSIDERING that it is, therefore, necessary to provide for the suspension of the
application of the acquis in those areas of the Republic of Cyprus in which the
Government of the Republic of Cyprus does not exercise effective control,

CONSIDERING that, in the event of a solution to the Cyprus problem this suspension
shall be lifted,
09.04.28 Apostolides v. Oram.doc

CONSIDERING that the European Union is ready to accommodate the terms of such a
settlement in line with the principles on which the E[uropean] U[nion] is founded,

CONSIDERING that it is necessary to provide for the terms under which the relevant
provisions of E[uropean] U[nion] law will apply to the line between the abovementioned
areas and both those areas in which the Government of the Republic of Cyprus exercises
effective control and the Eastern Sovereign Base Area of the United Kingdom of Great
Britain and Northern Ireland,

DESIRING that the accession of Cyprus to the European Union shall benefit all Cypriot
citizens and promote civil peace and reconciliation,

CONSIDERING, therefore, that nothing in this Protocol shall preclude measures with this
end in view,

CONSIDERING that such measures shall not affect the application of the acquis under
the conditions set out in the Accession Treaty in any other part of the Republic of
Cyprus,

HAVE AGREED UPON THE FOLLOWING PROVISIONS:

Article 1

1. The application of the acquis shall be suspended in those areas of the Republic of
Cyprus in which the Government of the Republic of Cyprus does not exercise effective
control.

2. The Council, acting unanimously on the basis of a proposal from the Commission,
shall decide on the withdrawal of the suspension referred to in paragraph 1.

Article 2

1. The Council, acting unanimously on the basis of a proposal from the Commission,
shall define the terms under which the provisions of European Union law shall apply to
the line between those areas referred to in Article 1 and the areas in which the
Government of the Republic of Cyprus exercises effective control.

2. The boundary between the Eastern Sovereign Base Area and those areas referred
to in Article 1 shall be treated as part of the external borders of the Sovereign Base
Areas for the purpose of Part IV of the Annex to the Protocol on the Sovereign Base
Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus for the
duration of the suspension of the application of the acquis according to Article 1.

Article 3

1. Nothing in this Protocol shall preclude measures with a view to promoting the
economic development of the areas referred to in Article 1.

2. Such measures shall not affect the application of the acquis under the conditions
set out in the Accession Treaty in any other part of the Republic of Cyprus.

Article 4

In the event of a settlement, the Council, acting unanimously on the basis of a proposal
from the Commission, shall decide on the adaptations to the terms concerning the
accession of Cyprus to the European Union with regard to the Turkish Cypriot
Community.’
09.04.28 Apostolides v. Oram.doc

Regulation No 44/2001

4 Recitals 16 to 18 in the preamble to Regulation No 44/2001 state:

‘(16) Mutual trust in the administration of justice in the Community justifies judgments
given in a Member State being recognised automatically without the need for any
procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making
enforceable in one Member State a judgment given in another must be efficient
and rapid. To that end, the declaration that a judgment is enforceable should be
issued virtually automatically after purely formal checks of the documents
supplied, without there being any possibility for the court to raise of its own
motion any of the grounds for non-enforcement provided for by this Regulation.

(18) However, respect for the rights of the defence means that the defendant should be
able to appeal in an adversarial procedure, against the declaration of
enforceability, if he considers one of the grounds for non-enforcement to be
present. Redress procedures should also be available to the claimant where his
application for a declaration of enforceability has been rejected.’

5 Article 1(1) of Regulation No 44/2001 provides:

‘This Regulation shall apply in civil and commercial matters whatever the nature of the
court or tribunal. It shall not extend, in particular, to revenue, customs or administrative
matters.’

6 Under Article 2 of that regulation:

‘1. Subject to this Regulation, persons domiciled in a Member State shall, whatever
their nationality, be sued in the courts of that Member State.

2. Persons who are not nationals of the Member State in which they are domiciled
shall be governed by the rules of jurisdiction applicable to nationals of that State.’

7 Article 22(1) of Regulation No 44/2001, in Section 6, entitled ‘Exclusive jurisdiction’, of

Chapter II thereof, provides:

‘The following courts shall have exclusive jurisdiction, regardless of domicile:

1. in proceedings which have as their object rights in rem in immovable property or

tenancies of immovable property, the courts of the Member State in which the
property is situated.

However, in proceedings which have as their object tenancies of immovable

property concluded for temporary private use for a maximum period of six
consecutive months, the courts of the Member State in which the defendant is
domiciled shall also have jurisdiction, provided that the tenant is a natural person
and that the landlord and the tenant are domiciled in the same Member State’.

8 Article 34 of Regulation No 44/2001 states:

‘A judgment shall not be recognised:

1. if such recognition is manifestly contrary to public policy in the Member State in

which recognition is sought;
09.04.28 Apostolides v. Oram.doc

2. where it was given in default of appearance, if the defendant was not served with
the document which instituted the proceedings or with an equivalent document in
sufficient time and in such a way as to enable him to arrange for his defence,
unless the defendant failed to commence proceedings to challenge the judgment
when it was possible for him to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties

in the Member State in which recognition is sought;

4. if it is irreconcilable with an earlier judgment given in another Member State or in

a third State involving the same cause of action and between the same parties,
provided that the earlier judgment fulfils the conditions necessary for its
recognition in the Member State addressed.’

9 Article 35 of the regulation states:

‘1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6

of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing

paragraph, the court or authority applied to shall be bound by the findings of fact
on which the court of the Member State of origin based its jurisdiction.

3. Subject to … paragraph 1, the jurisdiction of the court of the Member State of

origin may not be reviewed. The test of public policy referred to in point 1 of
Article 34 may not be applied to the rules relating to jurisdiction.’

10 Article 38 of Regulation No 44/2001 provides:

‘1. A judgment given in a Member State and enforceable in that State shall be enforced
in another Member State when, on the application of any interested party, it has been
declared enforceable there.

2. However, in the United Kingdom, such a judgment shall be enforced in England and
Wales, in Scotland, or in Northern Ireland when, on the application of any interested
party, it has been registered for enforcement in that part of the United Kingdom.’

11 Article 45 of Regulation No 44/2001 provides:

‘1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or
revoke a declaration of enforceability only on one of the grounds specified in Articles 34
and 35. It shall give its decision without delay.

2. Under no circumstances may the foreign judgment be reviewed as to its substance.’

National law

12 According to national legislation, the real property rights relating to those areas of the
Republic of Cyprus in which the Government of that Member State does not exercise
effective control (‘the northern area’) subsist and remain valid in spite of the invasion of
Cypriot territory in 1974 by the Turkish army and the ensuing military occupation of
part of Cyprus.

13 Pursuant to Article 21(2) of Law 14/60 on the courts, in the version applicable to the
main proceedings, where an action concerns any matter relating to real property ‘that
09.04.28 Apostolides v. Oram.doc

action shall be brought before the Eparkhiako Dikastirio of the district in which such
property is situated’.

14 By order of the Anotato Dikastirio tis Kipriakis Dimokratias (Supreme Court of the
Republic of Cyprus) published on 13 September 1974 in the Episimi Efimerida tis
Kipriakis Dimokratias (Official Journal of the Republic of Cyprus), that is after the
invasion of the northern area, the territories of the districts of Kyrenia and Nicosia were
reorganised.

15 Under Cypriot legislation, the service of a document instituting proceedings on one

spouse by handing it to the other is good service. If the defendant does not enter an
appearance in the 10 days following service of the document instituting proceedings the
claimant may apply for a default judgment. Entering an appearance is an act which does
not require the defendant to set out the nature of any defence.

16 In proceedings to set aside a default judgment the claimant is required to establish that
he has an arguable defence.

The dispute in the main proceedings and the questions referred for a
preliminary ruling

17 The proceedings before the referring court concern the recognition and enforcement in
the United Kingdom, pursuant to Regulation No 44/2001, of two judgments of the
Eparkhiako Dikastirio tis Lefkosias (‘the judgments concerned’) on an action brought
against the Orams by Mr Apostolides concerning immovable property (‘the land’).

18 The land is situated at Lapithos, in the district of Kyrenia, which is in the northern area.
It belonged to Mr Apostolides’ family, which occupied it before the invasion of Cyprus by
the Turkish army in 1974. As members of the Greek Cypriot community, Mr Apostolides’
family was forced to abandon their house and take up residence in the area of the island
effectively controlled by the Cypriot Government (‘the Government-controlled area’).

19 The Orams claim to have purchased the land in 2002 in good faith from a third party,
the latter having himself acquired it from the authorities of the Turkish Republic of
Northern Cyprus, an entity which, to this day, has not been recognised by any State
except the Republic of Turkey. The successive acquisitions were in accordance with the
laws of that entity. The Orams built a villa and frequently occupy the property as their
holiday home.

20 The movement of persons between the northern area and the Government-controlled
area was restricted until April 2003.

21 On 26 October 2004, the Eparkhiako Dikastirio tis Lefkosias, a Cypriot court established
in the Government-controlled area, issued the documents instituting proceedings in the
action brought by Mr Apostolides against the Orams. On the same day, those
documents, one for each spouse, were served at the property on the land by a process
server from that court. The documents were both served by being handed in person to
Mrs Orams who refused to sign for them.

22 The process server did not inform Mrs Orams that he was a process server or of the
nature of the documents served by him, the documents being written in Greek, which
the Orams do not understand. However, Mrs Orams understood that those documents
were legal and official in nature.
09.04.28 Apostolides v. Oram.doc

23 On its face, written in Greek, each document stated that in order to prevent a default
judgment from being given it was necessary to enter an appearance before the
Eparkhiako Dikastirio tis Lefkosias within 10 days of service.

24 In spite of the difficulties encountered in finding in the northern area a Greek-speaking

lawyer licensed to appear before the courts of the Government-controlled area, Mrs
Orams managed to obtain the assistance of such a lawyer who agreed to enter an
appearance on her behalf on 8 November 2004. However, the lawyer did not enter an
appearance before that court on 8 November but only on the following day.

25 On 9 November 2004, as no one had entered an appearance for the Orams, the
Eparkhiako Dikastirio tis Lefkosias gave a default judgment on Mr Apostolides’ claim. On
the same day, the court refused the authority presented by Mrs Orams’ lawyer because
it was written in English and not in Greek or Turkish.

26 According to the order for reference, the default judgment of the Eparkhiako Dikastirio
tis Lefkosias orders the Orams to:

– demolish the villa, swimming pool and fencing which they had erected on the
land,

– deliver immediately to Mr Apostolides free possession of the land,

– pay to Mr Apostolides various sums by way of special damages and monthly

occupation charges (that is, rent) until the judgment was complied with, together
with interest,

– refrain from continuing with the unlawful intervention on the land, whether
personally or through their agents, and

– pay various sums in respect of the costs and expenses of the proceedings (with
interest on those sums).

27 On 15 November 2004, the Orams applied to have the judgment set aside. After
hearing evidence and arguments from the Orams and Mr Apostolides, the Eparkhiako
Dikastirio tis Lefkosias dismissed the Orams’ application by judgment of 19 April 2005
essentially on the ground that they had not put forward an arguable defence to dispute
Mr Apostolides’ title to the land. The Orams were ordered to pay the costs of the
application.

28 The Orams appealed against the judgment rejecting their application to set aside the
default judgment. The appeal was itself dismissed by judgment of the Anotato Dikastirio
tis Kipriakis Dimokartias of 21 December 2006.

29 On 18 October 2005, Mr Apostolides produced the documents required in England to

apply, pursuant to Regulation No 44/2001, for the recognition and enforcement of the
judgments concerned. By order of 21 October 2005, a Master of the High Court of
Justice (England and Wales), Queen’s Bench Division, ordered that the judgments be
enforceable in England pursuant to that regulation.

30 The Orams challenged that order under Article 43 of Regulation No 44/2001 and a High
Court judge set it aside by order of 6 September 2006. Mr Apostolides appealed against
that order before the referring court under Article 44 of that regulation.
09.04.28 Apostolides v. Oram.doc

31 In those circumstances, the Court of Appeal (England and Wales) (Civil Division)
decided to stay the proceedings and to refer the following questions to the Court of
Justice for a preliminary ruling:

‘1. …

Does the suspension of the application of the acquis communautaire in the northern
area by Article 1(1) of Protocol No 10 … preclude a Member State court from
recognising and enforcing a judgment given by a court of the Republic of Cyprus
sitting in the Government-controlled area relating to land in the northern area,
when such recognition and enforcement is sought under [Regulation No 44/2001],
which is part of the acquis communautaire?

2. Does Article 35(1) of Regulation No 44/2001 entitle or bind a Member State court
to refuse recognition and enforcement of a judgment given by the courts of
another Member State concerning land in an area of the latter Member State over
which the Government of that Member State does not exercise effective control?
In particular, does such a judgment conflict with Article 22 of Regulation No
44/2001?

3. Can a judgment of a Member State court, sitting in an area of that State over
which the Government of that State does exercise effective control, in respect of
land in that State in an area over which the Government of that State does not
exercise effective control, be denied recognition or enforcement under Article
34(1) of Regulation No 44/2001 on the grounds that as a practical matter the
judgment cannot be enforced where the land is situated, although the judgment is
enforceable in the Government-controlled area of the Member State?

4. Where

– a default judgment has been entered against a defendant;

– the defendant then commenced proceedings in the court of origin to

challenge the default judgment; but

– his application was unsuccessful following a full and fair hearing on the
ground that he had failed to show any arguable defence (which is necessary
under national law before such a judgment can be set aside),

can that defendant resist enforcement of the original default judgment or the
judgment on the application to set aside under Article 34(2) of Regulation No
44/2001, on the ground that he was not served with the document which
instituted the proceedings in sufficient time and in such a way as to enable him to
arrange for his defence prior to the entry of the original default judgment? Does it
make a difference if the hearing entailed only consideration of the defendant’s
defence to the claim?

5. In applying the test in Article 34(2) of Regulation No 44/2001 of whether the

defendant was “served with the document which instituted the proceedings or
with an equivalent document in sufficient time and in such a way as to enable him
to arrange for his defence” what factors are relevant to the assessment? In
particular:

(a) Where service in fact brought the document to the attention of the
defendant, is it relevant to consider the actions (or inactions) of the
defendant or his lawyers after service took place?
09.04.28 Apostolides v. Oram.doc

(b) What, if any, relevance would particular conduct of, or difficulties

experienced by, the defendant or his lawyers have?

(c) Is it relevant that the defendant’s lawyer could have entered an

appearance before judgment in default was entered?’

The questions referred for a preliminary ruling

The first question

32 By its first question, the referring court asks essentially whether the suspension of the
application of the acquis communautaire in the northern area, provided for by Article
1(1) of Protocol No 10, precludes the application of Regulation No 44/2001 to a
judgment which is given by a Cypriot court sitting in the Government-controlled area,
but concerns land situated in the northern area.

33 It must be observed at the outset that the Act of Accession of a new Member State is
based essentially on the general principle that the provisions of Community law apply ab
initio and in toto to that State, derogations being allowed only in so far as they are
expressly laid down by transitional provisions (see, to that effect, Case 258/81
Metallurgiki Halyps v Commission [1982] ECR 4261, paragraph 8).

34 In that regard, Protocol No 10 constitutes a transitional derogation from the principle

set out in the preceding paragraph, based on the exceptional situation prevailing in
Cyprus.

35 However, as the Advocate General observed, in point 35 of her Opinion, provisions in

an Act of Accession which permit exceptions to or derogations from rules laid down by
the EC Treaty must be interpreted restrictively with reference to the Treaty provisions in
question and must be limited to what is absolutely necessary in order to attain its
objective (see, by analogy, Case 231/78 Commission v United Kingdom [1979] ECR
1447, paragraph 13; Case 77/82 Peskeloglou [1983] ECR 1085, paragraph 12; Case
11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 26; Case
C-3/87 Agegate [1989] ECR 4459, paragraph 39, and Case C-233/97 KappAhl [1998]
ECR I-8069, paragraph 18).

36 In the case in the main proceedings, the derogation provided for by Protocol No 10
cannot be interpreted as meaning that it precludes the application of Regulation No
44/2001 to the judgments concerned given by the Cypriot court.

37 It follows from a literal interpretation of Article 1(1) of Protocol No 10 that the

suspension for which it provides is limited to the application of the acquis
communautaire in the northern area. However, in the case in the main proceedings, the
judgments concerned, the recognition of which is sought by Mr Apostolides, were given
by a court sitting in the Government-controlled area.

38 The fact that those judgments concern land situated in the northern area does not
preclude the interpretation referred to in the preceding paragraph since, first, it does
not nullify the obligation to apply Regulation No 44/2001 in the Government-controlled
area and, second, it does not mean that that regulation must thereby be applied in the
northern area (see, by analogy, Case C-281/02 Owusu [2005] ECR I-1383, paragraph
31).

39 In the light of the foregoing, the answer to the first question is that the suspension of
the application of the acquis communautaire in the northern area, provided for by Article
09.04.28 Apostolides v. Oram.doc

1(1) of Protocol No 10, does not preclude the application of Regulation No 44/2001 to a
judgment which is given by a Cypriot court sitting in the Government-controlled area,
but concerns land situated in the northern area.

The second to fifth questions

40 As regards the second to fifth questions, it must be stated that the Commission invokes
the possibility that the case does not fall within the material scope of Regulation No
44/2001. Such a conjecture thus makes it necessary to determine whether the case in
the main proceedings may be regarded as a ‘civil and commercial matter’ for the
purpose of Article 1 of that regulation.

41 In that connection, it is to be remembered that, in order to ensure, as far as possible,

that the rights and obligations which derive from Regulation No 44/2001 for the Member
States and the persons to whom it applies are equal and uniform, ‘civil and commercial
matters’ should not be interpreted as a mere reference to the internal law of one or
other of the States concerned. That concept must be regarded as an independent
concept to be interpreted by referring, first, to the objectives and scheme of the
regulation and, second, to the general principles which stem from the corpus of the
national legal systems (see Case 29/76 LTU [1976] ECR 1541, paragraph 3; Case
814/79 Rüffer [1980] ECR 3807, paragraph 7; Case C-172/91 Sonntag [1993] ECR I-
1963, paragraph 18; Case C-266/01 Préservatrice foncière TIARD [2003] ECR I-4867,
paragraph 20; Case C-343/04 ýEZ [2006] ECR I-4557, paragraph 22, and Case C-
292/05 Lechouritou and Others [2007] ECR I-1519, paragraph 29).

42 The autonomous interpretation of the concept of ‘civil and commercial matters’ results
in the exclusion of certain judicial decisions from the scope of Regulation No 44/2001,
by reason either of the legal relationships between the parties to the action or of the
subject-matter of the action (see LTU, paragraph 4; Rüffer, paragraph 14; Préservatrice
foncière TIARD, paragraph 21; ýEZ, paragraph 22, and Lechouritou and Others,
paragraph 30).

43 Thus, the Court has held that, although certain actions between a public authority and
a person governed by private law may come within the concept, it is otherwise where
the public authority is acting in the exercise of its public powers (see LTU, paragraph 4;
Rüffer, paragraph 8; Sonntag, paragraph 20; Préservatrice foncière TIARD, paragraph
22; and Lechouritou and Others, paragraph 31).

44 The exercise of public powers by one of the parties to the case, because it exercises
powers falling outside the scope of the ordinary legal rules applicable to relationships
between private individuals, excludes such a case from civil and commercial matters
within the meaning of Article 1(1) of Regulation No 44/2001 (see, to that effect, LTU,
paragraph 4; Rüffer, paragraphs 9 and 16; Sonntag, paragraph 22; Préservatrice
foncière TIARD, paragraph 30; and Lechouritou and Others, paragraph 34).

45 In the case in the main proceedings, the action is between individuals, and its object is
to obtain damages for unlawfully taking possession of land, the delivery up of that land,
its restoration to its original state and the cessation of any other unlawful intervention.
That action is brought not against conduct or procedures which involve an exercise of
public powers by one of the parties to the case, but against acts carried out by
individuals.

46 Consequently, the case at issue in the main proceedings must be regarded as

concerning ‘civil and commercial matters’ within the meaning of Article 1(1) of
Regulation No 44/2001.

The second question

09.04.28 Apostolides v. Oram.doc

47 By its second question, the referring court asks essentially whether the fact that a
judgment is given by a court of a Member State, concerning land situated in an area of
that State over which the Government of that State does not exercise effective control,
may be regarded as an infringement of the rule of jurisdiction laid down in Article 22(1)
of Regulation No 44/2001 and, therefore, justify a refusal to recognise or enforce such a
judgment in accordance with Article 35(1) of that regulation.

48 In that connection, it must be held that Article 22 of Regulation No 44/2001 contains a

mandatory and exhaustive list of the grounds of exclusive international jurisdiction of
the Member States. That article merely designates the Member State whose courts have
jurisdiction ratione materiæ, but does not allocate jurisdiction within the Member State
concerned. It is for each Member State to determine the organisation of its own courts.

49 Furthermore, the principle prohibiting the review of the jurisdiction of the court of the
Member State of origin, laid down in Article 35(3) of Regulation No 44/2001 – such
review being permitted only in relation to the provisions of Article 35(1) –, prevents a
review of the domestic jurisdiction of the court of the Member State of origin concerned
being conducted in the case in the main proceedings.

50 Therefore, the forum rei sitæ rule provided for in Article 22(1) of Regulation
No 44/2001 concerns the international jurisdiction of the courts of the Member States
and not their domestic jurisdiction.

51 In the case in the main proceedings, it is common ground that the land is situated in
the territory of the Republic of Cyprus and that, therefore, the rule of jurisdiction laid
down in Article 22(1) of Regulation No 44/2001 has been observed. The fact that the
land is situated in the northern area may possibly have an effect on the domestic
jurisdiction of the Cypriot courts, but cannot have any effect for the purposes of that
regulation.

52 In the light of the foregoing, the answer to the second question is that Article 35(1) of
Regulation No 44/2001 does not authorise the court of a Member State to refuse
recognition or enforcement of a judgment given by the courts of another Member State
concerning land situated in an area of the latter State over which its Government does
not exercise effective control.

The third question

53 By its third question, the referring court asks essentially whether the fact that a
judgment given by the courts of a Member State, concerning land situated in an area of
that State over which its Government does not exercise effective control, cannot, as a
practical matter, be enforced where the land is situated constitutes a ground for refusal
of recognition or enforcement under Article 34(1) of Regulation No 44/2001.

– Article 34(1) of Regulation No 44/2001

54 According to Article 34(1) of Regulation No 44/2001, a judgment is not to be

recognised if such recognition is manifestly contrary to public policy in the Member State
in which recognition is sought. Article 45(1) of that regulation provides for the refusal of
an enforcement order in the same circumstances.

55 As a preliminary point, it should be recalled that Article 34 of Regulation No 44/2001

must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of
one of the fundamental objectives of that regulation (see Case C-414/92 Solo
Kleinmotoren [1994] ECR I-2237, paragraph 20; Case C-7/98 Krombach [2000] ECR I-
1935, paragraph 21, and Case C-38/98 Renault [2000] ECR I-2973, paragraph 26).
09.04.28 Apostolides v. Oram.doc

With regard, more specifically, to the public-policy clause in Article 34(1) of the
regulation, it may be relied on only in exceptional cases (see Case 145/86 Hoffmann
[1988] ECR 645, paragraph 21; Case C-78/95 Hendrikman and Feyen [1996] ECR I-
4943, paragraph 23; Krombach, paragraph 21, and Renault, paragraph 26).

56 While the Member States remain in principle free, by virtue of the proviso in Article
34(1) of Regulation No 44/2001, to determine, according to their own conceptions, what
public policy requires, the limits of that concept are a matter of interpretation of that
regulation (see Krombach, paragraph 22, and Renault, paragraph 27).

57 Consequently, while it is not for the Court to define the content of the public policy of a
Member State, it is none the less required to review the limits within which the courts of
a Member State may have recourse to that concept for the purpose of refusing
recognition to a judgment emanating from another Member State (Krombach,
paragraph 23, and Renault, paragraph 28).

58 In that connection, it must be observed that, by disallowing any review of a foreign

judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit
the court of the State in which enforcement is sought from refusing to recognise or
enforce that judgment solely on the ground that there is a discrepancy between the
legal rule applied by the court of the State of origin and that which would have been
applied by the court of the State in which enforcement is sought had it been seised of
the dispute. Similarly, the court of the State in which enforcement is sought cannot
review the accuracy of the findings of law or fact made by the court of the State of
origin (Krombach, paragraph 36, and Renault, paragraph 29).

59 Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be

envisaged only where recognition or enforcement of the judgment given in another
Member State would be at variance to an unacceptable degree with the legal order of
the State in which enforcement is sought inasmuch as it would infringe a fundamental
principle. In order for the prohibition of any review of the foreign judgment as to its
substance to be observed, the infringement would have to constitute a manifest breach
of a rule of law regarded as essential in the legal order of the State in which
enforcement is sought or of a right recognised as being fundamental within that legal
order (see Krombach, paragraph 37, and Renault, paragraph 30).

60 In that connection, the court of the State in which enforcement is sought cannot,
without undermining the aim of Regulation No 44/2001, refuse recognition of a
judgment emanating from another Member State solely on the ground that it considers
that national or Community law was misapplied in that judgment. On the contrary, it
must be considered that, in such cases, the system of legal remedies in each Member
State, together with the preliminary ruling procedure provided for in Article 234 EC,
affords a sufficient guarantee to individuals (see Renault, paragraph 33). The public-
policy clause would apply in such cases only where that error of law means that the
recognition or enforcement of the judgment in the State in which enforcement is sought
would be regarded as a manifest breach of an essential rule of law in the legal order of
that Member State (see, to that effect, Renault, paragraph 34).

61 In the case in the main proceedings, as Mr Apostolides and the Cypriot and Greek
Governments have observed, the referring court has not referred to any fundamental
principle within the legal order of the United Kingdom which the recognition or
enforcement of the judgments in question would be liable to infringe.

62 Accordingly, in the absence of a fundamental principle in the legal order of the United
Kingdom which the recognition or enforcement of the judgments concerned would be
liable to infringe, no refusal to recognise them, under Article 34(1) of Regulation No
44/2001, would be justified on the ground that a judgment given by the courts of a
09.04.28 Apostolides v. Oram.doc

Member State, concerning land situated in an area of that State over which its
Government does not exercise effective control, cannot, as a practical matter, be
enforced where the land is situated. Similarly, there can be no refusal of enforcement on
the basis of that provision, in accordance with Article 45(1) of that regulation.

– Article 38(1) of Regulation No 44/2001

63 Notwithstanding the foregoing considerations, it should be recalled that the Court has
consistently held that, in the application of Article 234 EC, it may extract from the
wording of the questions formulated by the national court, and having regard to the
facts stated by the latter, those elements which concern the interpretation of
Community law, for the purpose of enabling that court to resolve the legal problems
before it (see Joined Cases C-330/90 and C-331/90 López Brea and Hidalgo Palacios
[1992] ECR I-323, paragraph 5; Case C-224/01 Köbler [2003] ECR I-10239, paragraph
60; and Case C-346/05 Chateignier [2006] ECR I-10951, paragraph 18).

64 In the case in the main proceedings, although the fact that the judgments concerned
cannot be enforced in the Member State of origin cannot justify the refusal to recognise
or enforce those judgments, under Article 34(1) of Regulation No 44/2001, it remains
the case that such a fact could be relevant for the purposes of Article 38(1) of that
regulation.

65 Under the latter provision, a judgment given in a Member State and enforceable in that
State is to be enforced in another Member State when, on the application of any
interested party, it has been declared enforceable there.

66 Accordingly, the enforceability of the judgment in the Member State of origin is a

precondition for its enforcement in the State in which enforcement is sought (see Case
C-267/97 Coursier [1999] ECR I-2543, paragraph 23). In that connection, although
recognition must have the effect, in principle, of conferring on judgments the authority
and effectiveness accorded to them in the Member State in which they were given (see
Hoffmann, paragraphs 10 and 11), there is however no reason for granting to a
judgment, when it is enforced, rights which it does not have in the Member State of
origin (see the Jenard Report on the Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (OJ 1979 C 59, p. 48) or effects that a
similar judgment given directly in the Member State in which enforcement is sought
would not have.

67 However, in the case in the main proceedings, it cannot be reasonably argued that the
judgments concerned are totally unenforceable in the Member State of origin.

68 These are judgments imposing obligations, in respect of which the certificate provided
for in Article 54 of Regulation No 44/2001 declares the enforceability in the Member
State of origin at the date on which the certificate was issued.

69 In that connection, it must be observed that Regulation No 44/2001 merely regulates

the procedure for obtaining an order for the enforcement of foreign enforceable
instruments and does not deal with execution itself, which continues to be governed by
the domestic law of the court in which enforcement is sought (see Case 148/84
Deutsche Genossenschaftsbank [1985] ECR 1981, paragraph 18; Case 119/84 Capelloni
and Aquilini [1985] ECR 3147, paragraph 16, and Hoffmann, paragraph 27), unless, for
the purposes of the enforcement of a judgment, the application of the procedural rules
of the Member State in which enforcement is sought may impair the effectiveness of the
scheme laid down by the regulation as regards enforcement orders, by frustrating the
principles laid down in that regard, whether expressly or by implication, by the
regulation itself (see, to that effect, Capelloni and Aquilini, paragraph 21; Hoffmann,
paragraph 29, and Case C-365/88 Hagen [1990] ECR I-1845, paragraph 20).
09.04.28 Apostolides v. Oram.doc

70 The fact that claimants might encounter difficulties in having judgments enforced in the
northern area cannot deprive them of their enforceability and, therefore, does not
prevent the courts of the Member State in which enforcement is sought from declaring
such judgments enforceable.

71 In the light of the foregoing, the answer to the third question is that the fact that a
judgment given by the courts of a Member State, concerning land situated in an area of
that State over which its Government does not exercise effective control, cannot, as a
practical matter, be enforced where the land is situated does not constitute a ground for
refusal of recognition or enforcement under Article 34(1) of Regulation No 44/2001 and
it does not mean that such a judgment is unenforceable for the purposes of Article
38(1) of that regulation.

The fourth question

72 By its fourth question, the referring court asks essentially whether the recognition or
enforcement of a default judgment may be refused under Article 34(2) of Regulation No
44/2001 by reason of the fact that the defendant was not served with the document
instituting the proceedings or with an equivalent document in sufficient time and in such
a way as to enable him to arrange for his defence, where he was able to commence
proceedings to challenge that judgment before the courts of the Member State of origin.

73 In that connection, it is apparent from recitals 16 to 18 in the preamble to Regulation

No 44/2001 that the system of appeals for which it provides against the recognition or
enforcement of a judgment aims to establish a fair balance between, on the one hand,
mutual trust in the administration of justice in the Union, which justifies judgments
given in a Member State being, as a rule, recognised and declared enforceable
automatically in another Member State and, on the other hand, respect for the rights of
the defence, which means that the defendant should, where necessary, be able to
appeal in an adversarial procedure against the declaration of enforceability if he
considers one of the grounds for non-enforcement to be present.

74 The Court has had occasion, in Case C-283/05 ASML [2006] ECR I-12041, to make
clear the differences between Article 34(2) of Regulation No 44/2001 and Article 27(2)
of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36).

75 Article 34(2) of Regulation No 44/2001, unlike Article 27(2) of the Convention, does not
necessarily require the document which instituted the proceedings to be duly served,
but does require that the rights of the defence are effectively respected (ASML,
paragraph 20).

76 Under Articles 34(2) and 45(1) of Regulation No 44/2001, the recognition or

enforcement of a default judgment must be refused, if there is an appeal, if the
defendant was not served with the document which instituted the proceedings or with
an equivalent document in sufficient time and in such a way as to enable him to arrange
for his defence, unless the defendant failed to commence proceedings to challenge that
judgment before the courts of the Member State of origin when it was possible for him
to do so.

77 It is clear from the wording of those provisions that a default judgment given on the
basis of a document instituting proceedings which was not served on the defendant in
sufficient time and in such a way as to enable him to arrange for his defence must be
recognised if he did not take the initiative to appeal against that judgment when it was
possible for him to do so.
09.04.28 Apostolides v. Oram.doc

78 A fortiori, the rights of the defence that the Community legislature wished to safeguard
by Article 34(2) of Regulation No 44/2001 are respected where the defendant did in fact
commence proceedings to challenge the default judgment and those proceedings
enabled him to argue that he had not been served with the document which instituted
the proceedings or with the equivalent document in sufficient time and in such a way as
to enable him to arrange for his defence.

79 In the case in the main proceedings, it is common ground that the Orams commenced
such proceedings in the Member State of origin to challenge the default judgment given
on 9 November 2004. Consequently, Article 34(2) of Regulation No 44/2001 cannot
legitimately be relied upon.

80 In the light of the foregoing, the answer to the fourth question is that the recognition or
enforcement of a default judgment cannot be refused under Article 34(2) of Regulation
No 44/2001 where the defendant was able to commence proceedings to challenge the
default judgment and those proceedings enabled him to argue that he had not been
served with the document which instituted the proceedings or with the equivalent
document in sufficient time and in such a way as to enable him to arrange for his
defence.

The fifth question

81 Given the answer to the fourth question, there is no need to answer the fifth question.

Costs

82 Since these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for that court.
Costs incurred in submitting observations to the Court, other than the costs of those
parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1. The suspension of the application of the acquis communautaire in those

areas of the Republic of Cyprus in which the Government of that Member
State does not exercise effective control, provided for by Article 1(1) of
Protocol No 10 on Cyprus to the Act concerning the conditions of
accession [to the European Union] of the Czech Republic, the Republic of
Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of
Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the Slovak Republic and the
adjustments to the Treaties on which the European Union is founded,
does not preclude the application of Council Regulation (EC) No 44/2001
of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters to a judgment
which is given by a Cypriot court sitting in the area of the island
effectively controlled by the Cypriot Government, but concerns land
situated in areas not so controlled.

2. Article 35(1) of Regulation No 44/2001 does not authorise the court of a

Member State to refuse recognition or enforcement of a judgment given
by the courts of another Member State concerning land situated in an
area of the latter State over which its Government does not exercise
effective control.
09.04.28 Apostolides v. Oram.doc

3. The fact that a judgment given by the courts of a Member State,

concerning land situated in an area of that State over which its
Government does not exercise effective control, cannot, as a practical
matter, be enforced where the land is situated does not constitute a
ground for refusal of recognition or enforcement under Article 34(1) of
Regulation No 44/2001 and it does not mean that such a judgment is
unenforceable for the purposes of Article 38(1) of that regulation.

4. The recognition or enforcement of a default judgment cannot be refused

under Article 34(2) of Regulation No 44/2001 where the defendant was
able to commence proceedings to challenge the default judgment and
those proceedings enabled him to argue that he had not been served with
the document which instituted the proceedings or with the equivalent
document in sufficient time and in such a way as to enable him to
arrange for his defence.

[Signatures]

* Language of the case: English.

Fw: Re: 1 May dinner - Yahoo! Mail Page 1 of 2

Fw: Re: 1 May dinner Tuesday, April 21, 2009 12:57 PM

From: "Tatyana V." <[email protected]>
To: "Sonja Bachmann" <[email protected]>

this is the email to AD

--- On Tue, 4/21/09, Tatyana V. <[email protected]> wrote:

> From: Tatyana V. <[email protected]>

> Subject: Fw: Re: 1 May dinner
> To: "Alexander Downer" <[email protected]>
> Date: Tuesday, April 21, 2009, 10:26 AM
> Dear A:
>
> please see below the confirmation of your dinner with Mr De
> Soto on 1 May, the venue and other details will be arranged
> at a later stage,
>
> cheers
>
> T.
>
> --- On Mon, 4/20/09, [email protected]
> <[email protected]> wrote:
>
> > From: [email protected] <[email protected]>
> > Subject: Re: 1 May dinner
> > To: [email protected]
> > Date: Monday, April 20, 2009, 6:22 PM
> > Indeed, I can now confirm dinner on 1 May. I look
> forward to
> > it. I personally would prefer a bit later -- say about
> 8 --
> > if that's at all possible. Thank you
> > Sent via BlackBerry by AT&T
>>
> > -----Original Message-----
> > From: "Tatyana V."
> <[email protected]>
>>
> > Date: Mon, 20 Apr 2009 16:08:27
> > To: <[email protected]>
> > Subject: Fw: 1 May dinner
>>
>>
>>
>>
> > Dear Mr de Soto,
>>
Fw: Re: 1 May dinner - Yahoo! Mail Page 2 of 2

> > just to follow up on the suggested dinner,

>>
> > IS it still on, the 1 May dinner with AD? If yes, what
> time
> > would you prefer, smth around 19h00?
>>
> > Please let us know,
>>
>>
> > all the best from all of us!
> > sincerely,
> > Tatyana
>>
> > --- On Fri, 4/3/09, Laura Vaccari
> > <[email protected]> wrote:
>>
> > > From: Laura Vaccari
> <[email protected]>
> > > Subject:
> > > To: "alvaro de soto"
> > <[email protected]>
> > > Cc: "tatyana tatyana"
> > <[email protected]>
> > > Date: Friday, April 3, 2009, 10:58 AM
> > > Dear Mr. de Soto,
>>>
> > > Alexande Downer will be in the city at the end of
> the
> > month
> > > and would like to meet you (for drinks or dinner)
> on
> > 29-30
> > > Aril or 1st of May if at all possible.
>>>
> > > Best wishes,
>>>
> > > laura
RE: Notes - Yahoo! Mail Page 1 of 1

RE: Notes Monday, April 13, 2009 12:27 PM

From: "Laura Vaccari" <[email protected]>
To: [email protected], "Sonja Bachmann" <[email protected]>,
[email protected], [email protected]
Cc: "tatyana tatyana" <[email protected]>

Dear Yasser,

It would be rather urgent to know whether the proposed agenda would be agreeable to all
concerned at your end.
Should there be no time b/c of other meetings, items 2, 3 and 4 could be dealt with
separately as discussed between TBZ and ES last Thursday, 9 April.
It also looks like that [very tentatively] the (only) possible time to brief the SC in informal
would be in the morning of 30 April - but all this is to TBC.

With many thanks and best regards,

Laura

From: [email protected]
To: [email protected]; [email protected];
[email protected]; [email protected]
Subject: RE: Notes
Date: Fri, 27 Mar 2009 13:19:17 -0400

Dear Yasser,

As discussed this morning with Elizabeth, I am sending a first draft from our side of the
agenda for the brainstorming at the end of April. This will obviously need to be discussed at
your end with AD and TBZ and amended accordingly, as well as fleshed out a little before we
meet.

Will you be able to come to NY for this meeting? Elizabeth also suggested this morning that
it would be useful for Jose Diaz to come, since there will be a discussion on the media. She
will discuss this with Taye on Monday.

Elizabeth also requested that we send any attachments concerning this issue through our
private e-mail accounts to avoid possible leakage.

Many thanks!
Kendra

Quick access to Windows Live and your favorite MSN content with Internet Explorer 8.
[ No Subject ] - Yahoo! Mail Page 1 of 1

[ No Subject ] Tuesday, July 22, 2008 12:31 AM

From: "Sonja Bachmann" <[email protected]>
To: [email protected]
Cc: [email protected]
Note to Mr Pascoe on Bhutto Commission.doc (26KB)
Note to Mr Pascoe on Bhutto Commission.doc

Note to Mr. Pascoe

UPDATE ON THE BHUTTO COMMISSION

1. Following the meeting of the Secretary-General with the Pakistani Foreign Minister,
OLA, EOSG and DPA have met to discuss the way forward: The Secretary-General
has pointed out the need for further discussion with regard to structure and modalities
of the proposed international Commission as well as the need to consult with members
of the Security Council.

2. Please find attached a check-list of procedural items which need to be addressed

concurrently with engaging the Pakistani interlocutors. As previously mentioned there
is desirability that the Commission would produce ‘value added’ to the work already
carried out by Scotland Yard, which was limited to a mainly forensic inquiry. Given
the current fluid domestic situation in Pakistan, a thorough press and information
strategy in addition to adequate security planning will be key. As to the future seat of
the body, other important variables include issues such as easy access to interlocutors,
an already existing UN platform as well as security implications to the rest of the UN
system in locus. In this respect, an exploratory mission with the objective to carry out
a substantive assessment, is strongly advisable. Up to now, the Pakistani interlocutors
have not voiced themselves favourably on this crucial issue.

3. We should be grateful to receive guidance as to identification of the lead department

in terms of supporting this Commission, taking into account human resource
implications, as well as the lead department and level of engagement of Security
Council members.

Best regards.
Note to Mr Pascoe on Bhutto Commission.doc

CHECKLIST

a) Security Council consultations

It is recommended to see all 15 members of the Council individually in order not to give a
perception of ‘different treatment’. Transparency and a principled approach by the Secretariat
from the beginning is deemed key, especially given the domestic political environment in
Pakistan and potential manipulation of the Commission by different stakeholders for their
own political ends. As previously advised, an exchange of letters with attached ToRs of the
Commission, might be the most viable option and needs to be discussed with the Pakistani
interlocutors. OLA advises that the language of response by the President of the Security
Council should ideally go beyond the ‘taking note of the Secretary-General’s decision to set
up an International Commission’ and mention ‘encourages the Secretary-General to accede to
the request’.

b) ToRs of the Commission

OLA is finalizing a paper with elements and ToRs of the Commission. Those would include a
broad notion of determining the circumstances of the killing, allocating responsibilities,
(although not criminal), which could include the Government, armed forces and individuals,
the composition of the Commission, an obligation to cooperate and not interfere with access,
immunity of personnel as well as security and reporting provisions. The Commission should
have the powers to request ‘third states’ to cooperate.

c) Composition
Whereas Pakistan’s focus clearly lies on ‘eminent political leaders’, the United Nations needs
to make sure that an appropriate mix of nationalities and backgrounds is looked into to ensure
credibility. Dependant on the nature and function of the body to be established, it will be up to
the Secretary-General to appoint the eminent personalities.

d) Funding/Trust fund – discussion with the Controller

Pakistan offered to shoulder at least half of the necessary funding. The formula adopted at the
IIIC was that Lebanon paid 49 % of the total funds. The Controller needs a mandate from the
legislative bodies to be able to authorize the establishment of a Trust Fund. According to
OLA, the Commission would be operational only within 6 – 9 months.
RE: Sonja's email and contacts - Yahoo! Mail Page 1 of 1

RE: Sonja's email and contacts Wednesday, October 29, 2008 3:52 AM
From: "tim alchin" <[email protected]>
To: [email protected]

Hi,
great, let's do that.
I hope you have the access to AD's hotmail, where I drop information, mostly notes and cables.
Perhaps you could do the same?
Be careful with password - I never say it aloud or put it in mails.
My mobile: +357 99 523 980
yes, lets be in touch on programme
we should knock sthg up shortly.
:-)
t

Date: Mon, 27 Oct 2008 08:02:09 -0700

From: [email protected]
Subject: Sonja's email and contacts
To: [email protected]

Dear Tim,

above my private email address. Shin advised to use this one to exchange information.
Looking forward to see you in Cyprus soon. Lets stay in touch on AD's programme there.

My NY cell phone is 917.882.3634.

cheers, Sonja

Read amazing stories to your kids on Messenger Try it Now!

Mtg with AU-NO-SK end Oct 08.doc - Yahoo! Mail Page 1 of 1

Mtg with AU-NO-SK end Oct 08.doc Monday, November 3, 2008 9:29 AM
From: "tim alchin" <[email protected]>
To: [email protected]
Mtg with AU-NO-SK end Oct 08.doc (101KB)

Sonja,

here is a note of recent mtgs held by SRSG.

can you distribute to colleagues who are in CC at bottom of note?
thanks
t

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Mtg with AU-NO-SK end Oct 08.doc

Note on recent SRSG meetings

Foreign Minister of Australia, Steven Smith, 27 October 2008

Present: SRSG Zerihoun, Alchin; Minister of Foreign Affairs Stephen Smith, Australian High
Commissioner HE Mr Evan Williams, Australian Special Representative for Cyprus HE Mr
David Ritchie, MFA officials Ms Kate Callaghan, Mr Richard Maude, Ms Rachel Moseley.

1. SRSG Zerihoun briefed on the current stage of the talks. Smith wondered if EU
membership could be turned to the advantage of the talks, e.g. how the transfer of
some powers to Brussels could mean that there might be less to argue about. Positive
elements could also include financial and security aspects.

2. On Australia’s role and support, SRSG said that political support would be important.
The Foreign Minister’s presence and the appointment of a Special Representative
were important. SASG Downer was also associated with Australia. It would be
important to commend by name the leaders.

3. SRSG informed that the UN role was very much hands-off. However as the talks
evolved, the provision of expertise may be required. Smith said Australia was ready
to help, and requests could be channeled through the High Commissioner.

4. Asked about Turkey, SRSG said that Turkey was an important player, a regional
power, and this could not be “wished away”. It was important to engage Turkey
positively and constructively as part of the solution, with which it had to feel
comfortable, not as part of the problem. SRSG did not have the impression that
Turkey was holding TkCyps back in the talks, as the GkCyp media often alleged.

5. Smith asked about the policy of officials visiting Talat, given that he was robustly
informed that visiting Talat would be unacceptable. SRSG posited that such visits,
whose intention is made clear, should be acceptable given the fact of an
internationally sanctioned peace process. While blocking access is not helpful, the
timing of challenging the policy had to be considered, not least as the government
was split on the matter.

State Secretary of Norway Elizabeth Walaas, 30 October 2008

Present: SRSG Zerihoun, Alchin; State Secretary Elizabeth Walaas, Ambassoador. Sverre Stubb.

6. SRSG Zerihoun briefed on the current stage of the talks. Walaas informed that she
had visited Talat, Iacovou and Kyprianou. From these meetings, she sensed a strong
commitment of all parties to the talks. At the same time, she sensed that the parties
were promoting their own concepts, when in reality any solution will likely be
Mtg with AU-NO-SK end Oct 08.doc

slightly different. The GkCyps thought the governance chapter could be finished by
the end of November. Talat had said that he did not exclude the provision of external
expertise, and even wanted arbitration. Walaas asked whether EU accession could
make the negotiations easier, and that some input of expertise on acquis related issues
(e.g. can the EU allow one central bank?) might help. The TkCyps were particularly
weak on these issues.

7. Walaas opined that the parties might benefit from working backwards from the
solution. Given the political aspects to a solution, the information campaigns to be
carried out by the parties would always be important. SRSG concurred, stressing that
the technical committee measures were an important aspect to create political space
for the leaders to work in. The sides however had not yet reached the point where the
process was irreversible. SASG Downer and the full good offices team, supported by
UNFICYP, should be on island from the new year.

8. Regarding Norway’s involvement, SRSG asked Walaas to stay engaged and continue
to talk to the parties, reminding them of their responsibilities; take initiatives in
international organizations to raise the profile of the Cyprus problem and the current
talks. The SASG will coordinate the engagement of the international community.
SRSG expressed thanks to Norway for support to the MSU through the Refugee
Council, and noted that more expertise will likely be required as the talks evolve.

Minister of Defence of Slovakia Jaroslav BAŠKA, 31 October 2008

Present: SRSG Zerihoun, Alchin; Minister of Defence of Slovakia Jaroslav BAŠKA, Gen Lubomir
BULÍK, CGS of the Slovak Armed Forces, H.E. Ms Anna TURENICOVÁ, Mr Rudolf PÚCIK,
Member of Slovak National Parliamentary Assembly, Mr Július DEMETRIAN, General Manager of
SEOPMVL Ministry of Defence, Lt Col Jaroslav SCHÖNVICKÝ – Commanding Officer Sector 4.

9. SRSG expressed condolences for the recent loss of Slovak soldier, and welcomed the
swift replacement of the S4 CO. The UN was grateful to the Slovak contingent which
did excellent work in a difficult sector. UNFICYP would be keen for Slovak
contribution to continue. SRSG also expressed thanks to Ambassador Turenicová for
her support to the political process through the facilitation of the meetings of the
political parties. SRSG briefed on the current stage of the talks.

10. Baška said that Slovakia was committed to remaining in Cyprus, noting Slovakia’s
withdrawal from participation in UNDOF. On the process and particularly on Turkey
whose role the SRSG posited should be a constructive one as part of the solution and
not part of the problem, Baška noted that discussions with Turkey were difficult
elsewhere, including in NATO.

TA
31/10/2008

CC: SASG Downer, SRSG Zerihoun, DPKO/ELAD Cyprus team, DPA/AED Cyprus team
note of mtg of ldrs 03-11 - Yahoo! Mail Page 1 of 1

note of mtg of ldrs 03-11 Thursday, November 6, 2008 9:34 AM

From: "tim alchin" <[email protected]>
To: "Sonja Bachmann" <[email protected]>
Note on mtg leaders 03-11-08.doc (99KB)

Sonja,

hi, please pass on to colleagues.

are you sharing these with dpko?
thanks
tim

Read amazing stories to your kids on Messenger Try it Now!

Note on mtg leaders 03-11-08.doc
Summary note of meeting of Mssrs. Talat and Christofias
Hosted by SRSG Zerihoun at UNDP compound (UNPA)
Monday 3 November 2008

Present:
H.E. Mr. Dimitris Christofias H.E. Mr. Mehmet Ali Talat
Mr. George Iacovou, Representative Mr. Ozdil Nami, Representative
Mr. Andreas Mavrommatis (adviser) Mr. Kudret Ozersay (adviser)
Mr. Toumazos Tsielepis (adviser) Mr. Resat Caglar (adviser)
Mr. Menelaos Menelaou (note taker) Mr. Tufan Erhurman (adviser)
Mr. Mehmet Dana (note taker)
SRSG Tayé-Brook Zerihoun
Mr. Wlodek Cibor, UNFICYP
Mr. Tim Alchin, UNFICYP

Summary of discussion

The leaders fix two further meetings for the next week. Advisers are instructed to move
forward creating a composite reference document on federal competences. Leaders
exchange positions once again on executive arrangements, each defending earlier stances.
Talat makes first presentation on the legislature, on which the GkCyp side makes an initial
reaction. Discussions on legislature will continue at the next meeting, followed by the
judiciary.

Details

1. The leaders had a one hour tête-à-tête session. Upon return, it was announced that the
leaders would meet again on Tuesday 11th November at 16.00, and again on Friday 14th
November at 10.00. [note: since the meeting, the Friday meeting was brought forward to
Thursday 13th November at 09.30]

2. In brief comments on the meeting of the advisers, Nami said they had made “a little
progress”; he suggested a meeting the following day to try to converge the papers. Iacovou
suggested an attempt at working level to make one document; the advisers should also meet “to
consider other issues also”. SRSG Zerihoun commended the approach of creating one document
as a building block to drafting an agreement.

3. Christofias said he felt the need to reiterate his “clear position in front of the TkCyps and
in front of the UN that arbitration is not on the agenda and that he would not agree to it”.

4. As foreseen, Christofias then read out a text commenting on Talat’s remarks of 22/10 on
the executive (see attached). [In summary, the points revolved around: a joint ticket, weighted
voting, the meaning of political equality as ensuring ‘effective participation’, absolute and
separate majorities, direct elections, strengthening of the president/vice-president (P/VP)
powers, deadlock resolving mechanisms, and that the TkCyps had not changed position since the
preparatory phase while the GkCyps had made proposals.]

5. Talat made an initial reply, to clarify some “important misunderstandings”. Firstly,

regarding the single list, he noted that campaigning on both sides of the island and a joint ticket
in Parliament were different. The TkCyp proposal foresees that parties in Parliament, as
everywhere, would find coalition partners and form a government. Finding coalitions on the
island, at least at the beginning, would be much more difficult. “This is easy for me to
understand, but not for you. You don’t understand my concern,” he said.
Note on mtg leaders 03-11-08.doc

6. Secondly, the TkCyps were not looking for numerical equality in all bodies. Talat said
that the UN definition is that the overall agreement should ensure political equality. As political
equality did not mean numerical equality in all branches, this had to mean that numerical equality
was to be expected in some. Numerical equality would rule in the senate, though the TkCyps
were not asking for it in executive, but rather for “close numbers in the upper level”.

7. Thirdly, what would be the sense of rotation if the executive were elected on a common
programme, or vision including joint campaigning? The objective of rotation, in Talat’s view,
would be to “show that there is a partnership in the structure…politically equal communities”.

8. “Don’t make these arguments. Twenty does not equal eighty,” Christofias interjected,
adding that the parties were committed to the Security Council resolutions. Noting that both
leaders had to report to their communities, he said that a rotating P/VP was a concession by the
GkCyps, and one only made in recent years. He lamented that Talat now wanted equal rotation.
Talat replied that he was not talking about the 3/2 rotation, or arguing against rotation, but rather
addressing the single ticket issue. He cited Bosnia-Herzegovina as an example of partnership
through rotation.

9. Christofias: federation [concept in Cyprus] was a product of invasion and occupation, and
the use of military forces. Talat: this is a chicken and egg argument. Christofias: please rethink
your proposals. Talat: you accuse me of saying something I didn’t say. I didn’t say [numerically]
equal representation; I said a better representation to show two politically equal sides. Look at
Switzerland. Christofias: it’s unique. Talat: but nowhere are there two equal communities of
equal political level. Switzerland gets closest to it with a rotating presidency. Christofias: look at
the nineteen others which you don’t take into account.

10. Talat noted that in no system was there a joint ticket and a rotational presidency.
Tsielepis: and where bizonality? Talat noted the rotation on an equal basis both in Switzerland
and Bosnia-Herzegovina. At the same time, he is taking population [ratios] into account and was
not seeking full equality, but an “upgraded level…close to numerical equality”, not including the
senate and judiciary.

11. Christofias accused Talat of personally introducing as ‘prime minister’ the concept of a
“clear senate”, thereby changing Annan III. In all federations, inhabitants have one vote and have
the possibility of being elected. Talat: do you want bicommunality? Christofias: is it not enough
for you? I beg you, as a friend, rethink this or you will lead us into a deadlock. Talat: 3-2 is not
equality.

12. Fourthly, Talat denied seeking separate majorities throughout the administration. The
TkCyps were seeking 2/5 in the senate. The TkCyps were only seeking separate majorities in the
election and formation of a government. Where is bicommunality? Tsielepis: in the weighted
vote. Nami: but that is not political equality. Talat noted that this was the first time that a
weighted vote concept has been introduced in the history of the negotiations of the Cyprus
problem, citing 1960, Ghali Ideas, the Annan Plan. Tsielepis: but there was a P/VP voted by
separate majorities. Talat replied that this was the way to give legitimacy to the executive. “If
you insist on a common ticket, this will be a non-starter for the TkCyps,” Talat said, adding that
he was discussing it for the sake of a solution.

13. Talat then made a presentation on the legislature (see attached) in reply to Christofias’
presentation of 22/10. [Talat’s remarks echo Christofias’ earlier presentation in format,
identifying areas of convergence and divergence. Talat then elaborated further on the points of
divergence. In summary, the points revolved around: representation in the lower house, and
Note on mtg leaders 03-11-08.doc
decision making mechanisms therein, representation in the upper house based on residence
versus communal lines, deadlock resolving mechanisms.]

14. Noting that 1/3 representation in the lower house went backwards from the Annan Plan,
Christofias asked how many federations provided for equality in the senate? The lower house
traditionally reflected the population and took decisions by a simple majority. Talat asked how
decisions could be allowed to pass if ¾ of TkCyps voted against a measure, or all. Tsielepis
recalled that the lower house would represent Cyprus as a whole. He warned that if the parties
picked and chose from different systems, the result would be GkCyp demands for a unitary state,
and TkCyp demands for a confederation. He noted that there was no rotation in Belgium, and the
residual powers passed to the centre.

15. On Talat’s concern that legislation could pass through the house with no TkCyp support,
Christofias said he did not expect from Talat an approach along communal or ethnic lines but
rather along class or social lines. Will the communities not have common interests? How could
the GkCyps and TkCyp vote in entirely different direction? Talat repeated: how could GkCyps
pass laws without asking a single TkCyp? Tsielepis said the senate could reverse it. Dismissing
that as “another issue”, Talat made the scenario that 1/3 representation would provide for 16
[TkCyp] seats. Over time, GkCyps and foreigners could be elected, in which case, the TkCyps
seats could fall under 12. In reply to Christofias’ remarks, Erhurman said that the majority of
voting would not be along ethnic lines, but some would be. Can we accept a situation that given
possible ethnic voting, the lower house could lose its meaning? Christofias posited that AKEL
would not vote along ethnic lines. Tsielepis noted that every federation faced the problem of
balancing the equality between the regions and the institutions; the lower house however
reflected the population and had to be retained. He bemoaned Talat’s discussion of BiH versus
every other federation. Talat clarified that he was not proposing the full equality as in BiH, but a
“slight increase so that TkCyp opinions could be taken into account’.

16. Talat said the TkCyp side could not accept the linking of voting [to the upper house] with
the right of settlement as it undermined bizonality. In this regard, he stressed the “internal
citizenship” concept, as evident, in his view, in Switzerland, Republika Srpska and the U.S.

17. Regarding deadlock mechanisms, and who should decide when a deadlock has occurred,
Erhurman said the legislature could not decide [i.e. when a deadlock had been reached] when it
itself was a part of the deadlock: in this case the executive would be best placed to decide.
Mavrommatis argued that the Parliament’s role should be to be the first to correct its inability to
pass a bill. Further the Attorney General could play this role, a proposition which Talat rejected
given, in his view, that the AG had a tendency to confirm blockages rather than free them. Talat
argued that the replacing of the legislature by a deadlock resolving committee was not
reasonable, and rejected it for the sake of separation of powers and democratic principles. The
committee could however make proposals for both houses to consider. He recalled the TkCyp
position that the committee could make decisions firstly by consensus, or eventually by majority.

18. Regarding the media, the leaders asked the SRSG to issue a short factual statement on the
meeting (attached).

Tim Alchin
5 November 2008
Note on mtg leaders 03-11-08.doc
Remarks by Special Representative of the Secretary General Tayé-Brook Zerihoun
following the meeting of Cyprus Leaders
United Nations Protected Area, Nicosia, 3 November 2008

Good afternoon,

The leaders started today’s meeting with a one hour tête-à-tête. They then took
up discussion on the federal executive and again instructed their representatives
to continue their discussions in an effort to narrow remaining differences.
Following that, the leaders continued with a preliminary exchange of views on
the legislature. They will continue these discussions when they meet next on
Tuesday 11 November. They have also decided to hold a second meeting that
week on Friday 14 November. I am glad to tell you that there was also an
understanding reached on your behalf, or to your favour, and that at the next
meeting, cameras and videos will be invited in to take pictures and video to
update your footage.

Thank you.

Q: There was a Greek Cypriot police team carrying out an inspection tour in the area
early in the morning. Is this a routine inspection or was there a particular reason for
this?

Tayé-Brook Zerihoun: It must be routine because I haven’t heard about it.

Q: Will the UN have a more energetic role in case by the end of the year there is no
impressive progress?

TBZ: I think that’s a bit too early. We are here at the request of the parties. We have
offered the Secretary-General’s good offices and we are flexible to the needs and
desires of the parties, and this is a decision the Secretary-General would have to make
at any rate. But we will help in any way the parties want us to help them.

Q: The leaders have been discussing the matter of the executive for about seven
meetings now. Have you established or ascertained any narrowing of the gap between
the two sides?

Q: Can I expand on that - where do they agree or not? Can you tell us where there is
some convergence? Perhaps a couple of points where there is some progress?

TBZ: Obviously I cannot go into the details. I’m sorry about that, but indeed, they are
dealing with these issues. There are many complicated issues, you know better than I,
and they are moving forward, I can assure you about that.

Q: But is there a narrowing of the gap?

TBZ: They are moving forward. Thank you very much. Good day.
 Note on mtg leaders 03-11-08.doc

COMMENTS OF THE GREEK CYPRIOT SIDE ON THE “TALKING POINTS”

AND ON THE “REVISED TURKISH CYPRIOT PROPOSAL” FOR THE
FEDERAL EXECUTIVE

The Greek Cypriot side, having studied with the necessary attention the “Talking Points”
and the “Revised Turkish Cypriot Proposal on the Federal Executive” wishes to submit
the following comments:

1. The Turkish Cypriot side considers our proposal for the election of a President and a Vice
President on a common ticket as unrealistic. We have repeatedly explained the
advantages of the common ticket for both communities and there is no need to repeat
them in an analytical form. The common ticket implies, inter alia, a common program, a
common pre-election campaign, interdependence of the two candidates between
themselves and with the voters of both communities and it is therefore it is natural to
conclude that it is more likely to work as a catalyst for cooperation than a separate
election. This is why the UN promoted the idea of a common ticket. We wish to simply
add that despite our sincere effort we still cannot understand how it can be possible to
consider a common ticket with only two candidates unrealistic but at the same time,
according to the Turkish Cypriot proposal, to consider it realistic to have a common
ticket with seven candidates.

2. The Turkish Cypriot side argues that the common ticket for a Presidential Council elected
by separate majorities of Senators is feasible because the Senators will be elected by the
people who will previously approve the solution in separate referenda. The argument is
unfounded and does not need to be further commented. The question however is still
there: If this applies to seven candidates how can it not apply to two candidates of the
common ticket?

3. Furthermore, the Turkish Cypriot side considers that the common ticket is a direct
violation of political equality and bi-communality. As it will be demonstrated below,
such violation doesn’t exist. Again, however, the same question poses itself “how can a
common ticket of two candidates violate the aforementioned principles and the common
ticket for the election of a Presidential Council does not?”
 Note on mtg leaders 03-11-08.doc
4. The Turkish Cypriot side considers our proposal for a weighted vote as “very alarming”
and does not accept under any circumstances any proposal which directly or indirectly
gives more political weight to one community, which is allegedly the case with the
weighted vote. It is true that the weighted vote has been proposed to give more political
weight to the Turkish Cypriot community, since it substantially increases its weight in
the election of a President and a Vice President and accordingly reduces the weight of the
Greek Cypriot community bearing in mind the population ratio.

5. Since the Turkish Cypriot side gives its own interpretation on various aspects of
political equality we wish to stress that the two sides have agreed with the meaning of
political equality as defined by the Security Council in relevant resolutions as follows:
“While political equality does not mean equal numerical participation in all federal
government branches and administration, it will be reflected in the fact that the
approval and amendment of the federal constitution will require the approval of both
communities; in the effective participation of both communities in all organs and
decisions of the federal government; in safeguards to ensure that the federal government
will not be empowered to adopt any measures against the interests of one community;
and in the equality and identical powers and functions of the two federated states” (bold
letters are ours).
We are disappointed by the fact that the letter and the spirit of the two papers under
discussion and of many other related positions of the Turkish Cypriot side totally ignores
the agreed definition of political equality which does not mean numerical equality but
effective participation of the two communities in the organs and decisions of the federal
government. We cannot otherwise explain the fact that the Turkish Cypriot side deems
separate majorities as the only acceptable choice and considers weighted voting, which
only aims at significantly increasing the weight of the votes of the Turkish Cypriot
community which represents 20% of the population, as anathema. We cannot otherwise
explain that even a simple note of the population ratio is presented as an effort to
downgrade the Turkish Cypriot community to a minority-from the point of view of
international and constitutional law- ignoring the fact that if we had such a position we
wouldn’t accept the principle of effective participation in the organs and decisions and
we would insist exclusively on the principle “one citizen-one vote”. We cannot otherwise
explain that even a simple reference to the election of the President and Vice President
with a significant number of votes from both communities is outrageous for the
Turkish Cypriot side. It would have been understandable if the Turkish Cypriot side
Note on mtg leaders 03-11-08.doc
wanted to discuss further the idea of weighted vote. However, we cannot understand the
Turkish Cypriot position that the weighted vote violates political equality and bi-
communality, exactly because this position implies that political equality is numerical
equality in all organs and equal instead of effective participation in all decisions which is
a violation of the agreed definition of political equality. If the Turkish Cypriot side is
angered by the weighted vote then how should the Greek Cypriot side feel with the
outdated and unfounded positions for a 3:2 rotation in the Presidency, the election of the
Council through separate majorities, the 4:3 ratio in the Council etc, which substantially
violate the sensitive equilibrium shaped and supported by the UN all these years?
6. The Greek Cypriot side reiterates its genuine commitment to the agreed definition of
political equality and proves this commitment in the most authentic manner. The absolute
Turkish Cypriot position that only separate majorities are acceptable and that anything
else is a violation of political equality is contrary to UN proposals, which the Turkish
Cypriot side has in the past accepted.
There are two different positions here: The Turkish Cypriot position for separate
majorities and the Greek Cypriot position for a majority of the total population.
According to the logic of the Turkish Cypriot side we could also consider our preference
as the only acceptable one. We didn’t do it though because our aim is to submit bridging
proposals and to achieve a compromise between different positions. This is why we
proposed separate majorities as a first choice. Only if election is not feasible through
separate majorities and in a further effort to achieve a compromise, we proposed
weighted voting as second choice, the content of which is open for further discussion.

7. The Turkish Cypriot side supports that instead of a single ticket it would agree to a
separate voting as in the 1960 Constitution and which formed the basis of every
arrangement since 1963. The argument is not accurate and cannot stand any serious
criticism. The 1960 Constitution provides for a Turkish Cypriot Vice President and not
for a rotating President. For as long as the negotiations were held on this basis there was
also a provision for separate voting. When, however, the rotating presidency was
introduced, the negotiations were conducted on the basis of a common ticket without
separate voting. If the Turkish Cypriot side accepts to restrict itself to the Vice
Presidency, on the basis of which the negotiations were conducted until the Annan Plan,
then the Greek Cypriot side is ready to reconsider separate voting.
Note on mtg leaders 03-11-08.doc
8. The Turkish Cypriot side says that it is not possible for us to argue that the only
democracy in the world is the United States. We have never made such a statement. In
our paper of 13 October 2008, in replying to the Turkish Cypriot position that our
proposal will bring about an undemocratic if not an authoritarian regime we said and I
quote “it is common sense that direct election is at least not less democratic than indirect
election”. We do not see the usefulness of continuing a theoretic discussion as to which
system of governance is more democratic. We see, however, confusion in the relevant
argumentation of the Turkish Cypriot side. Of course we all know that in Switzerland the
members of the Council are elected by the Parliament and that the same applies to the
Prime Ministers of Britain and France. This is so, however, because in these cases we do
not have to do with a Presidential system but a Council, Parliamentarian and Semi
Presidential system respectively. The rule in genuine Presidential systems is direct
election of the President by the people. In France the Prime Minister is elected by the
Parliament but the President, in contrast to the President in Parliamentarian systems, is
elected by the people, precisely because he bears executive powers.

9. The Turkish Cypriot side expressed readiness to satisfy an alleged Greek Cypriot
demand according to which if the President and Vice President jointly disagree with
decisions of the Council on issues of foreign policy, defense and security they can jointly
decide otherwise. The Turkish Cypriot side also added the issue of the budget. We have
to clarify that this was not a Greek Cypriot demand but an effort of the Greek Cypriot
side to satisfy to the extent possible the Turkish Cypriot position that “every decision of
the Presidential Council shall need the consent of both the President and the Vice
President to enter into force”(p.8, par.2 of the report of the working group).
This clarification is made for a substantial reason and not for the sake of impressions:
Since the Turkish Cypriot side implies that this is not its preference but an effort to
satisfy the Greek Cypriot position we wish to make it clear that it is neither our
preference and we are ready to withdraw our compromise proposal if this is the desire of
the other side.
We underline, however, that our bridging proposal was submitted in the framework of
our overall position for a presidential system. The power of the President and the Vice
President to take executive decisions and to even decide otherwise than the Council has
no relation whatsoever with the system of a presidential council and destroys the spirit,
the reason d’ etre and the most substantial element of this system of governance since in
Note on mtg leaders 03-11-08.doc
this system the executive power is held exclusively and collectively by the Council and
not by the President and the Vice President.

10. The Turkish Cypriot side expressed surprise because as it alleges the Greek Cypriot
side proposes a deadlock resolving mechanism in the legislature whose members come
from the executive with the President having a casting vote, which does not respect the
separation of powers. Evidently there is a misunderstanding of our position. We neither
proposed, nor would it be even possible to propose such a mechanism. Once more we
wish to make clear our position as already included in written form in the page 21 of the
common report of the Working Group on Governance: “If a deadlock arises in the
Legislature, a Committee shall be established, comprising the two Presidents and the
Vice-Presidents of the two Chambers, a representative of each of the two bigger parties
from each federated unit, as well as one additional senator hailing by rotation 2:4 from
each federated unit. Four represents the ratio of the most populous unit. The Committee
shall take an interim decision on the matter, which will remain in force until such time as
a decision is taken by the Legislature in accordance with the Constitution”(bold letters
are ours). It is clear that in the mechanism there is no involvement whatsoever of the
federal executive or the federal judiciary.

11. The Turkish Cypriot side considers that our amended proposal for equal
representation in the deadlock resolving mechanism is meaningless since there will be a
casting vote of the President who will be Greek Cypriot on a time ratio of 2:1. The
Turkish Cypriot side ignores the fact that the President decides only in the end and only if
the deadlock persists. This provision was not submitted to deceive anybody as it is
derived from the fact that the Greek Cypriot President will have a four year term since the
population ratio is 4:1 in favor of the Greek Cypriot community. Of course it would have
been institutionally incorrect to give a casting vote to the Vice President instead of the
President for the sake of absolute equality. If, however, the Turkish Cypriot side feels
that the balances are violated with this proposal we are ready to discuss it further.

12. The proposal of the Turkish Cypriot side for the system of governance does not
include any new element with regard to the report of the Working Group and therefore it
is deemed unnecessary to repeat our comments on it. On the contrary, our proposal as
included in the report of the Working Group has been amended in respect of very precise
new elements in an effort to satisfy Turkish Cypriot concerns and to bridge the
Note on mtg leaders 03-11-08.doc
differences (weighted vote, precise executive powers to the President and the Vice
President, equal representation in the deadlock resolving machinery of the federal
executive).

27 October 2008
PAPER OF THE TURKISH CYPRIOT SIDE
ON THE LEGISLATURE

In line with the approach contained in the Greek Cypriot paper on legislature,
we also propose that at the beginning of the meeting the areas of convergence
identified in the relevant working group are reconfirmed at the level of the Leaders.

These are:

The legislative organ on the federal level shall be bicameral (composed of two
Chambers). These will be the Senate (Upper House) and the House of Representatives (Lower
House). In the Senate there will be equal representation. Each Chamber will elect a President
and two Vice Presidents, one from each Constituent State. Decisions of Parliament will require
approval of both Chambers with simple majority, including at least 1/4 of Senators present
and voting from each Constituent State. Special majority of 2/5 of Senators from each
Constituent State, in addition to a simple majority of deputies present and voting from each
Constituent State will be required for special laws listed in the Constitution.

We also want to reconfirm the other agreements identified in the working

group, which are:
a) The Presidents of the two chambers shall not come from the same Constituent State. At the
same time, the Presidents of either chamber shall not come from the same Constituent State
for two consecutive terms.
b) The Vice President who doesn’t come from the same Constituent State as the President of
the relevant chamber shall be the First Vice President of that chamber.
c) Each chamber shall require a majority of sitting members (quorum) in order to take
decisions.
The Turkish Cypriot side reiterates its commitment to the aforementioned agreed issues.

The basic divergences in the working group were:

I. The Greek Cypriot proposal for a minimum representation of 1/4 for each
Constituent State in the House of Representatives and TC proposal for a minimum
representation of 1/3 for each Constituent State in the House of Representatives.

II. The Greek Cypriot proposal that decisions in the House of Representatives are taken
with simple majority and the Turkish Cypriot proposal that decisions in the House of
Representatives are taken with a minimum 1/4 of the votes from each Constituent
State.

III. Greek Cypriot proposal for representation in the Senate on the basis of permanent
residence and Turkish Cypriot proposal for communal representation in the Senate.
Note on mtg leaders 03-11-08.doc
IV. Greek Cypriot proposal for representation in the House of Representatives on the
basis of permanent residence and Turkish Cypriot proposal for representation in the
House of Representatives on the basis of internal citizenship status.

V. Who decides on whether there is a deadlock.

VI. The deadlock resolving mechanism.

I would like to reiterate our views for each of these points of divergence:

As regards the first two divergences, which are related to representation and decision-
making procedure in the House of Representatives, we propose for a minimum representation
of 1/3 for each Constituent State in the House of Representatives and for a minimum 1/4 of
the votes from each Constituent State for decisions of the House of Representatives for the
following reasons:

In order to provide each side with a meaningful representation in the lower house, at
least 1/3 of the members of the lower house must come from the less populous Constituent
State. It is true that in most of the federations, the lower houses, which represent the citizens
as a whole is designed on the basis of proportional representation. However, it is also true that
in some federations (e.g. Bosnia and Herzegovina) because of the special circumstances of the
country, this is not the case. In the united Cyprus, there shall be only two Constituent States.
So it must be noted that the circumstances in a united Cyprus and the federations with more
than 5 or 6 constituent units like Germany, Austria, Canada, Australia, Malaysia, Emirates,
Nigeria, Tanzania and India (which are given as examples by the Greek Cypriot side) will not
be the same.
As there shall be members from only two Constituent States in the lower house, we
have to find ways to make the representation of both sides meaningful and thus respect the
principle of effective participation. For this purpose, it is clear that 1/4 (which is proposed by
the Greek Cypriot side) is not enough. We should also keep in mind that whether the Turkish
Cypriot proposal or the Greek Cypriot proposal for representation in the House of
Representatives is accepted, some of the seats reserved for the Turkish Cypriots in the House
of Representatives may be occupied, in time, by the Greek Cypriots as well as other
nationalities living in the North. Therefore, we should at the beginning keep the percentage of
Turkish Cypriot representation at a higher level.
Furthermore, it is a widely shared principle that for any participation to be meaningful
(e.g. participation of women in any organ), no less than 1/3 representation (critical mass) is
required.
In the European Parliament, to enable meaningful participation for the citizens of each
member state, the principle of proportional representation is not observed. For example, while
to be elected as a MEP from “Republic of Cyprus”, number of votes required is 133.333, from
Germany this number is 829.293. While the population of Germany is more than 100 times
that of “Republic of Cyprus”, the number of seats allocated to Germany (99) is only 16.5 times
that of Cyprus (6).
At this point, I would like to say a few words on the Bosnia-Herzegovina example.
According to the latest data (2000), in Bosnia-Herzegovina 48% of the population is Bosniak,
37% is Serb and 14% is Croat. Nevertheless, the Presidency has 3 members (1 Bosniak, 1 Serb
and 1 Croat) who have equal rights. They are elected directly by their ethnic groups. There is a
rotational presidency, which rotates between them every 8 months. Furthermore, the House of
Representatives has 14 Bosniak, 14 Serb and 14 Croat members and in the House of Peoples,
Note on mtg leaders 03-11-08.doc
which is the second chamber in the Parliament, there are 5 Bosniaks, 5 Serbs and 5 Croats. So
there is numerical equality in both chambers.
It is our considered view that each of the houses in a united Cyprus should be
designed in such a way that the representation and the decision making procedures shall
inspire the spirit of cooperation between the Turkish Cypriots and the Greek Cypriots. If the
Turkish Cypriot members are only 1/4 of the lower house and no minimum participation (1/4
of Turkish Cypriot votes) is required, it is clear that the Greek Cypriot members shall not need
the votes of the Turkish Cypriots and the lower house shall be seen by the Turkish Cypriots as
a house which is, in effect, completely controlled by the Greek Cypriots.
In order to reduce the number of deadlocks in the legislative organ and in order to
prevent the upper house from becoming the “centre of conflict”, 1/4 of the members present
and voting from each Constituent State must be needed for the approval of a decision or a bill
not only in the upper house but in the lower house as well.
As regards the third point of divergence, which is the issue of representation in the
Senate, it is agreed that the federation will be based on the principles of bi-communality, bi-
zonality and political equality. We see the upper house as an organ which will ensure these
principles in the legislature. For this purpose, it is of vital importance to give the right to vote
to the members of the communities. It is clear that voting on the basis of permanent residency
will not be in line with the principle of bi-communality. It does not support political equality
either, because in time, permanent residency in the Turkish Cypriot Constituent State shall,
within the limits of the agreement, be open for the Greek Cypriots as well as other
nationalities.

We must also stress that we do not see it appropriate to discuss the election procedure
of the Senate in relation to the right of settlement and of property reinstatement. The
principles of bi-communality, bi-zonality and political equality are accepted by both sides as
the main principles of the comprehensive solution. While the right to elect and be elected is
directly related with the principles of political equality and bi-communality, right of settlement
and property reinstatement is directly related with the principle of bi-zonality. Neither of these
principles can be overlooked or undermined for the sake of the other.

As regards the fourth point, which is the issue of representation in the House of
Representatives, we need to underline that we are dismayed to hear our Greek Cypriot
counterparts propose permanent residence to be the basis for the election of the House of
Representatives. As is well known, within the context of the European Union, permanent
residence is only relevant for local and European Parliament elections. Thus, the Greek
Cypriot proposal raises concern on the Turkish Cypriot side that Greek Cypriot side sees the
Constituent States as nothing more than a local authority, which clearly is not the case.
Secondly, as the House of Representatives will represent the people from two Constituent
States as well as all the citizens of the island of Cyprus, the election should be on the basis of
Constituent State citizenship, otherwise there would be no organ where the citizens of
Constituent States are represented. We also would like to remind our counterparts that, despite
their claim to the contrary, the word ‘citizenship’ is used in other federations within the
context of constituent parts, even at the level of municipalities.

For example;

Swiss Constitution article 37 reads as: “Every person who has the citizenship of a Municipality
and of the Canton to which it belongs, has Swiss citizenship.

The Law on the Citizenship of Republika Srpska reads as:

Note on mtg leaders 03-11-08.doc
Article 1: “This Law determines ways, conditions and procedure for the acquisition
and loss of citizenship of Republika Srpska”.
Article 2: “All citizens of Republika Srpska are thereby citizens of Bosnia and
Herzegovina”.

Further references are made to the citizenship of Republika Srpska in the remaining 34
articles of this Law.

US Constitution Amendment 14 reads as: “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside”.

As for the fifth issue of divergence, which is about who decides whether there is a
deadlock, we understand that the Greek Cypriot side wants to give this right either to the
President of the Federal Republic, the Vice President of the Federal Republic, the Presidents
or Vice Presidents of either Chamber and the Attorney General or Deputy Attorney General.

We propose to give this right only to the executive. As it was also agreed in the
working group, a deadlock arises when the upper house fails to adopt a bill which is passed by
the lower house and
(i) without which the federal government or its institutions could not properly
function, or
(ii) the absence of which would result in a substantial default on the international
obligations of the federal government or the obligations of the federal government as a
member of the European Union.
In our view, it is clear that it is only the executive who must decide which law is of vital
importance for a functioning government or for international or EU obligations of the
federation. Giving the authority to the Presidents or Vice Presidents of the Parliament to
initiate the procedure for deadlock resolving will not be ethical as they are members of the
very organ (the Parliament) which already rejected the bill.
Similarly, we also find it difficult to understand why the Attorney General or the
Deputy Attorney General should be given the authority to decide on what constitutes a
deadlock, as according to the principle of separation of powers, the functions of the Attorney
General and the Deputy Attorney General are clear in all democratic countries. It is not
reasonable to give them the right to initiate the procedure for deadlock resolving when the
parliament rejects a bill and the executive does not see a problem for proper functioning of the
government and for international obligations of the federation.
As for the sixth point, which is about deadlock resolving mechanism, we would like to
underline once again that in our view any formula which gives a commission the right to
replace the legislature in times of deadlock is not reasonable. We reject such proposals not
only because they are against the principle of separation of powers, but also because they are
against all the basic principles of democracy.

We insist that any kind of commission/committee which shall be composed to resolve

deadlocks must only have the right to prepare proposals for the legislature which shall be
subject to the approval of the both houses. Taking this into consideration, we want to remind
you of our proposal about deadlock resolving:

A committee shall be established comprising the President and the Vice President of
each chamber and the leader/representative of the main parties of each Constituent State in
Note on mtg leaders 03-11-08.doc
each house (the committee shall be comprised of equal number of Greek Cypriots and Turkish
Cypriots).
This committee will strive to reach a decision with consensus. When it fails to do so, it
will decide with majority. If the committee reaches a solution which enables the enactment of
the bill in the upper house without any changes, that bill will become law after it is passed
from the upper house. If the committee agrees on making some changes in order to make it
acceptable, then the procedure will start from the beginning and the new bill will be voted
upon in both houses.

3/11/2008
RE: note of mtg of ldrs 03-11 - Yahoo! Mail Page 1 of 1

RE: note of mtg of ldrs 03-11 Friday, November 7, 2008 8:32 AM

From: "Kendra Collins" <[email protected]>
To: [email protected]

Thanks Sonja.

Date: Thu, 6 Nov 2008 16:01:57 -0800

From: [email protected]
Subject: Fw: note of mtg of ldrs 03-11
To: [email protected]
CC: [email protected]

Dear Tim,

quick one: since I will be travelling a lot in the upcoming months, apart from sending the
leaders' minutes to my private account, could you also copy Kendra Collins in (her private
email address is above), so I do not need to forward and will be easier to ensure the desk
also gets a copy. Kendra will ensure that the minutes are distributed in-house here.

Many thanks!
Sonja
--- On Thu, 11/6/08, tim alchin <[email protected]> wrote:

From: tim alchin <[email protected]>

Subject: note of mtg of ldrs 03-11
To: "Sonja Bachmann" <[email protected]>
Date: Thursday, November 6, 2008, 9:34 AM

Sonja,

hi, please pass on to colleagues.

are you sharing these with dpko?
thanks
tim

Read amazing stories to your kids on Messenger Try it Now!

Stay up to date on your PC, the Web, and your mobile phone with Windows Live Click here
RE: note of mtg of ldrs 03-11 - Yahoo! Mail Page 1 of 1

RE: note of mtg of ldrs 03-11 Friday, November 7, 2008 12:13 PM

From: "tim alchin" <[email protected]>
To: "Sonja Bachmann" <[email protected]>
Cc: [email protected]

will do!!
t

Date: Thu, 6 Nov 2008 16:01:57 -0800

From: [email protected]
Subject: Fw: note of mtg of ldrs 03-11
To: [email protected]
CC: [email protected]

Dear Tim,

quick one: since I will be travelling a lot in the upcoming months, apart from sending the
leaders' minutes to my private account, could you also copy Kendra Collins in (her private
email address is above), so I do not need to forward and will be easier to ensure the desk
also gets a copy. Kendra will ensure that the minutes are distributed in-house here.

Many thanks!
Sonja
--- On Thu, 11/6/08, tim alchin <[email protected]> wrote:

From: tim alchin <[email protected]>

Subject: note of mtg of ldrs 03-11
To: "Sonja Bachmann" <[email protected]>
Date: Thursday, November 6, 2008, 9:34 AM

Sonja,

hi, please pass on to colleagues.

are you sharing these with dpko?
thanks
tim

Read amazing stories to your kids on Messenger Try it Now!

Get the best wallpapers on the Web - FREE. Click here!

Attachments - Yahoo! Mail Page 1 of 1

Attachments Thursday, November 20, 2008 7:58 AM

From: "Donatella Giubilaro" <[email protected]>
To: [email protected]
Summary.meeting.Leaders.17Nov2008.pdf (1345KB),
Summary.meeting.Representatives.14Nov2008.pdf (1118KB),
Summary.meeting.Leaders.13Nov2008.pdf (3147KB)

Find three attachments. Donatella

Fw: more recent fotos from Cyprus - Yahoo! Mail Page 1 of 2

Fw: more recent fotos from Cyprus Saturday, November 22, 2008 8:44 AM
From: "Sonja Bachmann" <[email protected]>
To: [email protected], [email protected]

hallo hier mein foto aus den Zypern Verhandlungen.

Sonja Bachmann
Special Assistant to SASG Downer
UN Department of Political Affairs
Ext. 73528
cell. 917.882.3634
email: [email protected]

-----Forwarded by Sonja Bachmann/NY/UNO on 11/22/2008 02:42PM -----

To: Alexander DOWNER/UNFICYP@UNFICYP, Sonja Bachmann/NY/UNO@UNHQ

From: Tatyana Volkova/NY/UNO
Date: 11/14/2008 06:27PM
cc: Elizabeth Spehar/NY/UNO@UNHQ, Laura Vaccari/NY/UNO@UNHQ, Kendra
Collins/NY/UNO@UNHQ, Obinna Okamgba/NY/UNO@UNHQ
Subject: more recent fotos from Cyprus

somebody is looking for a pen!

Fw: more recent fotos from Cyprus - Yahoo! Mail Page 2 of 2

3 Help save paper - do you need to print this email?

nota - Yahoo! Mail Page 1 of 1

nota Thursday, November 27, 2008 6:12 AM

From: "Donatella Giubilaro" <[email protected]>
To: "Sonja Bachmann" <[email protected]>
Note meeting.25.Nov.2008.pdf (2385KB)

Attachment with summary note of last meeting. Donatella

summary meeting - Yahoo! Mail Page 1 of 1

summary meeting Friday, December 5, 2008 11:19 AM

From: "Donatella Giubilaro" <[email protected]>
To: "Sonja Bachmann" <[email protected]>, "Tim Alchin"
<[email protected]>
Note meeting advisors 3.December.2008.pdf (4629KB)

I attach summary of the meeting of the representatives held on 3 December 2008.

Donatella
Note meeting 2 December - Yahoo! Mail Page 1 of 1

Note meeting 2 December Saturday, December 6, 2008 6:00 AM

From: "Donatella Giubilaro" <[email protected]>
To: "Sonja Bachmann" <[email protected]>, "Tim Alchin"
<[email protected]>
Note meeting Laeders 2.December2008.doc (85KB)

Attached is the note of the meeting of the leaders held on 2 December. Donatella
NotemeetingLaeders2.December2008.doc

Summary note of meeting of Mssrs. Talat and Christofias

Hosted by SRSG Zerihoun at UNDP compound (UNPA)
Tuesday 2 December 2008

Present:
H.E. Mr. Dimitris Christofias H.E. Mr. Mehmet Ali Talat
Mr. George Iacovou, Representative Mr. Ozdil Nami, Representative
Mr. Andreas Mavrommatis (adviser) Mr. Kudret Ozersay (adviser)
Mr. Toumazos Tsielepis (adviser) Mr. Resat Caglar (adviser)
Mr. Nikos Moudouros (adviser) Mr. Tufan Erhurman (adviser)
Mr. Menelaos Menelaou (note taker) Mr. Mehmet Dana (note taker)
Ms. Asli Erkmen (note taker)
Ms. Bilgin Saryurt (interpreter)

SRSG Tayé-Brook Zerihoun

Mr. Wlodek Cibor, UNFICYP
Mr. Tim Alchin, UNFICYP
Ms. Donatella Giubilaro, Good Offices (note taker)

Summary of discussion

Christofias replied to TkCyp statement on recent unilateral steps and actions taken by
the Greek Cypriot Leadership. A discussion followed on whether the future entity
would be a continuity of the Republic of Cyprus, as well as on the presence of one or
two peoples in the island. In both cases, Talat reiterated his position, advocating,
however, for ambiguity. Discussions included consideration of convergences and
divergences on the matter of Federal Public Service and Public Service Commission.
Bridging proposals were presented by both sides.

Details

1. The meeting started with a one hour tête-à-tête session. Beginning the meeting
Christofias said that during their tête-à-tête they had a reconciliation approach and
that it was his hope that they could continue in the same way.

Reply to Turkish Cypriot statement of 25 November 2008

2. Christofias read a statement (attached) in reply to the Turkish Cypriot

statement of 25 November 2008 on recent unilateral steps and actions taken by the
Greek Cypriot Leadership. He stressed that there was only one people in Cyprus,
including two communities. For the time being the two communities were separate
but they will reunite with a solution. He also underlined that he would not give up his
duties as head of state and would not abandon the sovereign right of the Republic of
Cyprus. Concluding his reply statement, Christofias said that since Talat had not
given his statement to the press, he would do the same and abstain from sharing his
reply with journalists.

3. In response, Talat said that it would be possible for them to come back with
replies to the points made by Christofias. But, that would not help the environment of
NotemeetingLaeders2.December2008.doc

the talks. However, it was inacceptable for them that the aim of the negotiation could
be the evolution of the Republic of Cyprus into a federation. The continuity of the
Republic of Cyprus was not a starting point. He added that last time he had raised the
issue of “ambiguity” and that he wanted to stress it again. That would help them
proceed and move negotiations to another stage in order to reach an agreement.

4. Talat further replied that a second fundamental disagreement was whether there
were one people or two peoples in the island. He explained that instead of accepting
the reality, Christofias’ refusal to accept the presence of two peoples was linked to his
rejection of its possible consequences; in particular, the issue of self-determination.
However, the intention of his team was not to divide the island. For the time being,
the division of the island was not the aim and, therefore, GkCyps should not worry of
them talking about the presence of two peoples. He explained that he had specified for
the time being, since he could speak only for the present government and not for
governments that may be in power in the future. Since there was no international legal
decision about “a single nation” or “a single people” it was better not to stress their
disagreement. He asked Christofias not to emphasize the issue because, in the north,
the issue did no help create an environment conducive to the negotiations.

5. Asked for clarification on the fact that he talked about two peoples even if the
aim was not self-determination, but that he was aware that in the future someone else
could use it to justify such a request, Talat replied that that was why it was better to
maintain the matter in ambiguity.

6. Christofias replied that he preferred not to respond, but that the sovereignty of
the state was not negotiable. He further replied that no Security Council decision had
ever mentioned “two peoples” and that the issue was an invention of scientists being
put at the service of political means. He stressed that the only people in Cyprus were
the Cypriots. Talat replied that when GCyps insisted on “a single people in the
island” TkCyp concern was they would try to impose the majority rule. Christofias
replied that the reality that one community was more numerous of the other could not
be changed. He added that, in any case, when he will sign the solution at the end of
their negotiations, he would do it as leader of his community.

7. Talat confirmed that he and his team were not for the division of the island. He
was ready to include it in the text of the solution they were negotiating, which would
state clearly that the division of the island was unconstitutional.

Federal Public Service and Public Service Commission

8. Talat read a document (attached) on Federal Public Service and Public Service
Commission, including convergences and the two different positions on areas of
divergence. He said that they would also like to propose that regular decisions of
every federal department or institution shall be taken by both the director and the
deputy director. In order to avoid deadlock situations, they were ready to accept that
under special circumstances to be specified by law, such as urgency, the signature of
the deputy-director was not needed.

9. On the composition of the Federal Public Service Commission, Talat stressed

that, in view to achieve convergence, they wanted to propose equal rotation with
NotemeetingLaeders2.December2008.doc

casting vote. The same arrangement could be used in the case of other federal bodies
that did not exercise political or judiciary functions. Christofias replied that it was
their intention to discuss the issue of representation ratios as a package. However, it
was also their aim to establish institutions that could work, stressing the need of
efficiency. Talat replied that their aim was that decisions should be taken in
accordance with the positions of the two communities. The risk of sharing the
decision-making machinery would result in a divided federal state. Instead, in a
system of rotation, compromise solutions would prevail in decisions made at the
federal level.

10. Talat further explained that he would not ask for a rotation system for all
institutions but only in some specific cases. He asked Christofias to consider their
proposal of rotation since it would respect the idea of workability of the state.
Christofias replied that they were ready to discuss that proposal but that they wanted
to know in details which institutions Talat had in mind. Talat replied that he would
come up with a detailed list.

11. On the matter of employment of the citizens of the EU and Turkey, Talat said
that their proposal was that if EU citizens were given the right to be public servants of
the state, the same right would be given to Turkey citizens on the basis of numerical
equality. He explained that the proposal was made only in the case EU citizens were
given the right to be public servant. If that right was not granted, their proposal could
be deleted. Instead a text, stating that foreigners will not be accepted in the public
service, would be added. Christofias replied that that matter should be discussed
under the subject of EU matters.

12. On the matter of the composition of the federal public service, Talat stressed
their position that at least 1/3 of the public servants at every level of the
administration must hail from each constituent state. Christofias replied that their
position was that the composition shall be proportional to the population of the
federated unit. However, in an attempt of bridging the positions he wished to propose
(last page of GkCyp document attached) that, “where not otherwise specified in the
Constitution, up to 30% of the totality of public servants must hail from each
constituent state.”

Next steps

13. The leaders agreed to meet again on Tuesday, 16 December (morning) and that
they would discuss matters related to External Affairs. Christofias said that by then
they should also be ready to provide a feedback on TkCyp proposal on deadlock
resolving mechanisms. Following meetings remain scheduled for:
 Monday, 22 December (morning)
 Monday, 29 December (morning)

Donatella Giubilaro
5 December 2008
NotemeetingLaeders2.December2008.doc

REPLY TO THE TURKISH CYPRIOT STATEMENT OF 25 NOVEMBER

2008

Last week I said I would respond to your statement about “unilateral steps and actions
taken by the Greek Cypriot leadership”.

Before doing that, I emphasise my sincerity in these negotiations and my desire for a
mutually agreed outcome. I also believe that accusations and counter-accusations will
hinder our reaching agreement. I am sure you agree that we are not adversaries. We
certainly must not give the impression that we are. We cannot afford to revive “the
blame game”. Instead, we must proceed with the new phase of co-operation which
our serious start on negotiations entails.

In view of this, your statement of 25 November greatly disturbed me. Repeated

reference to crucial and sensitive issues to which the two sides have different
approaches (such as the applicability of State succession, the character of the 1960
Constitution and the interpretation of the UN Resolutions), will lead to disputes and
endless exercises in interpretation. To enter upon such discussions can only harm the
current process. Whatever our differences of viewpoint, we should at least agree that
the UN Resolutions cannot be questioned. I say this because, I believe the
Resolutions to be very clear on all aspects of the solution. In this regard, your
allegation that the UN Resolutions do not provide for one people and for the
continuation of the Republic of Cyprus is remarkable.

Among such clear aspects of the UN Resolutions are, the recommendation that the
two communities reach a peaceful agreed settlement “in accordance with the Charter
of the United Nations having in mind the will of the people as a whole”. Those words
are in SCR 186 of 4 March 1964, the first Cyprus Question Resolution, which also
recognised “the sovereign Republic of Cyprus,” a Resolution renewed repeatedly for
over 44 years. In 1974, again in 1983, the Security Council Resolutions, called upon
all States to respect “the sovereignty, independence and territorial integrity of the
Republic of Cyprus”. The Council also called upon all States “not to recognise any
state in Cyprus other than the Republic of Cyprus” in SCR 541(1983). Since SCR
716(1991), the Council’s position has been that a Cyprus solution must be “based on
one State of Cyprus comprising two politically equal communities as defined by the
Secretary-General”. “The well-being of the Greek Cypriot and Turkish Cypriot
communities” would be ensured “in a bi-communal and bi-zonal federation,”
excluding “union… with any other country and any form of partition or secession”. I
hope you understand that the Greek Cypriot side cannot accept the abandonment of
basic principles of International Law and of such clear provisions of the UN
Resolutions. The continuity of the Republic of Cyprus as enforced by International
Law, UN Resolutions, and the Accession Treaty are not negotiable. Let alone the fact
that Turkey continued to recognize the Republic of Cyprus until 1974.

However and despite the fact that I am in a very strong position on these issues I
consciously refrain from putting them at the centre of the current negotiation. Instead,
of returning to issues on which we disagree we must focus on practical specific issues.
I had hoped that you would appreciate this constructive approach. Instead, with your
last statement you are in fact demanding from me to accept your unacceptable
positions on “state succession” and “two peoples” which plainly contradict
NotemeetingLaeders2.December2008.doc

International Law and UN Resolutions. To these, I add that, in reaching a

comprehensive settlement, neither side should be pressurised by artificial deadlines
and by arbitration. That too is a failed recipe. And I very much regret your insistence
to return to such unsuccessful methods.

Nor must we re-open disputes on issues that divide us. In all my political course, I
personally and the party from which I come, AKEL, pointed out that this is the
homeland of both Greek Cypriots and Turkish Cypriots who are destined to live
together in peace. I courageously admitted that both communities had harmed one
another, falling in the traps of foreign intervention. It is fruitless to try to apportion all
the blame to one community. Such an approach will only be a repetition of the same
mistakes that caused us the bitter experiences of the past.

I regret that despite this principled stand, you accuse me of intent to dominate Turkish
Cypriots because of my position that the sovereignty of the Republic of Cyprus must
be restored and exercised in all territory of the Republic. This is totally unfounded
and constitutes a distortion of my statements and an offense against the principles I
represent. Since you asked for an explanation, I make clear that the sovereignty of the
Republic of Cyprus will be restored by the solution and the withdrawal of Turkish
troops and settlers in the framework of a bizonal bicommunal federation.

I regret that I have been compelled by your insistence to a separate “Turkish Cypriot
people” to talk about the international law concerning “people” and “self-
determination”. Let me be clear on this matter as it touches upon the very essence of
the Cyprus problem. The UN and the international community accept that there is
only one people of Cyprus, comprising two communities. This view underlies SCR
186(1964). Temporarily, the territory and the people of Cyprus are physically
divided, but that division will end when there is a solution to the Cyprus problem.
The areas of the Republic of Cyprus where the Government of the Republic does not
exercise effective control will be reunited with those areas where the Government
now exercises effective control, and the acquis communautaire will apply throughout
the territory of Cyprus as an EU Member State, in accordance with Protocol No. 10,
an integral part of the Act of Accession of Cyprus to the EU.

There is also a second very important reason that I had to tell you the above. When,
in 1990, Mr. Denktash insisted that the term “communities” be used in a manner
synonymous with the term “people”, each having a separate right to self-
determination, Secretary-General Boutros-Ghali pointed out that this would change
the framework of the inter-communal talks. It also created, as the Secretary-General
reported to the Security Council, “an impasse … which raises questions regarding the
essence of the mandate of good offices given to me by the Security Council, and,
therefore, regarding the basis of the talks”.

According to the UN Charter “peoples”, have the right to self-determination. You

personally repeatedly admitted that this is the reason you insist on “two separate
peoples”. The right to self determination also includes a right to a separate state. This
is why, the Security Council excludes any separate self-determination in Cyprus, by
its Resolutions. These require respect for “territorial integrity” of Cyprus and exclude
“any Union in whole or in part and any form of partition or secession”.
NotemeetingLaeders2.December2008.doc

Because of some of the remarks in your paper, I must briefly make a couple of other
observations. Each of us has differing roles and responsibilities. As Head of State of
the Republic of Cyprus, the only recognised State in Cyprus, I shall continue to
exercise my powers, fulfil my responsibilities and defend the sovereign rights of the
Republic. I will not abdicate and abandon powers, duties and responsibilities while
we negotiate. Those responsibilities of course apply both internally and in relations
with foreign States.

I deem necessary in the context of Cyprus’s good relations with both the United
Kingdom and with Russia to enter into a Memorandum of Understanding with the UK
and a Declaration with Russia. Those agreements did two things: they sought to
deepen relations and inter-state co-operation; and they reiterated the participants’
commitment to the long-standing basic positions on a Cyprus settlement set out in the
UN Resolutions, positions which I earlier referred to. All those references were within
the letter and spirit of the UN Resolutions, the High Level Agreements and the
principles upon which the EU is founded and do not in any way contravene or cause
damage to the genuine interests of the Turkish Cypriot community. To the contrary,
these principled positions safeguard and promote the interests of the whole people of
Cyprus, Greek Cypriots and Turkish Cypriots alike.

You have also accused me of purchasing “heavy and sophisticated weaponry” which
are “yet another indication that the Greek Cypriot side is not fully focused on finding
a settlement”. No-one can claim that I am not 100% committed to a peaceful
settlement through political means. This is another position of principle that I
personally and my party have defended for decades. This is why I have taken the
initiative that led to the cancellation of the military exercises “NIKIFOROS” and
“TAURUS”. Pending a solution and because our country is faced by the presence of
a massive foreign military occupation force, I must ensure that the Republic is in a
position to take at least minimal preventive measures to defend itself against possible
aggression. But I cannot accept a logic that reverses reality as to who is the
perpetrator and who is the victim. And I cannot ignore the invasion, the presence of
tens of thousands of Turkish troops on the island and the continued occupation. The
National Guard has only nine thousand men and we are considering a cut of the the
length of the military service. Turkey maintains a modern army in Cyprus comprising
40,000 men and sophisticated weaponry. It has air and naval force that we don’t have.
It maintains also huge numbers of missiles, armoured vehicles and tanks. Since you
are concerned I invite you to jointly state that the solution will provide for
demilitarisation, resulting in the removal of all foreign troops and weaponry.

You express discontent for the research in the exclusive economic zone of the
Republic of Cyprus and you declare that natural resources belong to both
communities. I wholeheartedly agree that natural resources, including possible
resources of oil and natural gas belong to both communities. Let this be one of the
many serious reasons to solve the Cyprus problem. However, this is not your real
problem. I refer to Turkey’s recent statements and naval activities. Almost the whole
International Community, has signed and respects the UN Convention on the Law of
the Sea according to which all States including Cyprus have a Continental Shelf and
sovereignty on their exclusive economic zone. Only Turkey does not recognise the
Republic of Cyprus and its sovereign rights, thus plainly violating every sense of
International Law. As I have already stated both here and publicly as well, I will
NotemeetingLaeders2.December2008.doc

never abandon the sovereign rights of the Republic of Cyprus. Turkey’s arrogance
and aggressive behaviour only poisons the atmosphere of the negotiations and the
relations between the two communities.

Only after the invasion and the occupation of Cyprus, Turkey claims that, as far as she
is concerned, Cyprus does not exist as a State entitled to sovereign rights under the
customary law of the sea, let alone under the 1982 Law of the Sea Convention.
Turkey has taken naval action to enforce her asserted continental shelf rights which
she claims reach to the southern maritime zones of Cyprus.

I do not want to enter a debate, but, as leader of the Turkish Cypriot community, is it
your view that Cypriots including Turkish Cypriots have no maritime rights in the
area claimed by Turkey or in the Eastern Mediterranean? Is it only Turkey that has
continental shelf rights and rights to claim an exclusive economic zone? Does Turkey
have these rights at Cypriots’, including Turkish Cypriots’, expense? As I have told
you during our discussion, and I think you agreed, the Continental Shelf and the
Exclusive Economic Zone will be federal competences. Consequently natural
resources within the exclusive economic zone and revenues from them will be for the
benefit of all Cypriots. Exploration and preparing for exploitation is a lengthy process
taking several years. The best way to safeguard that all Cypriots will benefit, is to
cooperate for a solution the soonest so that the Federal Republic of Cyprus will enjoy
Cyprus’s sovereign right to her continental shelf and Cyprus’s rights to her exclusive
economic zone under the Law of the Sea Convention. Those sovereign rights and the
benefits of current exploration will then belong to all Cypriots, not to a foreign State,
which is trying to usurp them.

A last joint responsibility, which we have, is not to allow the goodwill between the
communities, resulting from commencement of these negotiations, to be eroded. I,
frankly, replied to the comments you made at the last meeting. I believe that we
should not repeat such debates - either now or in the future. Let us get on with our
negotiations bearing in mind that this is an exercise for the restoration of law, not for
the imposition of the will of the aggressor on the victim.

Both of us must, after all the difficulties we have faced over the years, realise that the
real choice is between a one state federal solution and the status quo. I have
personally made my choice.
NotemeetingLaeders2.December2008.doc
PAPER OF THE TURKISH CYPRIOT SIDE
ON FEDERAL PUBLIC SERVICE AND PUBLIC SERVICE COMMISSION

The positions of each side on the issue of federal public service and public
service commission have already been submitted in the relevant working group,
and the areas of convergence and divergence have been identified. As a first step,
we propose that the areas of convergence are reconfirmed here between the two
Leaders.

These areas are:

1. There shall be a federal public service.

2. There shall be a federal law regulating all matters related with the federal public
service.

3. The decision making procedures of all the departments, institutions and any
other administrative organs of the federal administration shall be based on the
principles of political equality as defined by the UN Security Council, inter alia,
effective participation.

4. There shall be a federal Public Service Commission.

5. It shall be the duty of the Commission to appoint, confirm, emplace on the

permanent establishment, promote, transfer, second, retire and exercise
disciplinary control over, including dismissal or removal from office of public
officers.

6. The members of the Commission shall be appointed for a period which is one
year more than that of the members of the Executive.

7. The members of the Commission shall be dismissed only for the same reasons
and in the same manner as the Supreme Court judges.

8. A federal public servant may not simultaneously serve as a public servant of a

Constituent State. The case of secondment is an exception.

The areas of divergence in the working group were:

1. According to the Turkish Cypriot position, the director and the deputy director
of a federal department, institution or any other administrative organ shall not
hail from the same Constituent State. The Turkish Cypriot side also proposes
that the regular decisions of every federal department, institution or any other
administrative organ shall be taken by both the director and the deputy director.

(If the Greek Cypriot side is concerned that such an arrangement may lead to a
deadlock, the Turkish Cypriot side is ready to accept that under special
circumstances (like urgency), the signature of the deputy director shall not be
needed. These special circumstances shall be specified in the law.)

2. The composition of the Federal Public Service Commission

NotemeetingLaeders2.December2008.doc
The Greek Cypriot side stated in the working group that equal number of
commission members can be accepted provided that there is agreement on an
adequate and satisfactory mechanism for resolving deadlocks.

With a view to achieving convergence regarding the matter, we propose that

there shall be a rotational chairpersonship with a casting vote.

(We may also consider this arrangement for all other federal administrative
organs, including the independent regulatory bodies which exercise quasi-judicial
functions, which do not exercise political or judicial functions).

According to our proposal: The Public Service Commission shall comprise a

chairperson, a deputy chairperson and four other members hailing in equal
numbers from each Constituent State. The chairperson and the deputy
chairperson shall not hail from the same Constituent State and the
chairpersonship shall rotate every year. If there is a deadlock, the chairperson of
the Commission shall have a casting vote. The members of the Commission shall
be appointed by the executive for a period which is one year more than that of
the members of the executive. If the quorum is less than the total number of
members, then the vote of at least one member hailing from each Constituent
State shall be needed in order to take a decision.

3. The composition of the federal public service

According to the Greek Cypriot side, the composition of the public service shall,
where not otherwise specified in the Constitution, be proportional to the
population of the Constituent States.

The Turkish Cypriot side, on the other hand, is of the view that in order to have
meaningful participation in the federal public service, at least 1/3 of the public
servants at every level of the administration must hail from each Constituent
State.

4. Employment of the citizens of the EU and Turkey

According to the Turkish Cypriot side, if the citizens of the EU are given the
right to be public servants of the state, the same right will be given to the citizens
of Turkey on the basis of numerical equality.

The Greek Cypriot side, on the other hand, expresses the view that Cyprus is
bound by:
a) Regulation (EEC) No. 1612/68 on freedom of movement for workers
within the Community and in particular by Article 1 and,
b) The Treaty on the establishment of the European Community. Free
movement of person, services and capital, article 39 and especially article 39(4).

Regarding the issue of the public servants, we also propose the following for the
consideration of the Greek Cypriot side:
Any person holding any public office whatsoever in any authority in Cyprus immediately
prior to the coming into being of the new state of affairs is a member of the public
service of the united Cyprus (Federal Government or Constituent States).
 10


GREEK CYPRIOT PAPER ON FEDERAL PUBLIC SERVICE AND PUBLIC

SERVICE COMMISSION

The positions of each side on Federal Public Service and Public Service
Commission have already been submitted in the Working Group and the
areas of convergence and divergence have been identified. As a first step we
propose that the areas of convergence are reconfirmed between the two
leaders. These areas are:

1. There shall be a Federal Public Service. A federal law shall regulate all
matters related with it.

2. The decision making procedures of all departments, institutions and any

other administrative organs of the federal administration shall be based
on the principle of political equality as defined by the UN Security Council
which provides, inter alia, for effective participation of both federated
units in all organs and decisions of the federal government.

3. There shall be a Federal Public Service Commission.

4. It shall be the duty of the Commission to appoint, confirm, emplace on

the permanent, establishment, promote, transfer, second, retire and
exercise disciplinary control over, including dismissal or removal from
office of public officers.

5. The members of the Commission shall be appointed for a period which is

one year more than of the members of the executive. They shall be
dismissed only for the same reasons and in the same manner as the
Supreme Court judges.

6. A federal public servant may not simultaneously serve as a public servant

of a federated unit/constituent state. The case of secondment is an
exception.

The areas of divergence are:

1. According to the Turkish Cypriot position, the director and the deputy
director of a federal department, institution or any other administrative
organ shall not hail from the same constituent state.

2. According to the Turkish Cypriot position, the Commission shall be

composed of 6 members hailing in equal numbers from each constituent
state. If the quorum is less than the total number of members, then the
 11


vote of at least one member hailing from each constituent state shall be
needed in order to take a decision. According to the Greek Cypriot
position, the Public Service Commission shall consist of a Chairman and
other members appointed by the Executive. Equal number of members
can be accepted provided that there is an agreement on an adequate and
satisfactory mechanism for resolving deadlocks.

3. According to the Turkish Cypriot position, the composition of the public

service shall, where not otherwise specified on the Constitution, be
proportional to the population of the constituent states, though at least
1/3 of the public servants at every level of the administration must hail
from each constituent state. According to the relevant Greek Cypriot
position, the composition of the Federal Public Service shall, where not
otherwise specified in the Constitution, be proportional to the population
of the federated unit.

4. According to the Turkish Cypriot position, if the citizens of the EU are

given the right to be public servants of the state, the same right will be
given to the citizens of Turkey on the basis of numerical equality. The
Greek Cypriot side stated that, as regards the matter of employment of
citizens of Turkey, Cyprus is bound by EU Law.

The Greek Cypriot side, in an effort to achieve further convergence,

wishes to clarify the following:

1. Concerning the director and deputy director of a federal department, the

Greek Cypriot side considers it useful to discuss representation ratios and
all relevant matters as a package.

2. The issue of employment of Turkish citizens raised by the Turkish Cypriot

side can be discussed under the subject of EU Matters.

3. On the composition of the Public Service even though the Greek Cypriot
side believes that representation shall be proportional to the population
ratio, we propose that, where not otherwise specified in the Constitution,
up to 30% of the totality of public servants must hail from each
constituent state.

2/12/2008