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Wednesday, November 29, 2023

The Supreme Court rejected the PtD Petition against the amending law on real estate

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Το Ανoτατο απe&rho ;ριψε Αναφορα ΠτΔ κατα τροποπο&iota

The Supreme Constitutional Court, under its new composition, rejected the Third Petition of the President of the Republic against the amending Law, passed by the Parliament, on issues concerning Turkish Cypriot properties and the powers of ” Guardian”.

Specifically, the Law under Reference amends subsection (1) of article 7 of the basic Law, with the addition, before the first proviso, of the new proviso that, before any license to use Turkish Cypriot real estate is granted to beneficiaries for the purposes of housing or professional use, the Guardian, for security reasons, takes care of the preparation of a relevant study for the static adequacy of the property.

The position of the President of the Republic, as developed by the representative of the Legal Service, had as a central point of reference the suggestion that the above addition brings about an increase in the expenses of the Budget and, consequently, violates Article 80.2 of the Constitution.

It is stated that the preparation of a study on the static adequacy of real estate “….. implies an increase in costs and/or staff hours that the Guardian does not have, with the result that this is assigned to the private sector, a fact that is not provided for in the state budget” .

The representative of the Legal Service argued, in addition, that there is an incompatibility of the Law under Reference with the constitutional Principle of the Separation of Powers, as it contains elements of administrative action and operation, “… since the management of Turkish Cypriot properties, their suitability, which of them are granted to beneficiaries, is a matter par excellence which should be regulated by the Executive Power…”.

The Lawyer for the Parliament, Andreas S. Angelidis, stated for his part that the Report under consideration is baseless and rejected. He submitted that not only is the budget not directly increased, but it also does not appear, in any way, that the contested provision results in any increase.

Any expenditure for a static adequacy study, he suggested, concerns the administrator of the property, i.e. the Guardian and will be borne by the Turkish Cypriot Property Fund. He added that the Parliament acted exclusively within its constitutional powers, within the framework of its own “… on all matters of power for voting and/or amendment, as in this case based on the specific Legislation”.

The Court after recording jurisprudential authorities that preceded on the subject, he concluded that there was no burden on the budget contrary to the Law and neither was there a violation of the Separation of Powers because the amendment in question falls within the framework of the legislative work – authority of the Parliament.

In yesterday's unanimous decision of the Court, it is stated, among other things, that “with the Law under Reference the basic Law is amended by adding a new reservation, through which the Guardian is tasked, for security reasons, to take care of the preparation of a relevant study regarding the static sufficiency of Turkish Cypriot real estate, before any license to use it is granted”.

“It is the appropriate stage to recall that the passing of the Basic Law arose as an urgent need for the State to take the necessary measures, under the conditions created as a result of the Turkish invasion, for the purpose of managing and protecting the abandoned Turkish Cypriot properties, for as long as this was necessary,” it added.

It is also stated that “in a series of decisions of the Supreme Court, it was judged that the measures taken were necessary for the state to cope with the needs that were created and served the interest of the social order. The constitutionality of the Law was also confirmed and that the legislative provisions were justified based on the application of the Law of Necessity”.

The Court notes that “the House of Representatives, acting within its powers, surrounded, through the provisions of the basic Law, the Guardian with a series of powers, in order to cope with the role assigned to him as administrator of the Turkish Cypriot properties”.

“Stipulated, Article 5, that during the management of said properties he will have all the rights and obligations that the Turkish Cypriot owner would have. Without affecting this generality, it provided, Article 6, for the collection of the amounts owed and their disposal in the most beneficial way for the property. It is also surrounded with the authority to care for, improve and develop the property and, in general, to carry out any act that may or may not need entails management”, he adds.

“The addition under discussion is of the same scope, the manner of monitoring and implementation of which is left to the Guardian. In this regard, the provision in question falls within the framework of the legislative work of the House of Representatives and no interference is detected, as in any way, in the responsibilities of the Executive Power”, it states.

“We believe that the Law under Reference is neither contrary nor inconsistent with the provisions of Article 80.2 and, by extension, Article 179 of the Constitution. Nor does it circumvent the constitutional Principle of Separation of Powers,” the Court points out.

Source: 24h.com.cy

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