Conor O’Dwyer’s lawyer was interviewed on Cyprus radio channel CyBC 2 by Rosie Charalambous about the criminal case against property developer Karayiannas and Michelle McDonald, the woman now living in Conor’s home.
EARLIER this evening Conor O’Dwyer’s lawyer, Yiannos Georgiades, spoke with Rosie Charalambous on the CyBC Radio 2 programme ‘Round and About’ about the criminal case against property developer Karayiannas and the woman now living in Conor’s home, Michelle McDonald.
Here are Mr Georgiades opening remarks and background to the case:
“First of all I would like to clarify that it was a private prosecution, it was a criminal case. It wasn’t the Civil Case that is still pending through which Conor is pursuing his rights and is asking for remedies. This is just a private prosecution under Section 303A of the Penal Code.
And according to this section of the Penal Code the developer or anybody really, cannot sell or rent or in any other way give possession of a house to a third person which he knows belongs to another person.
So in this case Conor bought this house and he was according to the Supreme Court Judgement in Cyprus he was the owner, the beneficial owner, from the moment he filed the contract of sale with the Land Registry.
That was done in 2006. In 2006 Conor bought his house with his wife and they filed their contract with the Land Registry. They paid CYP66,000 and later on because of disputes he had with the developer, the developer decided unilaterally to terminate this contract and sell it to another person although he knew that it belongs to Conor and although he knew that he should go to court – the civil court – in order to decide whether he could lawfully terminate this contract and sell it to another person.
Well, the thing is that the second buyer – it seems like she knew about Conor’s purchase of this house and still she carried on buying the house and that is why in this criminal prosecution we filed the case also against the second buyer. Because according to the law, section 303A, anybody who is entering into transactions of selling or renting or getting a house belonging to another is liable for criminal offence.”
Click here to listen to the 16 minute interview between Rosie Charalambous and lawyer Yiannos Georgiades.
A judge has ruled that British home buyer Conor O’Dwyer’s private criminal prosecution against Karayiannas and Michelle McDonald has not been proven and has ordered Mr O’Dwyer to pay their costs.
CONOR O’Dwyer has failed in his attempt to get justice through the Cyprus judicial system following a court ruling earlier today in his private criminal case against property developer Christoforos Karayiannas & Son Ltd and Michelle McDonald, the person now living in his home.
In 2008 the Attorney General wrote a three-line letter to O’Dwyer telling him that his developers had not committed any crime by effectively re-selling a house legally registered in his name. However, when O’Dwyer brought a private criminal prosecution against the accused, the judge agreed that Karayiannas and McDonald had a case to answer.
The judge accepted evidence from an official from the Department of Lands and Surveys who confirmed that O’Dwyer’s contract had been duly signed and lodged with the Land Registry for ‘Specific Performance’.
The court heard evidence that O’Dwyer made the stage payments as required by his contract until Karayiannas refused to accept a payment. It also heard how O’Dwyer made numerous attempts contact the Karayiannas to discover what was happening and how all of these were ignored.
The judge also accepted that the developer had resold the property to someone else without seeking Mr O’Dwyer’s consent to cancel the contract or applying for a court order to withdraw the contract from the Land Registry.
But despite the evidence submitted the judge did not consider it sufficient to prove that a fraud had been committed ‘beyond reasonable doubt’ and ordered Mr. O’Dwyer to pay the defendants’ costs.
According to the Island’s ‘Specific Performance Law’, the deposit of a contact of sale at a Land Registry prevents a property from being sold for a second time. It can only be withdrawn from the Land Registry with the agreement of the vendor and the purchaser – or by a court order.
Mr O’Dwyer’s lawyer, Yiannos G. Georgiades, said that: “We will appeal the decision; we believe it goes against the laws of Cyprus. The decision could give the wrong messages to overseas investors that their rights are not protected when they buy property in Cyprus even if they have filed their contracts with the Land Registry.”
“Investors must be assured that the laws of Cyprus safeguard their rights if they file the contract with the Land Registry and that the developer cannot resell their property without their consent.”
Referring to case law Andricos Nicou and others v George Georgiou 1 CLR(1999) p 940, Mr Georgiades added “The judgements of the Supreme Court are binding on the lower courts since in Cyprus we follow the English common law system.”
An ITV crew was in Cyprus this week to record a segment for prime-time television show ‘Homes From Hell’ which investigates claims of “foreign retreats which started off as dreams and turned into nightmares”.
Conor O’Dwyer protesting outside the Presidential Palace in Nicosia with ITV crew
BRITISH national Conor O’Dwyer worked with the TV crew for two full days on Sunday and Monday as it documented the lengthy legal battle he has been involved in with a Paralimni-based developer since 2005.
“The programme mainly focused on the fact that the contract to my property is currently in the Land Registry, my money is in the developer’s bank, while someone else is living in my house,” said O’Dwyer.
His legal battle began five years ago after he signed a property deal with Karayiannas property developer in Frenaros for the cost of £163,000.
O’Dwyer claims that after he purchased the house it was then resold without his knowledge by the developers.
Additionally, he says that soon after he purchased the house, the developers went back on their promise that an empty lot to the side of his property would not be built on. The developer, however, argued in court that this was never stated in the contract and they had already committed to building another property.
ITV also recorded O’Dwyer staging a one- man camping protest outside the Presidential Palace, which began on Monday and is set to and today, intended to highlight a criminal case being brought against him by the state for publishing his story online.
O’Dwyer is set to appear before a Paralimni court as a defendant on November 23 accused of publishing slanderous video footage of his developers on his website.
“The reason for this demonstration is to highlight what some Cypriot local developers are doing to foreign investors and how the state is letting them get away with it,” said O’Dwyer.
Additionally, Attorney General Petros Clerides has filed an appeal against a court decision regarding the assault of O’Dwyer by his developers.
Paralimni court recently sentenced 55-year old Christoforos Karayiannas and his son Marios, 35, to a 10-month suspended jail term for assaulting O’Dwyer in 2008.
A third man was also found guilty of assault and was ordered to pay a €3,000 fine.
The court found the men guilty of causing actual bodily harm (ABH) but Clerides has appealed for a more serious sentence of grievous bodily harm (GBH), which carries a maximum of seven years.
During the trial, the court heard how the three men rammed into O’Dwyer’s car in Frenaros village and then beat him, resulting in him being hospitalised for a week.
APPEARANCES
For the Prosecution: Mr. Yiannos Georgiades with Mr. Savvides
For the Defendants: Mr. Flourentzou with Mr. Vasilakka
Defendants 2, 3, 4 presents
Mr. Georgiades:
I’ll cross-examine Mr. Pittatzis…………………………………………………………..
Mr. Flourentzou:
…………………………………………………………………………………………………………
Court:
…………………………………the witness shall be subject to cross-examination
D.W.- George Pittatzis swears and says:
Q. Are you aware whether any document was prepared between Mrs Michelle McDonald and defendants 1 and 2 as regards the sale of a house purchased by the complainant?
A. No, I don’t know
Q. Have you advised the Defendants 1 and 2 in respect of the sale of the house of the complainant to third parties? Did you represent Defendant 2 or Mr Mario Karayiannas in relation to any sale of the immovable property bought by the complainant to the 4th Defendant?
A. As to whether I have provided advices and what kind of legal advices I have provided to my clients, I believe it is forbidden by law to say and it is considered as a disciplinary offence.
Q. Have you represented during 2006 Mrs Michelle McDonald in respect of the purchase of the house of the complainant? Do you know the lady over there? (shows the 4th Defendant).
A. I know her but not so well. When I saw her at the Court, they have introduced her to me. We have never met before and when I saw her in Court I asked her who she was.
Q. And you are not her lawyer?
A. No.
Q. Have you represented at any time during 2006 Mrs Michelle McDonald for the purchase of the house of the complainant?
A. Tell me specifically when in order for me to be able to reply. When during 2006?
Q. You said you are not the 4th Defendants lawyer.
A. I have been informed that the 4th Defendant had contacted my son Photos Pittadjis concerning some matters, but I believe my son made his own office at the beginning of 2006 and I am not sure if during the time period the advocate refers to and does not specify, Photos Pittadjis saw the 4th Defendant. I was informed that the 4th Defendant saw Photos Pittadjis at some point for some matters.
Q. Nothing else.
RE-EXAMINATION None.
…………………………………………………………………….
Court:
The case is fixed for closing speeches on 26.11.10, at 10:00am. The Defendants tmust be present under the same conditions.
The Registrar Office to arrange for an interpreter.
(Sign.) . ………………………………………
St. Tsividanidou – Kizi, D.J.
Dr Alan Waring considers the growing problems with the Cyprus property market and wonders where it is heading and if there are ways to prevent the industry from destroying itself.
“THOSE whom the gods wish to destroy they first make mad”, an ancient Greek saying goes. Judging by the growing eccentricities in the Cyprus property market, there are quite a few parties heading for destruction.
For example, some developers seem to have declared open warfare on buyers and any who try to protect themselves or defend the rights of buyers. Is threat of legal action, assault or other intimidation a good way to attract new buyers?
The Long March
OVER the past 5 years, Risk Watch has commented many times on the overall scandal of Title Deeds, property fraud and official blind eyes and deaf ears.
The recent Financial Mirror Editorial ‘A Sad Day for Cyprus Property’ plus the article from George Mouskides of APPDM ‘We have not learnt our lesson’ have highlighted yet again the uphill battle that property buyers, especially foreigners, have in Cyprus both against those developers and lawyers who decide to treat them badly and against the state infrastructure and justice administration, which thus far have failed to protect them.
The new government legislation may partly correct some aspects but it almost certainly will not fix the overall problem. For example, it will not address the developer mortgage debt bubble hanging over Cyprus, estimated to be at least Euros 7 billion. It does not address the issue of rogue lawyers or errant banks or inefficient government departments or the tardy justice system. No obvious anti-corruption/anti-rusfeti mechanisms are included.
Much of the buyer protection, which the government has asserted as being exemplary in its official response to probes by the European Parliament, is therefore virtual or illusory. Fortunately, the EC is still pursuing the matter.
Risk Watch understands that further questions about the Cyprus government and its handling of the property scandal are being tabled in the EP, the initial ones being:
With reference to previous Parliamentary Written Questions E-0110/09, E-6793/08 and E-6513/08.
1. Cyprus Title Deeds Legislation
“With a view to the new legislation that is about to be put in place by the Cypriot government to address the problem of withheld Title Deeds, would the Commission answer the following questions:
Does the Commission agree that this new legislation will not address the main problem cited in the numerous buyer petitions or indeed the above-referenced Parliamentary Questions, since it will not help buyers whose properties are encumbered with developer mortgages?
Does the Commission agree that the sale of mortgaged property without full disclosure at point-of-sale is practised systemically by Cypriot developers and should be prevented in all EU countries, with stringent penalties for transgressions?
How can a prospective buyer find out about the possibility of existing developer mortgages on the property? Do any developer websites or brochures mention this possibility or how to carry out searches to discover the risk before purchase? Historically buyers’ own lawyers have not alerted them to this risk in the majority of cases.
Finally, will the Commission send a fact-finding mission to Cyprus in order to investigate these problems in more detail?”
2. Cyprus Developer Mortgages
“With a view to the new legislation that is about to be put in place by the Cypriot government to address the problem of withheld Title Deeds, would the Commission answer the following questions:
How many individual properties whose sales contracts are lodged at the Land Registry in Cyprus are encumbered with developer mortgages? How many of these have been sold to Cypriots and how many to non-Cypriots?
What is the current balance of the total mortgage debt of Cypriot developers and the percentage increase, year on year, over the last three years?”
The recent Supreme Court landmark ruling, whereby a British couple’s Paphos lawyer was forced to pay them 120,000 Euros in compensation for negligent searches, took 11 years to conclude.
It is staggering that the guilty lawyer is still practising and that mandatory duty of care rules or professional standards for lawyers’ conveyancing search duties still do not exist in Cyprus.
Other cases involving developers, lawyers or both are also taking years to pursue through the court system. It is almost as if there is a conspiracy by the Cyprus establishment to ensure that buyers with real and often horrendous grievances are deterred from seeking justice by grinding them down and exhausting their energy, health and finances with a deliberately long drawn out process. Undoubtedly, some plaintiffs will die before their cases are concluded.
However, a growing number are determined to go all the way to the European Court if necessary, no matter how long it takes.
Some More Appalling Cases
THE NUMBER of cases of alleged serious wrong-doing against property buyers in Cyprus in recent years is now legion.
Many have been logged in detail by the Cyprus Property Action Group (CPAG) and Denis O’Hare, who has been the subject of a gagging order and a withdrawn libel suit by Leptos (Armonia Estates). Nigel Howarth’s website www.news.cyprus-property-buyers.com cites more.
Yet another is the case of Mr & Mrs Smith reported in Cyprus Mail 9 June 2010 ‘British couple plan to sue property developer’ which has even prompted the Cyprus President’s Under-Secretary to personally intervene publicly to try to ensure they receive full and prompt justice.
Will he also do the same for the hundreds of others held up by slow courts and the Attorney General’s block on criminal investigations into alleged property fraud? I have selected five cases as further illustration:
Case 1: Alleged Developer Fraud and Assault
The Conor O’Dwyer case has reached such a level of international notoriety it is difficult to see Cyprus ever living it down.
Mr O’Dwyer alleges that he paid CYP75k towards a property in Frenaros from the developers Karayiannis. On raising some concerns about the contract, he alleges that the developers then sold his property again without his knowledge or permission and also failed to return his money. As the Attorney General views such issues as civil and not criminal, Mr O’Dwyer was forced to take a civil case against the developers.
The developers and their lawyers contest Mr O’Dwyer’s allegations and counter-charge him with attempted extortion. While collecting video evidence of the property in question, Mr O’Dwyer alleges that senior representatives of the developer arrived and assaulted him.
Initially dismissing it as a simple road traffic accident, the police were then persuaded by intervention from the British High Commission to raise assault charges against the alleged attackers. His injuries were serious enough to keep him in hospital for a week.
Both the fraud and the assault cases have now been before the Cyprus courts for some years, largely owing to multiple adjournments. In the meantime, he has organised a protest campaign in the UK including a vigil outside the Cyprus High Commission, protests outside Cyprus property exhibitions and a DIY protest website.
Case 2: Alleged Lawyer Fraud, Forgery and Assault
A buyer alleges that she has been defrauded of Euros 200,000 as a result of her house having been sold twice.
She had appointed a well-known Cyprus law firm. She alleges that her contract of sale was withdrawn from the Land Registry using a forged power of attorney not even in her name. She further alleges that when she complained to her Cyprus lawyer about these matters he assaulted her by spitting in her face. This lawyer continues to practise unfettered.
Case 3: Alleged Lawyer Fraud
Following the death of a Cypriot woman in Cyprus in 2007, her son who had been living with her at the time of her death and who was co-executor to her will with a Paphos lawyer was puzzled by the unresolved probate.
He alleges that unbeknown to him the lawyer had submitted false affidavits to the court (and without a copy of her death certificate) that this woman had died in the UK some nine years previously and that he had been unable to locate her son! The affidavits also sought, and succeeded in, her son’s removal as an executor.
Her son, armed with her actual death certificate, eventually persuaded the court to overturn this errant decision and reinstate him as sole executor.
However, his subsequent attempts to persuade the Justice Minister and Ombudswoman to act on what was prima facie evidence of criminal fraud failed. The Disciplinary Board of Advocates of the Cyprus Bar Association after nine months also has yet to consider his complaint of serious professional misconduct against the lawyer, who continues to practise unfettered.
Case 4: Alleged Lawyer Negligence, Deception and Collusion
A buyer alleges that his Cyprus lawyer failed to advise him prior to contract of the presence of a CYP50k mortgage secured by the developer against the property. He also alleges that his sales contract was biased in favour of the developer and that there was probable collusion with the developer.
For example, he discovered that for a time the lawyer shared the services of an office secretary with the developer, thus raising a question of partiality and conflict of interest. Further, he alleges that the lawyer blatantly lied in a letter to him that the sales contract had been lodged with the Land Registry within the requisite period of 4-weeks, whereas subsequent investigations revealed the registration was not completed until 18-months later.
Case 5: Alleged Developer Fraud and Complicity of Others
A foreign couple were persuaded by their IFA (Independent Financial Adviser) who worked for a well-known firm based in Cyprus to buy as an investment four apartments off-plan at a new development from Sun Gain Estates in the Paphos area.
The buyers who were overseas relied on a well-known Cyprus lawyer appointed by the IFA. The contract was signed and the initial stage payments totalling CYP50k were made. After 18 months and no progress reports, the couple asked me to investigate. I discovered that the developers had never obtained planning permission and so the work had not started. Further, the IFA reported that as all the estate agents’ sales commissions had already been paid there was no longer enough money left to complete the job even if retrospective planning permission were granted!
The lawyer of record refused to respond to a request for assistance so he was replaced by a reputable Cyprus lawyer who soon discovered that in fact the Sun Gain directors had abruptly closed their Paphos offices and fled abroad with the money.
Where is it all heading?
HAVING highlighted the activities of rogue developers and lawyers in the inglorious Title Deeds/fraud mess in Cyprus, what about others in the cast of characters in this macabre theatre? Where is it all heading? Is there a way out?
The Attorney General
Although aspects of Cyprus property law are based in Ottoman law, the administration of justice and Cyprus law in general claims to follow English law and precedents.
Therefore, where there is prima facie evidence of criminal activity, then criminal procedures should take precedence over civil. Indeed, in English law it is standard for civil cases to await the outcome of related criminal cases so that a higher standard of proof (‘beyond reasonable doubt’) has been tested. Cyprus law references e.g. Neocleous (2000) state that in determining whether actions are fraudulent, the authorities ‘must concentrate on the acts committed and determine whether the taking was deliberate and intentional’.
The general ‘lack of intent’ exemption from criminal liability therefore does not apply if there is prima facie evidence that, for example, a developer has:
(a) received payment from one buyer, kept the money and then sold it again to a second buyer (or, in some cases, more than two!) and
(b) refused or failed to return the first buyer’s money.
However, as the Attorney General has repudiated all this in relation to property offences, the police cannot act. It is puzzling why property crime has been singled out for this special dispensation. Why not also for murder, rape, robbery or blackmail?
Why does the Cyprus property establishment use the quaint and trivializing word ‘cheating’ when they mean ‘fraud’? Why are long-winded civil cases forced on property victims before a criminal investigation is allowed, even when strong prima facie evidence of a crime exists?
A perverse parody of English law is being acted out, which has not gone unnoticed in legal circles in other countries that actually do follow the English legal system.
The Cyprus Bar Association
Ostensibly, the Cyprus Bar Association is the professional body for lawyers and to practise as a lawyer in Cyprus requires CBA membership.
The CBA supposedly sets professional standards and a Disciplinary Board exists. However, beyond the window dressing there is precious little evidence that it takes its disciplinary role seriously.
With such a growing number of allegations of professional misconduct, including fraud, against its members, especially in property-related cases, many are asking whether the CBA controllers have even a basic understanding of the purpose, function and duties of a professional body.
Early in my career, the Deputy Director General of a UK law enforcement body advised me that a professional body exists primarily to protect the public from the activities of rogues, quacks and charlatans and should never allow itself to fall into the trap of becoming a trade union protecting the interests of its members at the expense of its duties to the public. The contrast between the behaviour of the CBA and the UK’s Law Society, for example, on matters of client allegations of fraud or other misconduct is startling.
Recently Antonis Loizou, a high profile member of the Cyprus property establishment and a regular commentator on property matters, asked in the media why there appeared to be such a disproportionately high number of cases of allegations of fraud and misconduct against Paphos lawyers. The implication of an alleged cabal of rogue lawyers operating in Paphos is disturbing enough in itself.
The deafening silence from the CBA on the matter is even more disturbing. One would expect a professional body to act swiftly and publicly at the merest hint of impropriety.
The Banks
There is also the question of the banks’ role in the whole sorry property mess in Cyprus.
As the recent Toscafund Asset Management report on Cyprus emphasized, Cyprus banks are vulnerable to the continuing further slide in property values which may involve a sharp correction. The banks would then be forced to either liquidate immovable property at fire-sale prices or extend loans but with the risk of creating a massive toxic debt bubble already thought to be in excess of €7bn.
However, just as they were only too happy to grant developers further mortgages on properties already sold, banks are still willing to extend developer loans even those that are clearly distressed or delinquent. Such loan extensions are encouraging greedy developers to maintain artificially high prices (at least 30% too high). 90-day foreclosure procedures are supposed to kick-in on defaulters but rarely do in Cyprus.
Even establishment figures in the property market such as Antonis Loizou have been calling for developer foreclosures by the banks so as to bring Cyprus into line with the rest of the developed world.
Where Are the ‘Honest but Silent’?
IT IS OFTEN said that the only thing necessary for the triumph of evil is for good men to do nothing.
From what I know, there are decent developers, lawyers and agents in Cyprus who hate what they see going on among the ‘bad guys’ and the conspiracy of convenience with a grossly inefficient government administration; but they are scared to go public. Many of them tell me how much they admire what the Cyprus Property Action Group has done. We need to hear more public statements of support from the ‘honest but silent’ so as to publicly identify and isolate the wrongdoers.
If a cabal of dishonest lawyers exists, for example, why does a cabal of honest lawyers not stand up and denounce the ‘bad apples’ and insist that the CBA throws them out?
Without unequivocal action from those developers, lawyers and agents who do have integrity, I fear that Cyprus will continue to carry a general stigma that will continue to harm the economy.
A Way Forward?
THE DAMAGE to the property market inflicted collectively by bad developers and their lawyer cronies and the weak and flaccid authorities can only be countered by sustained action on the whole ‘system’. That includes the government stopping the banks in Cyprus from extending developer loans when they clearly have no means to repay.
CPAG has already advised the Interior Minister of a tried-and-tested formula to save developers from bankruptcy and all the terrible effects on buyers and the economy.
The Irish government, with full EU backing, has instituted a compulsory developer debt purchase scheme. A National Agency (using existing civil servants) to supervise the Cyprus property developer debt bubble and loosen the constipation of the market and tax revenues would also be a positive step in the gathering crisis.
The longer-term culture change at the population and industry levels will require time and persuasion. Bringing individual rogues to account in specific cases, however, warrants more immediate action and of a different kind. Unfortunately, the current attitude of the Bar Association and the Attorney General makes redress, both criminal and civil, that is normal in other EU countries hard to attain in Cyprus.
The ‘appeasement of wrong-doers’ argument favoured by some apologists is without merit and will only encourage bad developers and crooked lawyers to continue to ride roughshod over their luckless clients. Throughout history, appeasement of power-abusers and bullies of any kind has rarely worked. They can only be contained or crushed, not bought off or negotiated with.
Pressure and persuasion of the right kind do work. ‘Naming and shaming’ is one tactic against individual wrong-doers, which eventually hits them in the pocket if they fail to remedy the wrongs or to change for the good. If the professional bodies and the justice system fail to identify and root out dishonesty, it is likely that an angry and emboldened public will do it themselves.
A number of developers and lawyers who are alleged to be ‘bad apples’ have been identified on a variety of websites and blogs. Ultimately, there is no hiding place.
Apart from culling the ‘bad apples’, what is also needed, in effect, is an embedded cultural change in the property industry and the wider population. This will take many years. It can’t be bludgeoned into people.
Changing deep-seated attitudes and behaviours in a whole population can only come about if the population sees clear benefits from the change i.e. enlightened self-interest. Remember, the problem of rusfeti, ‘cheating’ i.e. fraud, cigar-cigar and laissez-faire does not just involve neatly packaged groups such as ‘bad developers’, ‘dodgy lawyers’, ‘low integrity bankers’ and ‘incompetent and inefficient civil servants’. These entities exist and flourish in a wider society that nourishes them.
The carrot is Cyprus’s return to economic prosperity and a respected status as a high integrity/high reputation investment location. The stick is economic decline and a low reputation among foreign buyers and investors.
A twin-track approach is needed involving the faster-paced pressure from CPAG, the EU, foreign governments, international media etc plus pro-active peer pressure from the honest but thus far silent individuals within the industry itself.
Conclusion
ONE MIGHT imagine that the Cyprus property market’s current Ice Age might have already concentrated minds and galvanized action to attract foreign buyers back by the industry cleaning up its own mess.
It was not compulsory that mastodons and dinosaurs should survive a sudden and lengthy change in climate. It is not compulsory that the Cyprus property market should survive a sustained loss of customers.
(This article first appeared in the Financial Mirror)
To read comments on this article from expats in Cyprus see the Cyprus Property News
Dr Alan Waring is an international risk management consultant with extensive experience in Europe, Asia and the Middle East with industrial, commercial and governmental clients. He is a Fellow of the Institute of Risk Management and is a founding member of the IRM Cyprus Regional Group. Contact info@dralanwaring-riskconsultants.com.
Corporate Risk and Governance: An End to Mismanagement, Tunnel Vision and Quackery
A letter to the editor published Cyprus Mail – Monday, June 7th 2010
Sir,
The Attorney-general’s decision not to prosecute the developers in the O’Dwyer house case (December 21) is both astonishing and disturbing. Your article quotes his decision as stating that “It has been ascertained that no criminal offence has been committed”. His Counsel stated that “it was not a case of fraud” until such time as a civil court could decide who the real owner of the house is and whether Mr O’Dwyer had been wrongfully and intentionally deprived of his money and his house.
It seems that the Attorney-general has decided that in Cyprus criminal law is now subordinate to civil law, whereas the long-standing position has been the reverse, as in English law. Where there is prima facie evidence of criminal activity, then criminal procedures should take precedence over civil. Indeed, it is standard for civil cases to await the outcome of related criminal cases so that a higher standard of proof (beyond reasonable doubt) has been tested. In the O’Dwyer case, there is the prima facie evidence of intentional fraud in that allegedly his house has been sold again to a third party without his prior knowledge or permission and his £75,000 sterling has not been returned to him.
Cyprus law references e.g. Neocleous (2000) state that in determining whether actions are fraudulent, the authorities ‘must concentrate on the acts committed and determine whether the taking was deliberate and intentional’. The general ‘lack of intent’ exemption from criminal liability therefore does not apply in this case since the developers allegedly (a) sold O’Dwyer’s property again after he had already paid, and (b) appear to be arguing that they have deliberately hung on to his money for all this time partly in order to punish him for daring to argue about terms in the contract. They have not, as far as we know, indicated any intention of returning his money.
An Attorney-general is supposed to ensure an unbiased administration and delivery of justice. Why this Attorney-general made this particular decision we will never know. However, this latest twist in the O’Dwyer case has not improved Cyprus’s bad reputation as an unsafe and insecure destination for investment, immovable property or otherwise.
Hundreds of cases of property fraud in Cyprus are swept under the carpet by well-connected developers or their smart-suited lawyers, while civil servants in the know throw their arms up in the air in despair.
FREEDOM of speech is taken for granted in Cyprus, with parts of the media often tolerating abusive remarks by politicians and government officials, while some editors and journalists commonly cross the thin line of libel, each time using the excuse of “public interest.”
However, when it comes to real cases of public interest, some media bosses and journalists occasionally bow to commercial interests or simply accept only one side’s view as a fact.
Such was the reporting a few weeks ago of the case of a single property owner duped by a crooked developer who was fed up of his arguments falling on deaf ears and decided to take the matter into his own hands – he and his family protested at the entrance of a high-profile property show in the U.K., causing the handful of Cypriot exhibitors to be embarrassed and labelling Cyprus as being “A Shame in the Sun”.
Local media hastily labelled the protestors as ‘rowdy’ and causing serious harm to the island’s lucrative property sector, but few actually cared to find out the real reason for the whole fuss.
Hundreds of cases of property fraud are swept under the carpet by well-connected developers or their smart-suited lawyers, while civil servants in the know throw their arms up in the air in despair. No wonder the Interior Minister is clueless when it comes to what is really happening in the property sector. Perhaps he should be less generous with incentives in the future as developers have been less than honest with him.
However, a sadder case was the news that the Cyprus Property Action Group has been ordered to shut down its website, because of allegedly libellous attacks against a leading developer in Paphos.
Furthermore, the owner of the Internet page is also being sued, while he has received threats of being placed on a black list and of being thrown in jail if he does not show up in court.
Is this Cyprus we are talking about or a dictatorial central African state where relatives, friends and money rule the day?
Surely, a public relations nightmare could have been turned around to resolve any case, as long as either side stuck to the basic rules of fairness, truth and goodwill? Unless, of course, some of these ingredients were not there. In which case, property developers could now face an even worse nightmare of harsher criticism and ruthless attacks on online communities and blogs.
Perhaps some property developers should at last consider adopting the rule “if it’s broke, fix it!”
To see comments from British expats read this article in the Cyprus Property News
Aldıkları villaya taşınmayı beklerken, bir başka İngiliz’e daha yüksek ücretle satılan evlerine giremeyen O’Dwyer ailesi, şimdi Surrey yakınlarındaki kiraladıkları evde yaşıyor. Anne Michaela 8 ve 13 yaşındaki iki kızının olaylardan çok etkilendiğini belirterek; “ailemizin tüm yaşantısı allak bullak oldu” dedi
Aldıkları villaya taşınmayı beklerken, bir başka İngiliz’e daha yüksek ücretle satılan evlerine giremeyen O’Dwyer ailesi, şimdi Surrey yakınlarındaki kiraladıkları evde yaşıyor. Anne Michaela 8 ve 13 yaşındaki iki kızının olaylardan çok etkilendiğini belirterek; “ailemizin tüm yaşantısı allak bullak oldu” dedi
O’Dwyer ailesi, Londra’ya 1,5 saat uzaklıkta yemyeşil Surrey bölgesinde yaşıyor. Daha önce de aynı bölgede 4 yatak odalı evleri varmış. Bu evi Kıbrıs’ın Güneyi’ne yerleşmek amacıyla satarak, parasını oraya yatırmışlar. Ancak istedikleri hiçbir şey planladıkları gibi gitmemiş. Conor ve eşi Michaela’nın biri 13, diğeri 8 yaşında Courtney ve Zoe adlı iki kızı var. 4 yıl önce çocuklarını Yunanca öğrensinler diye kursa yazdıran çift, şimdi o günleri anmak bile istemiyor.
YENİDEN BAŞLAMA MÜCADELESİ
Leatherhead yakınlarındaki evlerinde, bıraktıkları yerden hayata yeniden başlama mücadelesindeler. Baba Conor, 40 yaşında, ithalat yapan bir işadamı.. Güney Kıbrıs’ın AB’ye üye olması ve orasını askerlik günlerinden tanıması nedeniyle, Dikelia üssüne yakın bir yerde ev aradıklarını söylüyor. Adaya yaptıkları seyahatlerden birinde Paralimni yakınlarındaki yeni siteyi gezip, planlarını incelerler. Ve burasını beğenip, almaya karar verirler.
3 YILLIK HAKSIZLIK
Conor O’Dwyer, neredeyse son 3 yılını villasıyla ilgili uğradığı haksızlığa adamış durumda. İnternette açtığı web sayfasının bir hayli takipçisi var. www.shameoncyprus.com’a girerseniz bağlantılı linklerini, başından geçenleri, belgelerini orada okuyabilir, görebilirsiniz.
Eski asker, hem acı tecrübe yaşamanın ağırlığını taşıyor. Hem de bir yerde; “iyi ki gençmişiz. Biz her şeye yeniden başlayabiliriz. Ya bizim gibi aldatılan, dolandırılan yaşlılar ne yapsın” diyerek, bir parça teselli bulmaya çalışıyor.
İŞ KURACAKTI
Evinden ithalat yapan Conor O’Dwyer, aynı işini Kıbrıs’ta da devam ettirecek, internet üzerinden hediyelik eşya ve başka şeyler pazarlayacaktı. Ayrıca eşiyle Aya Napa yakınlarında bir de dondurma yeri açmak istiyorlardı. Ancak tüm hayalleri, villa skandalıyla son buldu.
“ ‘BAŞINI KOPARTALIM’ DİYE BAĞIRDILAR”
“Tanıştığımız Rum müteahhit Christophes Karayiannas ve oğlu Marios bize çok yakınlık gösterdiler. Hele baba Karayiannas, çocuklarımı dizlerinde zıplatıp, sitede çocuk parkı, yüzme havuzunu nereye yapacaklarını bize neşeyle anlatıyordu. Şimdi bunlar aklıma geldikçe çok sinirleniyorum. Bir aileyle böyle nasıl oynanır? Nasıl gözümüze baka baka yalan söylerler? İşin en acı yanı, Karayiannas, 1974’de Kuzey’den kaçtığını ve geride kalan köyünün adını bu siteye verdiğini söylemişti. Sitenin adı Ayios Sergios’du. Müteahhit bir yerde Türkleri suçlarken, köyünün adını verdiği sitede bize satıp, yarı parasını aldığı villamızı bir başkasına ikinci defa satmakta sakınca görmemişti. Paramız bankasında, baba-oğul bana iki kere saldırdılar. ‘Başını kopartalım, kolunu kıralım’ diye Rumca bağırdıkları videolar internette. Ve açtığım dava Baş Savcı tarafından ‘kriminal’ suç unsuru olmadığından ceza davası kabul edilmedi. Sivil mahkemeye gitmem söylendi. Bu nasıl bir standart? Son 4 yılda en az 20-25 kere adaya gittim. Saldırıya uğrayıp, hastanelik oldum. Ne sesimi duyan oldu, ne paramı geri alabildim. Zaten müteahhit bana ilk yazdığı mektupta paramın bir kuruşunu bile geri alamayacağımı yazmıştı”.
100 BİN STERLİN TAZMİNAT
COnor O’Dwyer, anlattıkça kızıyor, kızdıkça duygusallaşıyor. Eşi Michaela sık sık söze giriyor. Çocuklar okuldan gelmeden bu konuşmaları yapmamız gerekiyor. Onların daha fazla üzülmesini haklı olarak istemiyorlar. Aile bu işten baştan sona çok etkilenmiş durumda.
Baba O’Dwyer’ı en fazla kızdıran ise Baş Savcının kararı. 2006 ve 2008’de iki kere baba-oğlun saldırısına uğrayan, hastanelik olan eski asker, her saldırıyı videoya almış ve bunu sitesinde ve Youtube’ta gösteriyor. Zaten müteahhitleri en fazla kızdıran da bu davranışı. Onlar da villa için ödedikleri 100 bin sterlinin üzerine yatmışlar, tabiri yerindeyse.
‘HEM SAVCI, HEM YARGIÇ OLDULAR’
“Ödediğimiz tüm para 100 bin Sterlin. Bundan sonra zaten ödeme almadılar bizden. Çünkü bir başka İngiliz’e Michelle McDonald’a evi daha fazlasına satmış. Bizden aldığı parayı, internetteki yayınlardan dolayı kendilerine tazminat olarak değerlendirmiş ve vermemeye karar vermişler. Bana söyledikleri bu. Hem yargıç, hem savcılık yaptılar. Güney Kıbrıs’ta on binlerce İngiliz’in evi var. Benim gibi mağdur çok sayıda insan var. Ne yazık ki Rum makamları İngilizlere adil, eşit davranmıyor. Kendileri için yasaları kullanıyorlar, ancak yabancıları korumuyorlar. Şimdi de baba-oğlun sesini kaydettiğim, filmlerimi çektiğim için beni dava ettiler. İnsan haklarını çiğnediğim için. Benim insan haklarımı düşünen yok bu arada. Bu bana ve aileme en büyük hakarettir. Güneyde mal sahiplerini koruyan kanunlar var. Ancak bize uygulanmıyor”
“ORAMSLAR SALDIRIYA UĞRAMADI”
Orams davasını yakından izleyen Conor O’Dwyer, kendi davalarıyla onlarınkini karşılaştırıyor. “Onların evini en azından işgal eden biri olmadı. Orams çifti bizim gibi saldırıya uğramadı” diyor. Güney Kıbrıs’ta tüm emlak acentelerinin durumlarını bildiğini kaydeden eski asker, konuşmasını şöyle tamamlıyor;
“ İngiltere’deki bölge milletvekilim ve Avrupa Parlamentosu Milletvekilim davamızı baştan sonra biliyor ve durumu nefretle karşılıyorlar. Beni destekliyorlar. Durumdan İngiliz Dışişleri Bakanlığı da haberdar. Hakkımda 5 ayrı dava var. Ailemin maddi, manevi tüm yaşamı allak bullak oldu. Güneyden ev alacaklara tavsiyem bizim düştüğümüz duruma düşmemek için plandan ev alıp, paralarını kaptırmasınlar. İkinci defa satılan, bitmiş emlak alıp, tapusunu üzerlerine geçirsinler. İnternetten çok destek mesajı geliyor. Adalete inanıyoruz. Davamızı kazanacağımızı umuyoruz”
