PARTLY DISSENTING OPINION OF JUDGE BIANKU

I agree with the finding of a violation of Article 1 of Protocol No. 1 in this case. However, I do not agree with the conclusion of the majority as to points 5 and 6 of the operative part. I think that the Chamber should have reserved the Article 41 issue, with a view to possibly deciding later on the applicant ’ s claim for pecuniary damage in the event that the IPC procedure continues to be ineffective.

The choice adopted by the majority, firstly, does not reflect the case-law of the Court in similar cases; secondly, it does not take duly into account the circumstances of the case.

As to the first reason, the consistency of the case-law, it is sufficient to observe that in two recent Grand Chamber judgments concerning very similar violations of Article 1 of Protocol No. 1 because of situations resulting from armed conflicts, the Court reserved the issue of Article 41 (see Sargsyan v. Azerbaijan [GC], no. 40167/06, § 283, ECHR 2015, and Chiragov and Others v. Armenia [GC], no. 13216/05, § 224, ECHR 2015). In my opinion, the “merely” procedural nature of the violation is not such an exceptional circumstance as to justify departing from the approach adopted in those cases, an approach which constitutes the long-standing case-law of the Court (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34-46, Series A no. 330 ‑ B). The “procedural” breach at issue in fact led to the ineffectiveness of the IPC remedy in the applicant ’ s case. Accordingly, this remedy was not able to address the applicant ’ s property claim, and therefore the approach applied in other TRNC cases in which the IPC remedy was not effective should have been applied. In those cases the Court reserved the question of Article 41 and later determined the issue of pecuniary damage separately (see, for instance, the judgments in the case of Xenides-Arestis v. Turkey , no. 46347/99 , § 36, 22 December 2005 (merits), and Xenides-Arestis (just satisfaction), 7 December 2006). This approach would not mean that today ’ s judgment contests the conclusion reached in Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, ECHR 2010) that the procedure before the IPC is a priori an effective remedy. But at the same time it would confirm that, where the Court considers that certain remedies are effective and therefore must be exhausted, the national authorities must consistently secure the effective operation of those remedies, such as the procedure before the IPC, to all individuals in all cases. Thus, while the procedure before the IPC remains a priori an effective remedy, cases like Demopoulos should not be interpreted to mean that the national authorities obtain an “increased margin of violation” in the name of subsidiarity and that the Court has given away all control over the way the Convention rights are applied in practice.

Secondly, I do not think that the solution offered by the majority in this case takes duly into account the circumstances of the case. Let me recall that the applicant was gifted several plots of land by her mother and aunt. These plots are located in Koma Tou Yialou (Kumyali), and her family lost effective use of their properties following the Turkish military intervention in northern Cyprus in July and August 1974 (see paragraph 7 of the judgment, with the references contained therein) and have not been able to access or use them since then. That was some forty-three years ago. Almost ten years ago the applicant initiated proceedings before the IPC with a view to obtaining compensation (see paragraph 13 of the judgment). In both Sargsyan and Chiragov , cited above, the Grand Chamber observed in relation to Article 1 of Protocol No. 1 that “the situation has continued to exist over a very lengthy period” (see Sargsyan , § 240, and Chiragov , § 200). If in those cases the expression “very lengthy” applied to situations that had continued since 1991, a fortiori it should apply to situations that have continued since 1974. Throughout all those years the applicant and her family have not had access to their properties. What can justify an invitation to wait almost fifty years to have access to one ’ s properties or to be compensated instead? As the majority rightly conclude in paragraphs 103 and 104 of the judgment, the proceedings before the IPC were so lengthy that they were in violation of Article 1 of Protocol No. 1. In these circumstances it seems to me inappropriate to give no other option to the applicant but to wait for a solution which, in her case, has proved ineffective for almost ten years and therefore in violation of Article 1 of Protocol No. 1. If the issue of Article 41 had been reserved there would still be some hope that if the IPC proceedings continue to drag on and prove ineffective, as they have until now in the applicant ’ s case, judicial proceedings in Strasbourg would continue on the main issue of the case, namely compensation. Now they have become a remote possibility because the applicant would have to make a fresh application on the same subject-matter should the IPC continue to drag its feet.

For these reasons I believe that reserving the Article 41 issue in this case would have been the sound solution based on our case-law and the fairest approach to the resolution of the applicant ’ s claims and the effective protection of her property rights, in view of a violation that has continued to exist over a very, very lengthy period.

[1] Unit of area used in the Ottoman Empire and still used, in various standardised versions, in many countries which were formerly part of the Ottoman Empire. It was defined as “forty standard paces in length and breadth”, but varied considerably from place to place. It is considered to be the equivalent of about a quarter of an acre. See Demopoulos and Others v. Turkey (dec.) [GC], no. 46113/99, ECHR 2010 at paragraph 12, footnote 1.