PARTLY DISSENTING OPINION OF JUDGE KARAKAÅž

( Translation )

Unlike the majority, I take the view that the objection raised by the Government as to non-exhaustion of domestic remedies should not have been rejected and that there has been no violation of Article 1 of Protocol No. 1 in the present case.

The requirement to exhaust domestic remedies is intended to afford Contracting States the opportunity to prevent or provide redress for alleged violations before they are referred to the Court. That reflects the subsidiary nature of the Convention system.

To assess whether domestic remedies have been exhausted the Court will normally consider those available at the time when the application is lodged. However, there are exceptions to that rule which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47 , ECHR 2001 ‑ V) .

Examples of such exceptions are to be found in the cases against Italy which raised similar questions and in which Court found that certain specific facts justified depart ing from the general principle (see Brusco v. Italy (dec.), no. 69789/01 , ECHR 2001 ‑ IX ).

In other examples, the Court has also taken the view, in the light of the specific facts of the cases concerned and having regard to the subsidiary nature of the Convention mechanism, that new domestic remedies have not been exhausted (see Nogolica v. Croatia (dec.), no. 77784/01 , ECHR 2002 ‑ VIII ; Slavi č ek v. Croatia (dec.), no. 20862/02 , ECHR 2002 ‑ VII ; Slavi č ek v. Croatia (dec.), no. 20862/02 , ECHR 2002 ‑ VII ; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00 , ECHR 2002 ‑ IX ; and İçyer v. Turkey (dec.), no. 18888/02 , ECHR 2006 ‑ I ).

Since the Court may reject “ at any stage of the proceedings ” (Article 35 § 4 of the Convention ) an application which it considers inadmissible, any new facts brought to its attention may lead it, even when examining the case on the merits, to reconsider the decision in which the case was declared admissible and ultimately declare it inadmissible pursuant to Article 35 § 4 of the Convention , taking due account of the context (see, for example, Medeanu v. Romania (dec.), no. 29985/96, 8 April 2003, and Azinas v. Cyprus [GC], no. 56679/00, § § 37-43 , ECHR 2004 ‑ III ).

The existence of a “ new fact ” which has come to light after the admissibility decision may prompt the Court to reconsider that decision.

This is the idea that has been developed in my dissenting opinions (see, for example, Solomonides v. Turkey , no. 16161/90 , 20 January 2009 ; Alexandrou v. Turkey , no. 16162/90 , 20 January 2009 ; Iordanis Iordanou v. Turkey , no. 43685/98 , 22 September 2009 ; and Anthousa Iordanou

v. Turkey , no. 46755/99 , 24 November 2009 ) concerning the objection of non-exhaustion of domestic remedies in judgments on the merits for violations of Article 1 of Protocol No. 1 predating the Grand Chamber ' s decision of 1 March 2010 in the case of Demopoulos and Others v. Turkey ((dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04 , ECHR 2010 ‑ ... ).

In my view, that reasoning is all the more applicable in the context of the present application, Lordos and Others , which was lodged on 20 December 1989, declared admissible on 27 June 2000, adjourned on 2 June 2009 and heard on the merits on 5 October 2010.

The case of Lordos and Others is the only one in which the Court had not ruled on the merits before the Grand Chamber gave its decision in Demopoulos and Others .

Unlike judgments concerning just satisfaction, which fall solely under Article 41 of the Convention (see, for example, Solomonides v. Turkey (just satisfaction), no. 16161/90 , 27 July 2010 , and Economou v. Turkey (just satisfaction), no. 18405/91 , 22 June 2010 ), in the case of Lordos and Others there is no res judicata preventing the pursuit ( Solomonides v. Turkey (just satisfaction), no. 16161/90 , §18 , 27 July 2010 ) of its examination in accordance with the Grand Chamber ' s decision in Demopoulos and Others.

The new fact in the context of the Lordos and Others case is no longer merely the existence of Law no. 67/2005 concerning compensation for immovable property or the work of the Commission established under that law.

The new fact to be taken into account is the case-law that our Court has developed in the meantime, that is to say between the decision on admissibility and the decision on the merits of the case. The Court, as I have argued in my dissenting opinions, may always reverse its admissibility decision (see Azinas , cited above), and that position is not at odds with the approach preferred by the Chamber concerning the application of a Grand Chamber decision to a case where a decision on the merits is pending.

Moreover, in the Demopoulos and Others decision: “the Court maintains its view that it must leave the choice of implementation of redress for breaches of property rights to Contracting States, who are in the best position to assess the practicalities , priorities and conflicting interests on a domestic level ...” (§ 118).

That finding by the Court gives rise to questions that are both essential and difficult for an international court: the reality of the property claims and the victim status of the applicants.

In my opinion, the present case of Lordos and Others encompasses some very complex factual and legal points.

The question of property belonging to the V akif (a feature of Ottoman law that dates back 500 years and is still valid in Cyprus ) constitutes a difficult issue on account of its legal and factual aspects. For that reason, I

consider that the third-party intervention requested by the “Evkaf Administration” could have been granted for the purpose of clarifying the situation (see paragraph 9 of the judgment).

I have serious doubts about the title to the properties concerned by the application. The Grand Chamber also expressed similar doubts in the case of Demopoulos and Others (§ 111):

“At the present point, many decades after the loss of possession by the then owners, property has in many cases changed hands, by gift, succession or otherwise; those claiming title may have never seen, or ever used the property in question. The issue arises to what extent the notion of legal title, and the expectation of enjoying the full benefits of that title, is realistic in practice. The losses thus claimed become increasingly speculative and hypothetical .”

This wise statement of the Court clea rly illustrates the impossible mission of an international jurisdiction.