DISSENTING OPINION OF JUDGE KARAKA Åž

(Translation)

Unlike the majority, I consider that the objection of non-exhaustion of domestic remedies raised by the Government should not have been rejected. Consequently, I cannot agree with the finding of violation s of Article 1 of Protocol No. 1 and of Article 8 of the Convention.

The rule of exhaustion of domestic remedies is intended to give Contracting States the opportunity to prevent or provide redress for violations alleged against them before such allegations are referred to the Court. That reflects the subsidiary n ature of the Convention system.

Faced with the scale of the problem of deprivations of title to property alleged by Greek Cypriots (approximately 1,400 applications of this type lodged against Turkey), the Court, in the operative part of its Xenides ‑ Arestis v. Turkey judgment of 22 December 2005, required the respondent State to provide a remedy guaranteeing the effective protection of the rights set forth in Article 8 of the Convention and Article 1 of Protocol No. 1 in the context of all the similar cases pending before it. The State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41 of the Convention, but also to select the general or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The Government submitted that by enacting the Law on Compensation for Immovable Properties (Law no. 67/2005) and setting up a Commission to deal with compensation claims it had discharged that obligation (see also Xenides ‑ Arestis v. Turkey (just satisfaction), no. 46347/99, § 37 , 7 December 2006 ). It is that domestic remedy which, in their submission, the applicant failed to exercise in the present case.

The exhaustion of domestic remedies is normally assessed at the time when an application is lodged with the Court. However, there are exceptions to the rule which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001-V (extracts)) .

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

In other examples the Court also took 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 had not been exhausted (see the following decisions: Nogolica v. Croatia , no. 77784/01, ECHR 2002-VIII ; Slaviček v. Croatia , no. 20862/02, ECHR 2002-VII ; Andrášik and Others v. Slovakia , nos. 57984/00, 60226/00, 60242/00, 60679/00, 60680/00 and 68563/01 , ECHR 2002-IX ; and Içyer v. Turkey , no. 18888/02, ECHR 2006-I ).

In situations where there is no effective remedy affording the opportunity to complain of alleged violations, individuals are systematically compelled to submit to the European Court of Human Rights applications which could have been investigated first of all within the domestic legal order. In that way, the functioning of the Convention system risks losing its effectiveness in the long term (the most pertinent example is the Broniowski v. Poland case ([GC], no. 31443/96, ECHR 2004 -V ).

In my opinion the above exa mples provide an opportunity to review the conditions for admissibility in the event of a major change in the circumstances of the case. For the similar post- Loizidou cases , the Court can always reconsider its admissibility de cision and examine the preliminary objection of failure to exhaust domestic remedies.

Since the Court may reject “ at any stage of the proceedings ” (Article 35 § 4 of the Convention) an application which it considers inadmissible, new facts brought to its attention may lead it, even when examining the case on the merits, to reconsider the decision in which the application 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. 29958/96, 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 de cision may prompt the Court to reconsider that decision.

I consider that the Law on Compensation for Immovable Properties (Law no. 67/2005) and the Commission set up to deal with compensation claims, which are based on the guiding principles laid down by the Court in the Xenides-Arestis case, are capable of providing an opportunity for the State authorities to provide redress for breaches of the Convention ’ s provisions, including breaches alleged in applications already lodged with the Court before the Act ’ s entry into force (see Içyer , cited above, § 72). That consideration also applies to applications already declared admissible by the Court (see Azinas , cited above).

In order to conclude whether there has or has not been a breach of the Convention, complainants must first exercise the new domestic remedy and then, if necessary, lodge an application with the European Court of Human Rights, the international court. Following that logic, I cannot in this case find any violation of the Convention ’ s provisions.