Myra Xenides- Arestis v. Turkey

22 XENIDES-ARESTIS v. TURKEY DECISIONno. 33592/96, § 47, ECHR 2001-V, and Giacometti and Others, op. cit.).They submit that in the present application there is ample justification fordeparture from this rule. The point of crystallisation for the purposes ofassessing domestic remedies is not the date of the filing of the applicationbut when the admissibility of the application is considered. Since the instantapplication has not yet been declared admissible and there is an availabledomestic remedy, it is incumbent upon the applicant to pursue her claimbefore the Commission.The respondent Government contend that awards of compensationextend to all cases of expropriation dating back to 1974, no restrictionexisting under the new law on the filing of an application by the applicant inthis case. Furthermore, they aver that the “Law” does not retrospectivelyestablish criminal responsibility or impose penalties as prohibited underArticle 7 of the Convention. Nor is there a presumption againstretrospectivity or hardship that would follow as a result thereof in this case.On the contrary, the respondent Government note that a new remedialmechanism is establishing for the purposes of securing the rights ofclaimants.Finally and without prejudice to their position as to the lack ofjurisdiction, the respondent Government request the Court to use its powerunder Article 37 of the Convention to strike out the present application,signalling in its judgment that the applicant, as others in Loizidou-typecases, should proceed by way of recourse to the CompensationCommission.(ii) Availability, effectiveness and adequacy of the new remedy proposed under“Law no. 49/2003”The Government maintain that in the light of the new law enacted andadopted on 30 June 2003 by the “TRNC Parliament” and the compensationcommission established under its provisions, the applicant needs to exhaustdomestic remedies as required by Article 35 of the Convention. In thisconnection, they also argue that since a procedure now exists, recourse towhich, would provide redress for the applicant's claims under Article 1Protocol No. 1, the applicant can no longer be considered as a victim withinthe meaning of Article 34 of the Convention.According to the respondent Government, the purpose of the Law is toregulate the necessary procedure and conditions to be complied with bypersons in order to prove their legal rights which they claim in respect ofimmovable properties that fall within the scope of Article 159 (4) of the“TRNC Constitution” as well as the basis on which compensation shall bepaid to such persons. All immovable properties in northern Cyprus, withinthe boundaries of the “TRNC”, belonging to Greek Cypriots which hadbeen described by existing laws as “abandoned” properties, now comewithin the scope of Section 3 of the Law. Consequently, Greek Cypriots,