Myra Xenides- Arestis v. Turkey

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24 XENIDES-ARESTIS v. TURKEY DECISIONThe respondent Government submit that with reference to the Court'sjurisprudence, there is no requirement of specific restitution as aprecondition for the adequacy of a domestic remedy. States are afforded awide margin of appreciation when it comes to balancing the interests ofsociety with the interests of the claimant (Broniowski, op. cit.).Concerning the commission's operation and procedure, the respondentGovernment argue that they meet the requirements of Article 6 of theConvention. Specifically, applicants to the commission will have anopportunity to present their case, supported by evidence, and to respond toany submissions for the “TRNC Attorney-General” advanced in the name ofthe State. The application process is simple and easily accessible in view ofthe open borders between northern and southern Cyprus. Further, both theprocedures and decisions of the commission are subject to the possibility ofjudicial review by the “High Administrative Court”. In this regard, theystate that the Convention forms part of the laws of Cyprus and is applicablein the “TRNC” courts as are the principles of international law. In thisregard, they point out that the Law “was the outcome of close consultationswith the Directorate of Human Rights of the Council of Europe focused onimplementing a domestic remedy to address claims in respect of immovableproperty in northern Cyprus by members of the Greek-Cypriot community”.As a consequence, inter alia, of the application of the Convention in the lawof northern Cyprus, and the cognizance taken of it by the “TRNC” courts,the procedural and due process safeguards of the Convention will beavailable to the applicants. Furthermore, they maintain that is also possibleto file complaints before the Court, challenging the compatibility with theConvention of the decisions of the High Administrative Court.With regard to the constitution of the commission, its independence andimpartiality, the respondent Government note that its members include theformer President of the “TRNC Supreme Court” (Chairman), a lawyer andformer judge of international reputation (Deputy Chairman) and former lawofficers and directors of the “TRNC Department of Lands and Surveys”.They assert that there is no justification for the Cypriot Government'ssubmissions in this respect. The respondent Government consider that it isunnecessary to go into the biographical details of its current members butnote that there are material errors of fact in the personal information on itsmembers as set out in the observations of the Cypriot Government. Therespondent Government accept that the failure of a member of thecommission to declare any interest in the matter that comes before themwould give rise to questions under Article 6 of the Convention. However,they state that the possibility that such questions may arise at somehypothetical point in the future is not sufficient to sustain an allegation of alack of independence and impartiality of the commission per se at this point.They aver that the applicant's and Cypriot Government's allegations as tolack of independence or impartiality are premature. Even if the commission
XENIDES-ARESTIS v. TURKEY DECISION 25did not itself comply fully with the requirements of Article 6 of theConvention, the existence of an appellate mechanism to the HighAdministrative Court would cure any defect. In accordance with the Court'sjurisprudence it is clear that the impartiality of its members is to bepresumed unless and until there is proof to the contrary.In view of the fact that the function of the commission is limited toawarding compensation to meritorious claimants and not deciding ondisputes as to title, the Government maintain that its members will not havea personal interest flowing from any property interests of their own. Whilethe respondent Government state that they would expect that a commissionmember who had a direct interest in property that was subject to a particularclaim would excuse himself/herself from the proceedings, it does not followmerely from the fact that certain members have interests in property thatmay hypothetically be the subject of a claim, that they will act with biaswith regard to claims in general. The respondent Government contend thatthe situation regarding property in Cyprus is complex and thus it would notbe possible for anyone living on the island, whether Greek-Cypriot orTurkish-Cypriot, to detach themselves entirely from the issues. Further, thebias will not be presumed simply by reference to the tenure of appointmentof its members and other similar factors (Campbell and Fell v. the UnitedKingdom, judgment of 28 June 1984, Series A no. 80, § 79, and Morrisv. the United Kingdom, no. 38784/97, § 38, ECHR 2002-I).The respondent Government point out that the remedies available in the“TRNC” should be considered as domestic remedies of the Government andthat they should be exhausted by Greek-Cypriot applicants before resortingto this Court, just as Turkish Cypriots who have property in southernCyprus have to exhaust domestic remedies available therein. In thisconnection, they refer to the findings of the Court in the case of Cyprus v.<strong>Turkey</strong> (op. cit.) where the Court observed that despite the reservations theGreek-Cypriot community in northern Cyprus may harbour regarding“TRNC” courts, the absence of such institutions would work to thedetriment of the members of that community and thus, the remediesavailable in the “TRNC” may be regarded as domestic remedies of the Stateand that the question of their effectiveness is to be considered, in thespecific circumstances where it arises (§§ 90-92, 102). The existence ofmere doubts as to the prospects of success of the particular remedy which isnot obviously futile is not a valid reason for failing to exhaust domesticremedies (Giacometti and Others v. Italy (dec.), no. 34939/97,ECHR 2001-XII). The respondent Government submit that the arguments ofthe applicant and the Cypriot Government as to the inadequacy of theremedy on the grounds of flawed procedures and conflicts of interest areentirely speculative and premature. In particular, any challenge to theCompensation Commission, its composition, procedure and decisions mustaddress actual shortcomings.
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Myra Xenides- Arestis v. Turkey

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