R.R. H.P. CONCURRING OPINION OF JUDGE WILDHABER JOINED BY JUDGE RYSSDAL
DISSENTING OPINION OF JUDGE BERNHARDT JOINED BY JUDGE LOPES ROCHA
DISSENTING OPINION OF JUDGE BAKA
DISSENTING OPINION OF JUDGE JAMBREK
DISSENTING OPINION OF JUDGE PETTITI
DISSENTING OPINION OF JUDGE GSLCKLS
There was no need for the Court to give an express answer to Turkey's claim that the "TRNC" was established by the Turkish Cypriot people in pursuance of their right to self-determination (see paragraph 35 of the Judgment). That claim must indeed fail.
Until recently in international practice the right to self-determination was in practical terms identical to, and indeed restricted to, a right to decolonisation. In recent years a consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way. If this description is correct, then the right to self-determination is a tool which may be used to re-establish international standards of human rights and democracy.
In the instant case, the Court is faced with an applicant who alleges violations of certain Convention guarantees; with the Respondent Turkish Government which alleges a right to self-determination of the "TRNC" in order to disclaim responsibility for a violation of certain Convention guarantees; and with an international community which refuses to recognise the entity which claims a right to self-determination (the "TRNC").
When the international community in 1983 refused to recognise the "TRNC" as a new state under international law (see paragraph 42), it by the same token implicitly rejected the claim of the "TRNC" to self-determination in the form of secession. At that time the close connection between the right to self-determination and the observance of international standards with respect to human rights and democracy was not established to the same extent as today. The "TRNC" is constituted by what was originally a minority group in the whole of Cyprus (i.e. the "Turkish Cypriots") but what is now the majority in the northern part of Cyprus. This group invokes a right of self-determination which under the 1985 Constitution is denied by them to the "Greek Cypriots" living in the territory of the "TRNC". This leads me to the conclusion that where the modern right to self-determination does not strengthen or re-establish the human rights and democracy of all persons and groups involved, as it does not in the instant case, it cannot be invoked to overcome the international community's policy of non-recognition of the "TRNC".
I have voted for accepting the preliminary objection ratione temporis and against the finding of a violation of Article 1 of Protocol No. 1. Before I discuss the two main aspects of the case, some general remarks are, in my view, indispensable.
1. A unique feature of the present case is that it is impossible to separate the situation of the individual victim from a complex historical development and a no less complex current situation. The Court's judgment concerns in reality not only Mrs. Loizidou, but thousands or hundreds of thousands of Greek Cypriots who have (or had) property in northern Cyprus. It might also affect Turkish Cypriots who are prevented from visiting and occupying their property in southern Cyprus. It might even concern citizens of third countries who are prevented from travelling to places where they have property and houses. The factual borderline between the two parts of Cyprus has the deplorable and inhuman consequence that a great number of individuals are separated from their property and their former homes.
I have, with the majority of the judges in the Grand Chamber, no doubt that Turkey bears a considerable responsibility for the present situation. But there are also other actors and factors involved in the drama. The coup d'Etat of 1974 was the starting point. It was followed by the Turkish invasion, the population transfer from north to south and south to north on the island, and other events. The proclamation of the so-called "Turkish Republic of Northern Cyprus", not recognised as a State by the international community, is one of those events. The result of the different influences and events is the "iron wall" which has existed now for more than two decades and which is supervised by United Nations forces. All negotiations or proposals for negotiations aimed at the unification of Cyprus have failed up to now. Who is responsible for this failure? Only one side? Is it possible to give a clear answer to this and several other questions and to draw a clear legal conclusion?
The case of Mrs. Loizidou is not the consequence of an individual act of Turkish troops directed against her property or her freedom of movement, but it is the consequence of the establishment of the borderline in 1974 and its closure up to the present day.
2. Turkey has accepted the jurisdiction of the Court only in respect of the facts which occurred subsequent to 22 January 1990. Such a limitation excludes an inquiry into and final legal qualification of previous events, even if these were incompatible with a State's obligation under the Convention.
The Convention organs have accepted the notion of "continuing violations", violations which started prior to the critical date andùwhich still continue. I entirely agree with this concept, but its field of application and its limits must be appreciated. If a person is kept in prison before and after the critical date, if concrete property is illegally occupied before and after that date (as in the Papamichalopoulos judgment of 24 June 1993, Series A no. 260-B), there can be no doubt that it falls within the Court's jurisdiction to examine facts and circumstances which have occurred after the date in question. The essential fact in such cases is the actual behaviour of State organs which is incompatible with the commitments under the European Convention of Human Rights.
The factual and legal situation is in my view different when certain historical events have given rise to a situation such as the closing of a borderline with automatic consequences for a great number of cases. In the present case, the decisive events date back to the year 1974. Since that time, Mrs. Loizidou has not been able to visit her property in northern Cyprus. This situation continued to exist before and after the adoption of the Constitution of the so-called "Turkish Republic of Northern Cyprus" of 1985 and the expropriation proclaimed therein. I share the doubts of the Court (see paragraphs 45-47 of the judgment) concerning the validity of the expropriation; however this is not decisive. Turkey has recognised the jurisdiction of the Court only "in respect of facts ... which have occurred subsequent to the date of deposit of the present declaration"; the closing of the borderline in 1974 is in my view the material fact and the ensuing situation up to the present time should not be brought under the notion of "continuing violation".
Therefore, the preliminary objection ratione temporis raised by Turkey is in my view legally well-founded.
3. Even if I had been able to follow the majority of the Court in this respect, I would still be unable to find a violation of Article 1 of Protocol No.ù1. As explained above, the presence of Turkish troops in northern Cyprus is one element in an extremely complex development and situation. As has been explained and decided in the Loizidou judgment on the preliminary objections (23 March 1995, Series A no. 310), Turkey can be held responsible for concrete acts done in northern Cyprus by Turkish troops or officials. But in the present case, we are confronted with a special situation: it is the existence of the factual borderline, protected by forces under United Nations command, which makes it impossible for Greek Cypriots to visit and to stay in their homes and on their property in the northern part of the island. The presence of Turkish troops and Turkey's support of the "TRNC" are important factors in the existing situation; but I feel unable to base a judgment of the European Court of Human Rights exclusively on the assumption that the Turkish presence is illegal and that Turkey is therefore responsible for more or less everything that happens in northern Cyprus.
In the present case it is extremely difficult to determine whether, on the one hand, the violation complained of by the applicant has been a continuous one or whether, on the other hand, there has been an instantaneous expropriation of the applicant's property with continuing effects. I agree with the majority that the answer to this question has direct consequences for deciding the Government's preliminary objection ratione temporis.
On the basis of the facts of the case, I have come to the conclusion that Mrs Loizidou lost overall control of her property as a direct consequence of the Turkish military action in 1974. Since that time she has not been able to possess, to use and enjoy her property in any way nor even have access to it. It can thus be said that there has been a form of de facto expropriation. However, between the period 1974 and 1985 the applicant still held legal title to her land. She purportedly lost ownership by the formal act of expropriation pursuant to Articles 159(1) of the "TRNC" Constitution of 7 May 1985 which sought to regularise the existing de facto situation.
Although I share the view of the Court concerning the non-recognition of the "TRNC" by the international legal community and the legal consequences flowing from this, I am also of the opinion that its legal provisions "have been invoked by the Turkish Government". In the instant case the legal situation in respect of property issues is very close to those of the former communist states in Central and Eastern Europe. In those countries - which, it must be borne in mind, were internationally recognised states - there had been a long process of expropriation of property by nationalisation legislation and other legal means. These actions, which led to enormous property rearrangements in the countries concerned, cannot always be justified by simply referring to the fact that those States had been recognised by the international community at the relevant time.
On the other hand, Article 159 of the "TRNC" Constitution and certain other legal provisions cannot be completely set to one side as devoid of all effect merely on the basis of the international non- recognition of the entity in northern Cyprus. It is rightly said in paragraph 45 of the judgment that international law recognises the legitimacy of certain arrangements and transactions in such a situation the "effects of which can be ignored only to the detriment of the inhabitants of the territory". The full implications of this view, however, - as the recent and very different legal arrangements in the former communist states as regards property matters clearly show - are still very much open to interpretation. Nevertheless the principle has some application in the field of real property in a situation such as that pertaining in the "TRNC" where it can be said that the interests of the community required, if not necessitated, some form of regularisation. In my view it is open to the Court to have regard to this principle in the context of the dispute as to whether there is a continuing situation without endorsing or recognising the legitimacy of the totality of the property rearrangements effected by the "TRNC"in 1985. Bearing in mind the de facto nature of the expropriation of the applicant's property up to 1985 as well as the relevant provisions of the 1985 Constitution affecting that property, I am unable to share the Court's opinion that the applicant's complaint concerns a continuing situation. Since the Court's jurisdiction only concerns matters occurring subsequent to 22 January 1990, the Government's objection ratione temporis must be considered to be well-founded.
1. In its decision on the preliminary objections in the present case the Court joined to the merits the objection ratione temporis. It was of the opinion that the correct interpretation and application of the relevant restrictions raised difficult legal and factual questions which were closely connected to the merits of the case (paragraphs 103 and 104 of the judgment of 23 March 1995).
It follows that the Court had first to examine the applicant's allegations of a continuing violation of her property rights subsequent to 22 January 1990. That examination entailed an assessment as to whether the applicant could still be regarded as the legal owner of the land, which in turn depended upon a prior clarification of the manner in which the loss of her ownership occurred - or did not occur - before that date. In particular, did it occur by way of an instantaneous act, and if so, by which act, or did she lose her property as a result of a longer process, ending in an irreversible expropriation, possibly by virtue of Article 159 of the "TRNC" Constitution of 7 May 1985?
2. I was unable to subscribe to the finding of the majority of my colleagues that Mrs Loizidou cannot be deemed to have lost title to her property, and that she must therefore still be regarded as the legal owner of the land. On the other hand, after considering facts advanced by the applicant and by the respondent Government, and those found by the Court, I also remained unconvinced of the opposite view, namely, that she in fact lost title to her property. Consequently, and in doubt, I was unable to dismiss the preliminary objection ratione temporis.
3. For similar reasons I also remained in doubt as to whether the denial of access to the applicant's property resulted in her loss of control, amounting to a breach of Article 1 of Protocol No. 1, which occurred due to the interference with the peaceful enjoyment of her possessions. Consequently I also dissented on the issue of the imputability of the interference to Turkey, and on whether there has been a violation of Article 1 of Protocol No. 1 (points 2 and 3 of this judgment's operative provisions).
4. In the present case an interesting interplay took place between casting a vote on the preliminary objection, and then on the merits. It is worth mentioning it as an obiter dictum to my opinion.
In the memorials and at the hearing we were witness to the exchanges about the "proper" calculation of the votes of the members of the Commission at the admissibility and at the final stage. It appeared as obvious that an individual member of the Commission may indeed opt for any one of the following three choices: (a) to hold that there was no breach of the Convention because of the prior acceptance of the validity of the preliminary objection without going into the merits; (b) to hold that there was no breach after firstly accepting the preliminary objection, and then going into the merits, or (c) to hold that there was a breach after firstly accepting the preliminary objection, and then going into the merits. In retrospect, the majority of 8 members of the Commission, who voted for "non-violation" of Article 1 of Protocol 1 was re-interpreted as being composed of 3 members who found no violation after going into the merits, and 5 members who voted for non-admissibility of the case, and have either (a) not expressed a valid opinion on the issue of violation at the merits stage (the Cyprus Government position), or (b) have expressed a valid opinion on this (this seems to be President Trechsel's view, although not stated in exactly such terms).
All in all, two kinds of principled reasoning about the issue seem possible at first sight:
(a) The two votes, at the admissibility/preliminary objections stage and at the merits stage, are independent of each other. The decision about the jurisdiction appears autonomous from a procedural point of view. But it may not be autonomous in relation to the merits considering the facts, the law, or the philosophical views of a judge. For example, a judge may adhere to the doctrine of judicial restraint, and therefore vote conservatively in favour of the preliminary objection, while the merits of the case may on the other side be of quite another concern for him or for her.
Moreover, the "Scandinavian doctrine" of minority respect for majority decision in the follow-up cases, as applied to the present issue would recommend that a judge who was overruled on the preliminary objection, should recognise its authority immediately. Because he feels, or actually is bound by the decision on Court's jurisdiction, he should go into the merits all the way - by expressing views and by casting his vote.
(b) The second kind of reasoning would advocate interdependence of the two votes, at the preliminary objections and at the merits stage. If the judge took the view that a preliminary objection is well-founded, he has to vote for non-violation, given that in his view the Court is not competent to deal with the issue and should therefore never decide on the merits. If the dissenting judge's view would prevail, the Court would not be seized, the applicant's claim would not be considered on its merits, and the violation would consequently not be found.
The present case departs from the two options discussed in the sense that the decision on the preliminary objection ratione temporis depended upon a prior examination of certain aspects of the merits. Therefore, the choice between the two options is not exhaustive of all possibilities. As for myself, I came to the conclusion that the merits of the case fall outside the jurisdiction of the Court ratione temporis only after a preliminary examination of those facts found by the Court which related to the issue of the title and control of the property.
My subsequent dissent from the second and the third points of the operative provisions of the judgement was effected cumulatively by the reasoning under (b) above, by my preliminary and partial understanding of the merits of the case, and by some further considerations which I set out below.
5. The alleged original ("instantaneous") breach is in my view veiled in the factual and legal uncertainties of events which occurred as long ago as 1974 and even before. It also seems beyond this Court's abilities and competence to assess with the required certainty whether Turkey's interference was (in)consistent with international agreements, and whether or not it was (in)consistent with general principles of international law.
I am indebted to my colleague Judge Wildhaber for having reminded me also of the following ideas: The United Nations and other international policies of non-recognition of "TRNC" are valid on an inter-state level. As a result, the "TRNC" Government cannot create legislation or bring about changes with legal effect in international law. However, it would be going too far to say that no purportedly legal acts of the "TRNC" administration are valid. For example, a marriage conducted by a "TRNC" official, and registered in the "TRNC", would have legal effect outside that "jurisdiction". Similarly, a transfer of property between private individuals in northern Cyprus, registered by an official of the "TRNC", would have legal effect elsewhere in the world.
Similar situations have occurred in other countries in the past. For example, in the settlement between Czechoslovakia and Germany following the Second World War, it was decided that the Munich Agreement was null and void, but that land transactions between private individuals were valid.
Furthermore, the events in northern Cyprus in 1974 would not be sufficient on their own to establish that Mrs Loizidou had lost her property. For example, if the prior status quo had been re-established in 1975 or 1976, she would not have lost her property. But the prior status quo has not yet been restored. Although it may be seen that Mrs Loizidou did not lose her property by an instantaneous act in 1974, it may nonetheless be disputed that no transfer of ownership was effected. The Court's earlier case-law has always dealt in this respect with concrete situations. For example, in the Papamichalopoulos and Others v. Greece judgment (of 24 June 1993) the case concerned a refusal by the authorities to execute a national court decision. That is not the case here, where the ownership of Mrs Loizidou was allegedly altered by the events of 1974, or even as a result of the follow-up "process of the 'taking of the property'".
I must therefore suppose that after a certain time events in the "TRNC" may have led to a transfer of ownership - in which case there is no violation continuing to the present day: the relevant acts in northern Cyprus were possibly completed by the time of the Turkish declaration recognising this Court's jurisdiction.
The doctrine of "continuing violation" implies a beginning, i.e., a critical event constituting the original breach, and its continuation. In the case of Titina Loizidou the Court in my view failed to ascertain both ingredients to this concept in an unequivocal manner. This line of reasoning thus led me, inter alia to the conclusion that the objection ratione temporis applies. 6. Moreover, the factual situation established in 1974 persisted ever since and it is still uncertain which side in the conflict, or even more likely, what kind of negotiated compromise solution will become "ultimately successful". While it is true that simple longevity of control must not be equated with "ultimate success", it is also far from established whether the "TRNC" de facto Government will survive or not, and if it will, in what form - as a federal or confederal unit, an independent state, or in some other form. In any case, the validity of its acts concerning the applicant must be considered to depend upon its ultimate success. The final outcome of the conflict - in the form of a post facto international or bilateral settlement - will have to resolve in one way or another the issue of recognition of the acts of the "TRNC" from the commencement of its existence, and/or of reversion to the original status prior to such acts.
7. A national, and an international judge alike, before making a decision to act in an activist or a restrained way, will as a rule examine whether the case is focused in a monocentric way and ripe for decision, and whether it is not overly moot and political.
Given that efforts are under way to arrive at a peaceful settlement of the Cyprus problem within UN, CE and other international bodies, a judgment of the European Court may appear as prejudicial. The respective "political nature" of the issue at hand does not refer, however, to the possible political consequences of the final judgment; all judgments, domestic and international, have at least some general social and political effects.
The "political nature" of the present case is in my view rather related to the place of the courts in general, and of the Strasbourg mechanism in particular, in the scheme of the division and separation of powers. There, the courts have a different role to play, than, e.g., the legislative and executive bodies. Courts are adjudicating in individual and in concrete cases according to prescribed legal standards. They are ill-equipped to deal with large scale and complex issues which as a rule call for normative action and legal reform.
The same kinds of dilemmas face an international tribunal, which should, in my view, proceed in a rather restrained, that is, conservative way in matters which clearly transcend adjudication of an individual case, especially when they are part and parcel of a given structure of inter-community relationships. As to the present case, a "violation decision" on Article 1 of Protocol 1 might invite another one hundred thousand or so similar cases in which applications could be filed with legitimate expectations that Commission's reports or the Court's judgments will follow the present precedent. In that case, the Court has in fact taken a broad decision about a large scale issue in the realm of public international law.
8. This case may furthermore affect the role of the Court in another perspective, on which I also had the privilege to exchange and share ideas with my colleague Judge Wildhaber. It may affect the wayùin which the Court might handle future cases involving new member States such as Croatia, Bosnia and Hercegovina or Russia. The Court might have to look at what happened in the Croat region of Krajina, in the Republika Srpska, in other parts of Bosnia and Hercegovina, or in Chechnya. There, alleged violations of Convention-protected human rights and fundamental freedoms would be counted in millions, not "only" in hundreds and thousands of possible cases.
I have great respect for the principled view that the Court's only task is to see to it that fundamental rights of individuals are respected, irrespective of their numbers. On the other hand, I see much reason to consider seriously an equally legitimate issue of this Court's effectiveness in resolving human rights problems. This problem is even more difficult in respect of individual cases, such as the present one, which are inextricably linked to, and also depend upon the solution of a large scale inter-communal ethnic and/or political conflict.
9. In the final analysis the totality of the above considerations led me to take a restrained judicial approach in the present case, and to accept validity of the exceptio ratione temporis.
I voted with the minority against finding a violation of Article 1 of Protocol No. 1 for a number of reasons. In the judgment on the preliminary objections I had already expressed my views as follows:
"At the examination of preliminary objections stage, after the discussion at the public hearing, which was limited to analysis of these objections by the Parties, the European Court was not able to take cognisance of all the problems, and this circumstance militated even more forcefully in favour of joining all these objections to the merits. To date legal writers have not considered analysis of the Turkish declaration a simple matter (see Claudio Zanghi, Christian Tomuschat, Walter Kalin, Pierre-Henri Imbert, Christopher Lush, etc.).
An overall assessment of the situation, beginning with the concepts of sovereignty and jurisdiction, would make it possible to review the criteria ("occupation", "annexation", territorial application of the Geneva Conventions in northern Cyprus, "conduct of international relations") on the basis of which the UN has analysed both the problem whether or not to recognise northern Cyprus as a State and the problem of the application of the UN Charter (see Security Council Resolution 930). The responsibilities of the European Convention institutions, when faced with such difficulties, reflect the mutual commitment of the member States to ensuring the best and widest protection of individuals and fundamental rights in the countries concerned by applying the Convention provisions in a manner consistent with their object and purpose" (individual dissenting opinion, Series A no. 310, pp. 43-44).
"Admittedly the concept of jurisdiction is not restricted to the territory of the High Contracting Parties, but it is still necessary to explain exactly why jurisdiction should be ascribed to a Contracting Party and in what form and manner it is exercised. We note that in the Drozd and Janousek v. France and Spain judgment cited in paragraph 62 the Court eventually found that there had been no violation.
While the responsibility of a Contracting Party may be engaged as a consequence of military action outside its territory, this does not imply exercise of its jurisdiction. The finding in paragraph 64 does not refer to any criterion for deciding the question of jurisdiction. In our opinion, therefore, there is a contradiction between what the Court says in paragraph 62 and its conclusion in paragraph 64, and this contradiction reappears in the vote on point 2 of the operative provisions. The Court should have looked into the merits of the question who did or did not have jurisdiction before ruling on the objection" (joint dissenting opinion of Judge Gslcòklò and myself, loc. cit., p.ù35).
That is why I was in favour of upholding the objection ratione temporis and of distinguishing between ratione loci and ratione personae. Neither the second deliberations nor the memorials produced supplied the detailed information needed for a thorough assessment of the facts. Nor did the parties' arguments concerning Protocol No. 1 shed any light on the problem of attributing responsibility for any interference with the use of property there may have been, although free access to the property depended on liberty of movement from one zone to the other.
The majority held that there had been a violation of Article 1 of Protocol No. 1 mainly because of the refusal of access since 1974, which led to the complete loss of control over the property, a matter covered by the first sentence of that provision. They considered that the interference was not justified and criticised the Turkish Government for not explaining how the need to rehouse the Turkish Cypriot refugees displaced after 1974 could justify the measure taken against Mrs Loizidou. Indeed, the Court went on to say that it could not accept such a justification. In any case, I consider that consideration to be of secondary importance.
The need concerned seems obvious, and if events had made the rehousing operation inevitable, that could justify the interference. The facts of the matter had to be looked into. The Loizidou case as a whole could not be analysed as if it concerned a de facto expropriation under ordinary law, without compensation. The movement of displaced persons from one zone to another, an exodus which affected both communities, was the consequence of international events for which responsibility cannot be ascribed on the basis of the facts of the Loizidou case but has to be sought in the sphere of international relations.
Since 1974, the United Nations not having designated the intervention of Turkish forces in northern Cyprus as aggression in the international law sense, various negotiations have been conducted with a view to mediation by the United Nations, the Council of Europe and the European Union. Moreover, the Court did not examine the question whether that intervention was lawful (see paragraph 50 of the judgment). The decision to station international forces on the line separating the two communities made the free movement of persons between the two zones impossible, and responsibility for that does not lie with the Turkish Government alone.
The Court's reference to the international community's views about the Republic of Cyprus and the TRNC (see paragraph 56 of the judgment) is not explained. But is it possible in 1996 to represent the views of this "international community" on the question as uncontested, given that the most recent resolutions of the United Nations General Assembly and Security Council go back several years and the Court had no knowledge of the missions of the international mediators? For the Court it would appear that only Turkey is "accountable" for the consequences of the 1974 conflict! In my opinion, a diplomatic situation of such complexity required a lengthy and thorough investigation on the spot, conducted by a delegation of the Commission, of the role of the international forces and the administration of justice, before the Court determined how responsibility, in the form of the jurisdiction referred to in Article 1 of the Convention, should be attributed. The problem of the status and responsibilities of the TRNC should have been examined more fully. It is true that the United Nations General Assembly has not admitted the TRNC as a member, but the lack of such recognition is no obstacle to the attribution of national and international powers (see paragraph 51 of the judgment). The case of Taiwan is comparable.
Moreover, the Court accepted the validity of measures adopted by the TRNC authorities in the fields of civil law, private law and the registration of births, deaths and marriages, without specifying what reasons for distinguishing between these branches of law and the law governing the use of property justified its decision. On the merits of Mrs Loizidou's claim, there are a number of uncertainties which have not been elucidated by the files. Since 1974 she does not seem to have taken any steps to give tangible expression to her intention of going to live in northern Cyprus or brought proceedings to preserve her title between 1974 and 1985 at least in the courts of the Republic of Cyprus, although she maintained that the latter had sole legitimate jurisdiction and sovereignty over the whole island. She did not apply to the Commission until 1989 and she has not produced any evidence that she applied to the UN forces for authorisation to cross the line and travel in the area beyond the border zone. The very basis of her civil action remains to be specified, her application being mainly concerned with access to her property. Loss of the use of the property is essentially due to the creation of the border, not to any one act on the part of a local authority.
The Court takes the view that it acquired jurisdiction on 22ùJanuary 1990 (see paragraph 32 of the judgment). Quite apart from the problem of admissibility raised by the wording of Turkey's declaration under Article 46 of the Convention, it is not obvious that there was a continuing violation of Mrs Loizidou's property rights. On the contrary, it could be considered that there was an instantaneous violation in 1974, at the time of the coup d'etat, even before a de facto expropriation in 1985 by the local authorities and during a period of disorder on which the Commission has not been able to throw any light, making it impossible to dissociate Mrs Loizidou's personal situation from the historical situation which also affected the Turkish Cypriot community. The term "continuing violation" is not appropriate, as the Commission observed in paragraphs 97 and 98 of its report.
It should also be noted that the Commission limited its finding on the question whether Turkey exercised jurisdiction to the border zone, not the whole of northern Cyprus (see applications nos. 6780/74, 6950/75 and 8077/77) and that it concluded that the applicants' arrest, detention and trial in the above-mentioned cases were not acts imputable to Turkey (see paragraph 51 of the judgment and paragraph 114 of the Turkish Government's memorial). In its report of 8 September 1993 the Commission refrained from ruling on the status of the TRNC.
That takes us a long way from the type of situation which the Court termed a continuing violation in cases such as the Holy Monasteries case. The scope and limits of the concept of a continuing violation should have been defined. Whatever the responsibilities assumed in 1974 at the time of the coup d'*tat, or those which arose with the arrival of the Turkish troops in the same year, however hesitant the international community has been in attempting to solve the international problems over Cyprus since 1974, at the time when the TRNC was set up or at the time of Turkey's declaration to the Council of Europe, those responsibilities being of various origins and types, the whole problem of the two communities (which are not national minorities as that term is understood in international law) has more to do with politics and diplomacy than with European judicial scrutiny based on the isolated case of Mrs Loizidou and her rights under Protocol No. 1. It is noteworthy that since 1990 there has been no multiple interstate application bringing the whole situation in Cyprus before the Court. That is eloquent evidence that the member States of the Council of Europe have sought to exercise diplomatic caution in the face of chaotic historical events which the wisdom of nations may steer in a positive direction.
I disagree with the majority on all points and in the first place on rejection of the Turkish Government's preliminary objection concerning the Court's jurisdiction ratione temporis. The present dissenting opinion is prompted mainly by the fact that this case raises legal and political difficulties which go well beyond the conceptual framework established by the Convention and the whole of the Court's case-law hitherto.
1. Firstly, the present judgment contains serious methodological flaws. As I pointed out in my dissenting opinion on the preliminary objections in the same case (judgment of 23 March 1995), the central legal problem in the case of Loizidou v. Turkey is the question of jurisdiction and responsibility for the purposes of the Convention. Not only does the judgment not resolve this problem, it boldly ventures into a highly political area, namely the Court's definition of the capacity in which Turkey is present in northern Cyprus and its "assessment" of the legal existence of the Turkish Republic of Northern Cyprus, both of which are matters that lie entirely outside its jurisdiction and are dealt with differently by other bodies. In other words, the Court has built its own data base in order to be able to "rule" on a case that is likely to become the prototype for a whole series of similar cases which will in all probability be resolved by political bodies. Hitherto, each time the Strasbourg supervision institutions had to deal with a case involving application of other international treaties or agreements, they proceeded with great caution, and such applications never got past the admissibility stage. It is interesting, for example, that even in the present case the Commission, in its report of 8 July 1993, prudently stated with regard to the applicant's allegation that she had been unlawfully deprived of her possessions: "The Commission finds that it is not in this connection required to examine the status of the 'Turkish Republic of Northern Cyprus'. It notes that the demonstration on 19 March 1989, in the course of which the applicant was arrested in northern Cyprus, constituted a violation of the arrangements concerning the respect of the buffer-zone in Cyprus... The provisions under which the applicant was arrested and detained ... served to protect this very area. This cannot be considered as arbitrary" (see paragraph 82 of the report). Likewise, in its report on the case of Chrysostomos and Papachrysostomou v. Turkey, the Commission stated: "... the Commission does not feel called upon to resolve the dispute between the parties as to the status of the area in which the applicants' arrest took place. It refers in this respect to para. 11 sub-para. (b) of the report of the Secretary-General of the United Nations ... and to para. 6 of the Unmanning Agreement of 1989 ..." (see paragraph 153 of the report). 2. As regards jurisdiction too, the Court's present judgment goes beyond the limits of its previous case-law on the question.
Wherever jurisdiction is not derived from the territorial ambit of a Contracting State's legal system, the fact of its existence must be expressly established, since in such cases it is not legally correct to speak of application of the Convention ratione loci. On that point I refer to my dissenting opinion in the above-mentioned Loizidou v.ùTurkey judgment and the Commission's decision of 12 March 1990 on the admissibility of application no. 16137/90, which concerned application of the Convention to Hong Kong (DRù65, p. 334 et seq.).
In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey (6780/74 and 6950/75, DR 2, p. 136) the Commission had already taken the same view. That decision clearly shows that it is not a question of the Convention's application ratione loci, but of its application ratione personae.
That approach is clarified still further in other decisions in which the Commission has expressed the opinion that the acts of a State's officials, including diplomatic or consular agents, "bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property" (application no. 17392/90, DR 73, p. 193, and application no. 7547/76, DR 12, p. 73).
In its Drozd and Janousek judgment the Court too, after noting that the Principality of Andorra was not "an area ... common to the French Republic and the Kingdom of Spain, nor ... a Franco-Spanish condominium", concluded that there was no jurisdiction ratione loci. It was only after excluding that category of jurisdiction that the Court turned to the question whether there was jurisdiction ratione personae, and what is more on the basis of the case-law cited above (judgment of 26 June 1992, ó 91).
In its report on the cases of Chrysostomos and Papachrysostomou the Commission observed: "The Commission, having regard to the developments described above and finding no indication of direct involvement of Turkish authorities in the applicants' detention, and the proceedings against them, after their arrest on 19ùJuly 1989, sees no basis under the Convention for imputing these acts to Turkey" (see paragraph 170 of the report).
The present judgment breaks with the previous case-law since in dealing with the question whether there was jurisdiction ratione personae it applies the criteria for determining whether there was jurisdiction ratione loci, although the conditions for doing so have not been met. Thus, for the first time, the Court is passing judgment on an international law situation which lies outside the ambit of the powers conferred on it under the Convention's supervision machinery. In this judgment the Court projects Turkey's legal system onto northern Cyprus without concerning itself with the political and legal consequences of such an approach. 3. I would also emphasise that not only does northern Cyprus not come under Turkey's jurisdiction, but there is a (politically and socially) sovereign authority there which is independent and democratic. It is of little consequence whether that authority is legally recognised by the international community. When applying the Convention the actual factual circumstances are the decisive element. The Commission and the Court have stated more than once that the concept of "jurisdiction" within the meaning of Article 1 of the Convention covers both de facto and de jure jurisdiction. In northern Cyprus there is no "vacuum", whether de jure or de facto, but a politically organised society, whatever name and classification one chooses to give it, with its own legal system and its own State authority. Who today would deny the existence of Taiwan? That is why the Commission in its report on the Chrysostomos and Papachrysostomou cases examined the law in force in northern Cyprus as such, and not Turkish law in order to determine whether the applicants' detention had been lawful (see paragraphs 148, 149 and 174 of the report).
4. I now come to the heart of the problem. I voted in favour of upholding the Turkish Government's preliminary objection ratione temporis and against finding a violation of Article 1 of Protocol No.ù1. As Judge Bernhardt, the Vice-President of the Court, rightly pointed out in his dissenting opinion, some general remarks are indispensable before any discussion of the two main aspects of the case can begin.
I agree entirely with that part of Judge Bernhardt's opinion where he states: "A unique feature of the present case is that it is impossible to separate the situation of the individual victim from a complex historical development and a no less complex current situation. The Court's judgment concerns in reality not only Mrs. Loizidou, but thousands or hundreds of thousands of Greek Cypriots who have (or had) property in northern Cyprus. It might also affect Turkish Cypriots who are prevented from visiting and occupying their property in southern Cyprus. It might even concern citizens of third countries who are prevented from travelling to places where they have property and houses. "The factual borderline between the two parts of Cyprus has the ... consequence that a great number of individuals are separated from their property and their former homes".
The Cypriot conflict between the Turkish and Greek communities is mainly attributable to the 1974 coup d'*tat, carried out by Greek Cypriots with the manifest intention of achieving union with Greece (enosis), which the Cypriot head of state at the time vigorously criticised before the international bodies. After this coup d'*tat Turkey intervened to ensure the protection of the Republic of Cyprus under the terms of a Treaty of Guarantee previously concluded between three interested States (Turkey, the United Kingdom and Greece) which gave these States the right to intervene separately or jointly when the situation so required, and the situation did so require ultimately in July 1974, on account of the coup d'*tat. In all of the above, incidentally, I make no mention of the bloody events and incidents which had been going on continually since 1963.
This implementation of a clause in the Treaty of Guarantee changed the previously existing political situation and durably established the separation of the two communities which had been in evidence as early as 1963.
I fully agree with Judge Bernhardt that after the 1974 coup d'*tat there were a number of actors and factors involved in the Cypriot "drama", including "the population transfer from north to south and south to north". He continued: "The result of the different influences and events is the 'iron wall' which has existed now for more than two decades and which is supervised by United Nations forces. All negotiations or proposals for negotiations aimed at the unification of Cyprus have failed up to now. Who is responsible for this failure? Only one side? Is it possible to give a clear answer to this and several other questions and to draw a clear legal conclusion? The case of Mrs. Loizidou is not the consequence of an individual act of Turkish troops directed against her property or her freedom of movement, but of the establishment of the borderline in 1974 and its closure up to the present day."
After the establishment of the buffer zone under the control of United Nations forces, movement from north to south and vice versa was prohibited and there was a population exchange with the common consent of the Turkish and Cypriot authorities under which eighty thousand Turkish Cypriots moved from southern to northern Cyprus.
I must emphasise once again that, as already mentioned at the very beginning of this dissenting opinion, in the present case we are dealing with a political situation and it is impossible to separate the political aspects of the case from the legal aspects.
The case has another political dimension for our Court. Its judgment will certainly have consequences for future cases - whose origins go back to the Second World War - against new members of the Council of Europe, such as the countries in Central or Eastern Europe previously governed by communist regimes.
Turkey has recognised the Court's jurisdiction only in respect of events subsequent to 22 January 1990. That restriction excludes all judicial consideration of events prior to that date, even if they were incompatible with the respondent State's obligations under the Convention.
The Convention institutions have accepted the notion of "continuing violations", that is violations which began before the critical date and continued afterwards. However, where this concept is invoked it is vital to define its scope and its limits. In the case of imprisonment or the illegal occupation of land before and after the date concerned there is no doubt that a continuing violation exists and that the period subsequent to the critical date falls within the Court's jurisdiction. Like Judge Bernhardt, however, I consider that the position is different in the present case, where a certain historical event has led to "a situation such as the closing of a borderline with automatic consequences for a great number of cases". If it were otherwise, the Strasbourg institutions could be confronted with the difficult task of reconsidering historical events many years after their occurrence and applying Convention standards retrospectively. In the Loizidou v. Turkey case it is the existence of a buffer zone, a kind of border guarded by UN forces in collaboration with the security forces of both communities, in accordance with the agreements they have concluded, which is preventing the Greek Cypriots of southern Cyprus from obtaining access to their properties in the north and from living there. Its establishment, which took place before 1990, that is before Turkey recognised the Court's jurisdiction, was an instantaneous act which froze a de facto situation of a political nature. That being the case, we are not confronted with a "continuing situation" as the majority of the Court considered. In this case, therefore, there is no question of a continuing violation nor of any infringement of the applicant's right of property. That is also the view taken by the Commission, which noted: "the applicant, who was arrested after having crossed the buffer-zone in Cyprus in the course of a demonstration, claims the right freely to move on the island of Cyprus, irrespective of the buffer-zone and its control, and bases this claim on the statement that she owns property in the north of Cyprus." The report continues: "The Commission acknowledges that limitations of the freedom of movement - whether resulting from a person's deprivation of liberty or from the status of a particular area - may indirectly affect other matters, such as access to property. But this does not mean that a deprivation of liberty, or restriction of access to a certain area, interferes directly with the right protected by Article 1 of Protocol No. 1. In other words, the right to the peaceful enjoyment of one's possessions does not include, as a corollary, the right to freedom of movement." The Commission accordingly concluded that there had been no violation of Article 1 of Protocol No. 1 to the Convention (see the Commission's report on the application of Titina Loizidou v. Turkey, paragraphs 97, 98 and 101).