PARTIALLY DISSENTING OPINION OF MR. M.P. PELLONPÄÄ

      While I share the opinion of the majority of the Commission in

other respects, I disagree in so far as concerns the complaints based

on Article 5 of the Convention and Article 1 of Protocol No.1.

      The majority seem to consider that the applicant's right

protected by Article 1 of Protocol No. 1 has been interfered with only

"indirectly", and that therefore the case discloses no issue under

Article 1 of Protocol 1 (paras. 98, 100). This finding appears to be

based on the view that the applicant in reality complains only about

the lack of free access to her property, i.e., denial of freedom of

movement.

      In agreement with what is said by Mr. Rozakis in his Dissenting

Opinion I consider this to be an unduly narrow construction of the

applicant's complaint made under Article 1 of Protocol No. 1. In her

application form the applicant submitted that:

      "Turkey through the use of the T.M.F. and by the continued

      occupation and or control of the said part of Cyprus and by

      prohibiting the Applicant access to the said part of Cyprus

      and consequently to her property in question, has gradually

      and with the passing of time over the last 15 years,

      affected the rights of the Applicant as property owner and

      in particular her right to peaceful enjoyment of her

      possessions contrary to Article 1 of protocol 1 of the

      Convention (see SPORRONG ...) thus constituting a

      continuing violation of the said Article."

      In her observations on the merits submitted in December 1992 the

applicant specified that:

      "In the particular case of violations of Article 1 of

      Protocol 1 of the Convention, the object of the Application

      is for the Applicant to be restored to the peaceful

      enjoyment of her possessions in the area occupied by Turkey

      and, in particular, her immovable property situated in

      Kyrenia. In addition the Applicant seeks compensation for

      the deprivation of the use and enjoyment of her property

      for the period between July 20, 1974 up to this day."

      To me it is clear that the applicant's complaint is not limited

to the access aspect but concerns an alleged denial of various aspects

of the right guaranteed by Article 1 of Protocol No. 1.

      Since 1974 all the essential elements of the applicant's rights

as the owner of the property, including access to the property, have

been interfered with. This interference was not for the purpose of

controlling the use of the property within the meaning of the second

paragraph of Article 1 of Protocol No.1. Nor was the applicant's

property formally expropriated before the acceptance by Turkey of the

right of individual petition in such a way as to remove the

interference from the Commission's competence ratione temporis.

According to the respondent Government, "the question of Greek

properties in the north and Turkish Cypriot properties in the south is

a matter of discussion within the framework of the intercommunal talks"

(para. 30 of the Commission's report). Thus the unsettled nature of the

property issue - and the continuing nature of the interference - is

conceded by the Government.

      Under these circumstances the denial of access to the property

and denial of its enjoyment amount to a continuing violation of

Article 1 of Protocol No. 1 (see, mutatis mutandis, Case of

Papamichalopoulos and Others v. Greece, Eur. Court H.R., judgment of

24 June 1993). This violation is attributable to Turkey, as there are

no circumstances which would break the chain of causation between the

original interference by Turkey and the present situation. I refer to

the considerations put forward in my Partially Concurring, Partially

Dissenting Opinion in Chrysostomos and Papachrysostomou v. Turkey

(Nos. 15299/89 and 15300/89).

      I also consider that Article 5 of the Convention has been

violated. I doubt whether the arrest and detention on the basis of the

rules relied on in the main opinion of the Commission fulfilled the

requirement of foreseeability and therefore took place "in accordance

with a procedure prescribed by law". In all the circumstances of the

case, including the length of the deprivation of liberty, I conclude

that the applicant's "right to liberty and security of person",

guaranteed by para. 1 of Article 5, was violated.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

2 July 1989                      Introduction of the application

31 July 1989                     Registration of the application

Examination of Admissibility

7 September 1989                 Commission considers state of

                                 proceedings

7 October 1989                   Commission considers state of

                                 proceedings

9 November 1989                  Commission's decisions:

                                 - to join the present application and

                                 Applications No. 15299/89

                                 (Metropolitan Chrysostomos v. Turkey),

                                 and No. 15300/89 (Archimandrite

                                 Papachrysostomou v. Turkey);

                                 - to invite the Government to submit

                                 observations on the admissibility and

                                 merits of the applications

28 February 1990                 Government's observations

11 May 1990                      Applicants' observations in reply

5 October 1990                   Commission's decision to hold an oral

                                 hearing

18 December 1990                 Further written submissions by the

                                 applicant

11 January 1991                  Oral hearing on admissibility and

                                 merits

11 and 12 January 1991           Commission's deliberations

4 March 1991                     Commission's further deliberations and

                                 decision to declare the application

                                 partly admissible and partly

                                 inadmissible

7 March 1991                     Commission approves text of decision

                                 on admissibility

7 March 1991                     Decision on admissibility communicated

                                 to the parties

Examination of the merits

7 March 1991                     Commission invites Government to

                                 submit observations on the merits

7 May 1991                       Government's requests to re-open

                                 proceedings on admissibility and to

                                 declare the applications inadmissible

24 May 1991                      Applicant's comments on the

                                 Government's requests

30 May 1991                      Commission finds no legal basis for

                                 the requests, invites Government

                                 again to submit observations on

                                 merits

6 July 1991                      Commission grants Government's request

                                 for extension of time-limit

25 September 1991                Government refuse to participate in

                                 further proceedings

8 October 1991                   Commission's deliberations

16 October 1991                  Commission's further deliberations and

                                 adoption of Interim Report to the

                                 Committee of Ministers

17 October 1991                  Commission's deliberations

19 December 1991                 Committee of Ministers adopts

                                 Resolution DH (91) 41

14 January 1992                  Commission's decisions:

                                 - to take oral evidence;

                                 - to invite parties to file

                                 observations

28 February 1992                 Government's observations

24 March 1992                    Submissions by applicant

9 April 1992                     Commission's decisions:

                                 - appointment of Delegation for

                                 hearing of witnesses;

                                 - list of witnesses to be examined

29 April 1992                    Government propose further witness

19 May 1992                      Commission's deliberations

20 May 1992                      Further submissions by Government

5 June 1992                      Further submissions by applicant

9 and 10 June 1992               Hearing of witnesses by Delegation

7 July 1992                      Commission's decision to hold oral

                                 hearing on the merits of the

                                 applications

28 September 1992                Further written submissions by the

                                 applicant

1 October 1992                   Further written submissions by the

                                 Government

20 November 1992                 Government submit documentary material

2 December 1992                  Communication from Government

3 December 1992                  Commission's deliberations

4 December 1992                  Oral hearing on the merits.

                                 Commission's deliberations

7 December 1992                  Commission decides to disjoin the

                                 present application from Applications

                                 No. 15299/89 (Metropolitan

                                 Chrysostomos v. Turkey), and

                                 No. 15300/89 (Archimandrite

                                 Papachrysostomou v. Turkey);

28 January 1993                  Final submissions by applicant

29 January 1993                  Government's final submissions

3 April 1993                     Commission's consideration of the

                                 state of proceedings

29 June 1993                     Commission's deliberations on the

                                 merits and final vote

8 July 1993                      Adoption of the Report