CONCURRING OPINION OF JUDGE WILDHABER, JOINED BY JUDGE RYSSDAL

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 of the judgment), 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 to 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".

DISSENTING OPINION OF JUDGE BERNHARDT JOINED BY JUDGE LOPES ROCHA

I have voted for accepting the preliminary objection ratione temporis and against the finding of a violation of Article 1 of Protocol No. 1 (P1-1). 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 border 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 ’ état 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 and which 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 case of Papamichalopoulos and Others v. Greece, 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 on 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 border with automatic consequences in 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. 1 (P1-1). 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 border, 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 .