DISSENTING OPINION OF JUDGE BAKA

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, in the period between 1974 and 1985 the applicant still held legal title to her land. She purportedly lost ownership by the formal act of expropriation pursuant to Article 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.

DISSENTING OPINION OF JUDGE JAMBREK

I.

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 (P1-1), 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 (P1-1) (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 stages. It appeared as obvious that an individual member of the Commission might 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 eight members of the Commission who voted for "non-violation" of Article 1 of Protocol No.1 (P1-1) was reinterpreted as being composed of three members who found no violation after going into the merits, and five members who voted for non-admissibility of the case, and had either (a) not expressed a valid opinion on the issue of violation at the merits stage (the Cyprus Government ’ s position), or (b) had 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 stages. If the judge takes 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 were to 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 judgment 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.

II.

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 the "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 Mrs 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 has 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 No.1 (P1-1) 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 way in 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 .