DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority against finding a violation of Article 1 of Protocol No. 1 (P1-1) 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 Gölcüklü and myself, loc. cit., p. 35)

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 (P1) 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 (P1-1) 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 (P1-1). 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 56 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 42 of the judgment) is not explained. But is it possible in 1996 to represent the views of this "international community" on the question as uncon test ed, 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 (art. 1), 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 22 January 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 (art. 46), 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 ’ état, 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 8007/77) 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 July 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 ’ état, 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 (P1). It is noteworthy that since 1990 there has been no multiple inter-State 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.