DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

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, Series A no. 310), 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 database 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 in 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 paragraph 11 sub-paragraph (b) of the report of the Secretary-General of the United Nations ... and to paragraph 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 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 (Decisions and Reports (DR) 65, p. 330 et seq.).

In its decision of 26 May 1975 concerning the case of Cyprus v. Turkey (nos. 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 v. France and Spain 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, Series A no. 240, p. 29, para. 91).

In its report in 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 19 July 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 on to 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 (art. 1) 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 in 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. 1 (P1-1). 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 border 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 ’ état, 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 ’ état 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 ’ état. 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 ’ état 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 it is the consequence 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 border with automatic consequences in 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 (P1-1). 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 (P1-1) (see the Commission ’ s report on the application of Loizidou v. Turkey , paras. 97, 98 and 101).

[1] The case is numbered 40/1993/435/514.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.