INDIVIDUAL DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

In addition to the matters I raised in my joint dissenting opinion with Mr Pettiti concerning the preliminary objections on the questions of "jurisdiction" (Article 1 (art. 1) of the Convention; paragraphs 62 and 64 of the present judgment) and the "inseparability" of the Turkish declarations under Articles 25 and 46 (art. 25, art. 46) of the Convention (paragraphs 93 et seq.), I cannot agree, to my great regret, with the Court ’ s conclusions on two other aspects of this case.

1. I consider that it is not possible in this case to reach a conclusion on the role of the "Turkish Government", or in other words on its status as "respondent", without first looking into the merits of the case. On 21 April 1994 the plenary Court did not decide whether Turkey had the status of respondent, but only considered the question submitted to it by the President, under Rule 34 of Rules A and decided, without prejudice to the preliminary objections raised by the Government of Turkey or the merits of the case, that the applicant Government had standing under Article 48 (b) (art. 48-b) of the Convention to refer the case to the Court and that the Chamber should resume consideration of the case (paragraph 7). And in its final submissions Turkey had asked the Court to hold that the applicant ’ s allegations lay outside the jurisdiction of Turkey within the meaning of Article 1 (art. 1) of the Convention. It goes without saying that this question of "respondent status" is closely bound up with the question of "jurisdiction" within the meaning of Article 1 (art. 1) of the Convention. The Court took the view that it was not within the discretion of a Contracting Party to characterise its standing in the proceedings before the Court as it saw fit (paragraph 51). By the same token, the applicant is not entitled to name any State she sees fit as respondent in a case before the Court, nor is it for the Court to build a whole procedure on top of this unverified allegation. Therefore, instead of delivering a separate judgment on this specific question, as it has done, the Court should have joined the preliminary objection in question lodged by Turkey to the merits of the case.

2. With regard to point 3 of the judgment ’ s operative provisions, I entirely agree with the dissenting opinion expressed in this case by five eminent members of the Commission (Mr Nørgaard, the President, and Mr Gaukur Jörundsson, Mr Gözübüyük, Mr Soyer and Mr Danelius) in which they declared (see pp. 55-56 below):

"Moreover, under Article 63 (art. 63) of the Convention, certain territorial limitations are also expressly provided for. However, Article 63 (art. 63) concerns territories for whose international relations a Contracting State is responsible, and the northern part of Cyprus cannot be regarded as such a territory. Nevertheless, Article 63 (art. 63) shows that, when making a declaration under Article 25 (art. 25), a Contracting State may, in some circumstances, make a distinction between different territories.

If a State may exclude the application of Article 25 (art. 25) to a territory referred to in Article 63 (art. 63), there would seem to be no specific reason why it should not be allowed to exclude the application of the right of individual petition to a territory having even looser constitutional ties with the State ’ s main territory. If this was not permitted, the result might in some circumstances be that the State would refrain altogether from recognising the right of individual petition, which would not serve the cause of human rights.

We consider that the territorial limitation in the Turkish declaration, in so far as it excludes the northern part of Cyprus , cannot be considered incompatible with the object and purpose of the Convention and that it should therefore be regarded as having legal effect.

In these circumstances, it is not necessary to examine what the legal consequences would have been if the territorial limitation had been held not to be legally valid.

It follows that ... the Commission is not competent to deal with the applicant ’ s complaints of violations of the Convention in Cyprus . For these reasons, we have voted against any finding of a violation of the Convention in the present case."

I interpret Article 6 of Protocol No. 7 (P7-6) in the same way. I would also like to cite, in this connection, another opinion to the above effect, that of Professor Christian Tomuschat.

" Turkey ’ s refusal to accept the supervisory authority of the Commission with regard to all other areas than the Turkish national territory itself ... may be justifiable under Article 63 para. 4 (art. 63-4). This provision admits of a differentiation between metropolitan territories and other territories ‘ for whose international relations ’ a State is ‘ responsible ’ . Although the text avoids speaking of colonial territories, the intention of the drafters was precisely to leave States Parties some latitude with regard to their extra-European dependencies. If interpreted in this restricted sense, Article 63 para. 4 (art. 63-4) could not be relied upon by Turkey . However, doubts may be raised as to the precise scope of Article 63 para. 4 (art. 63-4). The United Kingdom also invoked it in respect of its European dependencies, namely the Bailiwicks of Guernsey and Jersey and the Isle of Man. Originally, Guernsey and the Isle of Man were mentioned in the first declaration under Article 25 (art. 25) of 12 September 1967 which defined the competence of the Commission in territorial terms. When the declaration was renewed for the first time in 1969, Guernsey and the Isle of Man were excluded. Afterwards, the two territories were again added to the geographical lists accompanying the relevant declarations. As mentioned above, the Isle of Man was dropped from those lists in 1976. Strangely enough, Jersey is mentioned for the first time explicitly in the declaration of 4 December 1981, though in a positive sense, as being placed again ( ‘ renew ’ ) under the control mechanism of Article 25 (art. 25). To date, no objections have been lodged against this practice. It might be argued, therefore, that Article 63 para. 4 (art. 63-4) has evolved into a clause conferring unfettered discretion on States concerning the territorial scope of their declarations under Article 25 (art. 25), whenever territories beyond the national boundaries are concerned.

Additionally, it might be contended that valid substantive reasons could be identified to support such a conclusion. The extraterritorial legal effect of human rights standards is particularly difficult to assess. While there can be no doubt that States have to refrain from interfering with human rights irrespective of the place of their actions, to ensure human rights beyond their boundaries is mostly beyond their capabilities. It is noteworthy, in this connection, that the International Covenant on Civil and Political Rights limits the commitments of States to individuals within their territory and subject to their jurisdiction (Article 2 para. 1)." (" Turkey ’ s declaration under Article 25 (art. 25) of the European Convention on Human Rights", Festschrift für Felix Ermacora, Kehl, Engel, 1988, pp. 128-29).

For other examples supporting this argument, it is sufficient to cast a glance at the long list of reservations and declarations deposited by the Contracting States.

I therefore consider valid the territorial restrictions contained in the Turkish declarations under Articles 25 and 46 (art. 25, art. 46), applying, at least by analogy, Article 63 (art. 63) of the Convention.