INDIVIDUAL DISSENTING OPINION OF JUDGE PETTITI

(Translation)

The solution advocated, i.e. joining all the preliminary objections to the merits, had the advantage of permitting an overall view of the situation of Cyprus and Turkey regarding the disputes concerning northern Cyprus . It is not appropriate to sever the objection ratione loci from interpretation of Article 1 (art. 1); to my mind these issues are inseparable. Consideration of the merits as a whole would have made it easier to elucidate the question of the TRNC ’ s international or other status, and that of the agreement concluded as a result of the relations and negotiations conducted at the United Nations, under which people do not enjoy liberty of movement in both directions.

I consider that this overall examination of the merits, before consideration of the first objection and the declaration, was necessary in order to decide the very scope of the declaration. The European Convention is not an international treaty of the traditional type nor a synallagmatic convention, as legal writers, and particularly Professor Cohen-Jonathan, have pointed out, since it is not based on reciprocity.

It is based on the principle that all individual subjects of law are its beneficiaries, so that fundamental rights can be protected more securely. The Court is the guarantor of the Convention and must endeavour to extend its protection as far as possible; it is therefore empowered to draw the consequences of instruments deposited by the States. Consequently, the Court can better fulfil its protective role by having at its disposal all the information necessary to assess the legal and factual situation.

In the search for a peaceful compromise, the northern Cyprus question has been discussed in all international negotiations concerning Greece , Cyprus and Turkey , including those relating to European Union customs agreements or GATT agreements.

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.

[1] This 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) 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.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 310 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.