DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret, I cannot agree with the majority's opinion and reasoning or with their conclusions in the present case, for the following reasons.

1. On the island of Cyprus two communities – the Turkish community and the Greek community – once lived and still live side by side, on an equal footing, but not always on very good terms, it must be admitted.

2. It will be remembered that the fateful day as far as the Cypriot “affair” or “crisis” is concerned was 15 July 1974 . That was the date of the coup d'état organised by the Greek colonels with the intention of annexing the island to Greece (enosis). The head of State, Archbishop Makarios , fled the country and asked for assistance from the UN Security Council.

3. Following the coup d'état , whose declared aim was to put an end to the Cypriot State's existence, Turkey intervened alone (in view of the indifference of the other two guarantor States) to save the Republic; the intervention was based on the guarantee agreement between three States (the United Kingdom, Greece and Turkey), which gave them the right to intervene, separately or jointly, if the situation so required. It was therefore effected in implementation of a clause in an international instrument.

4. The above-mentioned events considerably altered the existing political situation and led to the separation of the two communities and division of the island (the southern part, Greek, and the northern part, Turkish). I must add that this separation had already been perceptible since 1963. With the situation deteriorating day by day, the buffer-zone had been set up and the UN forces interposed as far back as 1964.

Subsequently, the “green line” – or demarcation line – was drawn between the south and north of the island, under the protection and surveillance of the UN forces. The population exchange was agreed between the Turkish authorities and the Greek authorities.

5. First, a few particulars to clarify the status of the buffer-zone and the “green line”. In his report of 7 December 1989 – Security Council document S/21010 – on the UN operation in Cyprus the Secretary-General of the United Nations made the following observations about a demonstration on the demarcation line on 19 July 1989 :

“In the evening of 19 July, some 1,000 Greek Cypriot demonstrators ... forced their way into the United Nations buffer-zone in the ... area of Nicosia . The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed a UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further ...”

The Secretary-General continued:

“The events described above created considerable tension in the island and intensive efforts were made, both at United Nations Headquarters and at Nicosia , to contain and resolve the situation. On 21 July, I expressed my concern at the events that had taken place and stressed that it was vital that all parties keep in mind the purpose of the United Nations buffer-zone as well as their responsibility to ensure that that area was not violated. The President of the Security Council ... also stressed the need strictly to respect the ... buffer-zone.” (See Chrysostomos and Papachrysostomou v. Turkey , nos. 15299/89 and 15300/89, Commission's report of 8 July 1993, Decisions and Reports (DR) 86-A, pp. 12-14, § 42; see also Loizidou v. Turkey (preliminary objections), no. 15318/89, judgment of 23 March 1995, Series A no. 310, opinion of the Commission, pp. 50-54, §§ 76 et seq.)

6. That means that freedom of movement between northern and southern Cyprus ceased to be possible in July 1974 and that the impossibility is not imputable to Turkey alone or to the Turkish Republic of Northern Cyprus (the “TRNC”). In a way, it is the international community (the United Nations) which has taken on the responsibility of ensuring respect for the “green” demarcation line.

The division of Cyprus was not an arbitrary act due to Turkey 's intervention but an act which was the result and consequence of an agreement between the two communities (Turkish and Greek) in Vienna on 31 July and 2 August 1975 . That agreement is applied, as we have just seen, under UN supervision. Two subsequent agreements, in 1977 and 1979, advocated a bi ‑ zonal solution and provided that each community would be responsible for the administration of its own territory. Questions of freedom of movement, place of residence, etc., were settled under the bi- zonal and bi-communal system.

My first conclusion is that although the “TRNC” is not recognised by the international community, the buffer-zone and the “green” demarcation line are, and they must be respected according to the needs and circumstances of the time. Another paragraph taken from Loizidou (opinion of the Commission cited above) eloquently makes that point:

“82. 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.

83. The Commission therefore finds that the applicant's arrest and detention were justified under Article 5 § 1 (f), as applied to the regime created in Cyprus by international agreements concerning the buffer-zone.”

The terms “buffer-zone” and “green line” therefore do not mean “public green space” or “English garden”; they are not a “park” that one can walk through as one wishes to meet one's friends nor are they a “sports field”.

7. We must bear in mind the very marked political colouring of the instant case. A court must, of course, concentrate on the legal aspect of the case before it; but it cannot always entirely avoid being caught up in political situations and taking them as the “facts of the case”. International law tends to take into account historical and political situations as relevant and valid “facts”, even if they are the outcome of illegal acts. Before 1989 the tendency in international law was not to go back further than one generation; at present the perspective has changed and the past is probed as far back as possible to reach the original illegality (as was the case with events in the Balkans).

8. The northern part of Cyprus is not a black hole. There is a socially and politically organised, democratic and independent community there, with its own legal system; the name and classification we give it are of no import. Can one deny the political existence of Taiwan ?

In fact, in its report in Chrysostomos and Papachrysostomou and its opinion in Loizidou (both cited above), the European Commission of Human Rights examined the applicants' complaints (concerning the lawfulness of detention, peaceful enjoyment of possessions, etc.) from the standpoint of the law in force in northern Cyprus as such (see paragraphs 148-49 and 174, and paragraphs 76-79 respectively). Here is what the Commission said in its opinion in Loizidou :

“76. The Commission has examined whether the applicant was deprived of her liberty 'in accordance with a procedure prescribed by law', as required by Article 5 § 1. It recalls that, on the question whether an arrest is 'lawful', including whether it complies with 'a procedure prescribed by law', the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. ...

77. As regards domestic law in [northern] Cyprus , the Commission notes that, under Chapter 155, section 14(1), sub-paragraphs (b) and (c) of the Criminal Procedure Law ..., any police officer may, without warrant, arrest any person who commits in his presence [an] offence...

78. The Commission further notes that the applicant, having crossed the buffer-zone, was arrested in northern Cyprus by Turkish Cypriot policemen ...

79. Having regard to the above elements, the Commission finds that the arrest and detention of the applicant in [northern] Cyprus, by police officers acting under Chapter 155, section 14, of the Criminal Procedure Law, took place 'in accordance with a procedure prescribed by law', as required by Article 5 § 1 of the Convention.”

9. As Judge Baka said in his dissenting opinion in Loizidou v. Turkey (merits) (judgment of 18 December 1996 , Reports of Judgments and Decisions 1996-VI):

“... 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 .”

Moreover, the Court itself, in paragraph 45 of Loizidou (merits), noted:

“[I] nternational law recognises the legitimacy of certain legal arrangements and transactions in such a situation [international non-recognition of the 'TRNC', for instance as regards the registration of births, deaths and marriages, 'the effects of which can be ignored only to the detriment of the inhabitants of the [t] erritory ' (see, in this context, Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16, p. 56, §. 125).”

Would it not be pertinent to enquire whether non-attribution of “legal validity for purposes of the Convention to such provisions as Article 159 of the fundamental law on which the Turkish Government rely” (see paragraph 44 of Loizidou (merits)) would not amount to ignoring the effects “only to the detriment of the inhabitants of the [t] erritory ”, to use the words quoted by the Court in paragraph 45 of the same judgment? Especially when it is remembered that tens of thousands of Turkish Cypriots were displaced from southern to northern Cyprus after the Vienna agreements.

10. That is why the Court was careful to emphasise, in connection with the exhaustion of remedies in the present case, that “its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that remedies are ineffective in the 'TRNC' or that applicants are absolved from the obligation under Article 35 § 1 to have normal recourse to the remedies that are available and functioning” (see paragraph 37 of the present judgment).

11. In the present case the majority dismissed the respondent Government's preliminary objection of inadmissibility for non-exhaustion of domestic remedies, in particular because they were unable to prove to the Court that there had been cases similar to this one. Are the respondent Government responsible for the fact that before the proceedings instituted by the applicant no action had been brought before the national authorities to secure recognition, through a decision, of a right allegedly held under the Convention?

12. I feel I must emphasise once more that northern Cyprus is not a vacuum. Notwithstanding its international situation, its provides for all the needs of its inhabitants. The judicial authorities, in particular, discharge their duties there as in any other State. They try the cases submitted to them, which may be brought before them both by nationals of the country and by aliens, notably by British companies.

13. My second conclusion is that this case should have been declared inadmissible for failure to exhaust domestic remedies, as the Convention requires. That being so, the complaint concerning Article 13 also falls.

14. Lastly, this case is not about either freedom of expression or freedom of association. Moreover, the applicant has expressed his opinion both in his writings and publications and through his application to the Commission. He may, if he wishes, gain access to southern Cyprus otherwise than by crossing the “green line”. He was prevented from crossing the “green line” and the buffer-zone not just by the authorities of the respondent Government but pursuant to international agreements enforced in the first place by the UN forces, and by the Turkish-Cypriot forces in the north and Greek-Cypriot forces in the south.

15. In truth, the present case is purely and simply about freedom of movement. But that freedom is not absolute. In public international law there is no general right to cross a State border or demarcation line to gain access to this or that property or to meet associates or friends in the name of freedom of association. I refer in that connection to what Judges Bernhardt and Lopes Rocha said in their dissenting opinion in Loizidou (merits), concerning access to immovable property: “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.” Mr Djavit An's case was the result of the same closure of the same borderline.

16. I will close my remarks on the present judgment with a reference, mutatis mutandis , to the conclusions of the European Commission of Human Rights in Loizidou (opinion of the Commission, cited above):

“97. The Commission considers that a distinction must be made between claims concerning the peaceful enjoyment of one's possessions and claims of freedom of movement. It notes that 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 .

98. 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. 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 (see, mutatis mutandis , applications nos. 7671/76 etc., 15 foreign students v. the United Kingdom, decision of 19 May 1977, DR 9, p. 185, at pp. 186 ff.).

99. The Commission therefore finds that the applicant's claim of free access to the north of Cyprus , which has been examined above (at paragraphs 81 ff.) under Article 5 of the Convention, cannot be based on her alleged ownership of property in the northern part of the island.

100. It follows that it discloses no issue under Article 1 of Protocol No. 1.

...

101. The Commission concludes ... that there has been no violation of Article 1 of Protocol No. 1 to the Convention.”

17. My third conclusion is that just as a person in police custody or detention pending trial cannot claim to be the victim of an infringement of his right to respect for his family life (Article 8) or his freedom of association (Article 11) on account of the fact that it is impossible for him to participate in a meeting of the association to which he belongs, so in the present case it cannot be considered that there has been a violation of Article 11 of the Convention as regards the applicant.