DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

I regret, firstly , that I am unable to agree with the Court's decision to dismiss the Government's preliminary objection and its finding that there has been a violation of Article 1 of Protocol No. 1. Secondly , I disagree with the method used to deal with this case.

Allow me to explain:

I. Merits of the case

1. As regards the first point, I would refer, in particular, to my dissenting opinion on the merits in the case of Loizidou v. Turkey (judgment of 18 December 1996, Reports 1996-VI). All I need do here is to recapitulate briefly the special circumstances of that case, while stressing its inherently political nature:

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 an 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 the report adopted by the European Commission of Human Rights on 8 July 1993 in the Chrysostomos and Papachrysostomou v. Turkey case, applications nos. 15299/89 and 15300/89, § 42; see also the report adopted by the Commission on the same day in the case of Loizidou v. Turkey , application no. 15318/89, §§ 76 et seq.)

7. 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.

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 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 the above-mentioned Titina Loizidou report 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 (see paras. 43-45 ...) 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”; they are not a “park” that one can walk through as one wishes.

8. We must bear in mind the very marked political colouring of this 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” (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 16 September 1996, §§ 71/3, 73/2, 77). 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).

9. 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 reports in the above-mentioned Chrysostomos and Papachrysostomou v. Turkey and Titina Loizidou v. Turkey cases, 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 148-149 and 174 and paragraphs 76-79 respectively). Here is what the Commission's report in the Loizidou case said:

“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 Cyprus, the Commission notes that, under chapter 155, section 14(1), sub-paragraphs (b) and (c) of the criminal Procedure Law (see paragraph 43 ...), any police officer may arrest, without warrant, 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 (cf. paras. 39 et seq. ...).

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.”

10. As Judge Baka said in his dissenting opinion in the Loizidou v. Turkey case (judgment on the merits of 18 December 1996):

“... 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 its above-mentioned Loizidou judgment, noted:

“International law recognises the legitimacy of certain legal arrangements and transactions in such a situation, 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 territory' (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 the Loizidou judgment on the merits, cited above) would not amount to “ignoring the effects only to the detriment of the inhabitants of the territory”, 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.

11. That is why the Court was careful to emphasise, in connection with the exhaustion of remedies that: “Its ruling (on the matter) is confined to the particular circumstances of the... 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 Djavit An v. Turkey judgment of 20 February 2003).

12. I feel I must emphasise once more that northern Cyprus is not a vacuum. Notwithstanding its international situation, it 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 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 in the name of right of property. I refer in that connection to what Judges Bernhardt and Lopes Rocha said in their dissenting opinion in the Loizidou case (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.”

14. I will close my remarks on the first point with a reference, mutatis mutandis , to the conclusions of the European Commission of Human Rights in the above-mentioned Loizidou case:

“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 f.)

99. The Commission therefore finds that the applicant's claim of free access to the north of Cyprus, which has been examined above (at paras. 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.”

II. The Court's methodology

15. Secondly , I find it difficult to comprehend why the Court should be so eager and anxious to find that the respondent State has violated the applicants' right of property. The point is of undeniable importance both as regards the process of seeking a solution to the Cypriot international crisis and the resolution of Loizidou -type cases.

16. The international bodies dealing with the Cypriot crisis, including the Council of Europe, have said on more than one occasion that the dispute will be resolved through negotiations and bilateral talks. Indeed, good progress is currently being made. It is necessary, therefore, to cooperate with that process and, above all, to avoid stirring up trouble.

17. On that theme, a desired change has just been brought about with the enactment of the Law on “compensation for immovable properties located within the boundaries of the Turkish Republic of Northern Cyprus, which are within the scope of Article 159, paragraph (4) of the Constitution”. The Law was passed and entered into force on 30 June 2003.

Section 3 of the Law, which sets out the aims of the legislation, provides:

“The purpose of this Law is to regulate the necessary procedure and conditions to be complied with by persons to prove their legal rights which they claim in respect to immovable properties within the scope of Article 159, paragraph (4) of the Constitution of the Turkish Republic of Northern Cyprus as well as the basis on which compensation shall be paid to such persons.”

18. This legislation undoubtedly constitutes a major development of relevance to all applications raising similar problems to those raised in the Loizidou case.

In my opinion, before delivering its judgment in the present case, the Court should have examined the new situation in the light of the new legislation and at least requested observations from the respondent Government, particularly bearing in mind that the latter were presumably unaware that delivery of the judgment was imminent.

19. Instead of adopting that approach, which I believe would have been only reasonable and fair for it to do, the Court bluntly stated (in reply to the Government's letter of 2 July 2003 raising the preliminary objection of failure to exhaust domestic remedies): “the Government did not submit any observations at the admissibility stage of the proceedings, although they were given ample opportunity to do so. On that account, the Government may be considered in principle estopped from raising their objections to admissibility at this stage” (see paragraph 17 of the judgment), as if the Law of 30 July 2003 already existed when the question of the admissibility of the application was considered.

The Court held that, following the decision on the admissibility of the application, the preliminary objection of failure to exhaust domestic remedies could no longer be raised (see paragraph 22 of the judgment). That, to my mind, is an erroneous interpretation of the relevant provisions of the Convention.

The final paragraph of Article 35 (admissibility criteria) reads as follows: “The Court shall reject any applications which it considers inadmissible under this Article. It may do so at any stage of the proceedings”.

Article 37 § 1 provides:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that...

(b) the matter has been resolved;

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

20. There is, therefore, nothing in the Convention to prevent the Court from reopening an admissibility decision, particularly as the second paragraph of Article 37 provides: “The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course”.

Above all, the applicants' position would not have been prejudiced if, rather than delivering a judgment finding a violation shortly after a major, radical change in the existing situation, the Court had decided to re-examine the alleged complaint in a new light.

The lack of urgency is confirmed by the Court's decision to reserve the question of the application of Article 41, as it is not ready for determination. In other words, there was no immediate hurry. Surely there must be a danger that the finding of a violation will undermine the positive progress that has been noted in the situation over the past few months?

21. It is regrettable that in a case as sensitive and unusual as the present one the Court should have failed to take into account the political and legal context, instead taking refuge in a strict and rigid application of the time-limits for lodging observations on the issue of admissibility.

22. In view of the provisions of the aforementioned Articles 35 and 37 of the Convention, nothing in the Convention or the case-law of the Court and the former Commission, can serve to justify such a restrictive approach. In the Donnelly and Others v. the United Kingdom case, the Commission initially declared the applications inadmissible before, in a subsequent reversal of that decision, holding that domestic remedies had not been exhausted (see Donnelly and Others v. the United Kingdom , application nos. 5577-5583/72, Commission decision of 15 December 1975, DR 4, p. 174 et seq.) and the applications were inadmissible. The Court too has examined the circumstances in which a new domestic remedy or new information may be relied on at an advanced stage in the examination of the merits of a case (see Artico v. Italy , judgment of 13 May 1980, Series A no. 37, p. 13, § 27).

23. The introduction of new legislation providing for compensation constitutes, over and above a remedy in the strict sense, “new information” of the utmost importance and, as such, cannot be disregarded by the Court or interpreted in a way that is purely procedural.

The “new information” in the instant case is precisely that the applicants' rights of property will be recognised, and the applicants will be entitled to compensation simply by proving their title (as is, of course, entirely normal in any legal system).

The new legislation is not merely a “remedy” akin to the Pinto Law. It goes much further, as it calls into question the initial violation itself found in the Loizidou case in 1996 and, therefore, all the parameters, including standing as a victim and the possibility of obtaining redress in domestic proceedings despite the difficult political context and economic and social difficulties faced by Turkish Cypriots since the events of 1974.

The legislation calls into question Article 159 of the Constitution, on which the Loizidou case was based, and which provided for the extinguishment of the right of property. By recognising a right to compensation for claimants with clearly established titles to property, it thereby recognises the continuing rights of property of the persons concerned. The Court has every interest, for example, in comparing these cases with the situation examined in the cases of Pisano and Kalantari (see Pisano v. Italy [GC] (striking out), no. 36732/97, 24 October 2002; and Kalantari v. Germany (striking out), no. 51342/99, ECHR 2001-X). In both judgments, the Court examined, at an advanced stage in the proceedings, the fundamental parameters of the applications, including such issues as standing as victims, reparation and resolution of the dispute.

The Court was not prevented by either the Convention or its case-law from assuming its responsibility as an international Court to examine what the implications of such important new information were for a series of applications that raised major political and legal issues.

The Court should have focused on that aspect of the case instead of confining itself to what I believe to be an erroneous interpretation of the Convention, purportedly based on the notion of “lateness”.

24. That approach is made all the more regrettable by the fact that it reflects neither the spirit nor the letter of the Convention. It should not be forgotten that the protective machinery set up by the Convention gives preference to the friendly settlement of disputes arising under its provisions: paragraph 1 (b) of Article 38 provides that the Court shall firstly place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter. Since the Handyside v. the United Kingdom case (judgment of 17 December 1976, Series A no. 24, § 48), the Court has repeatedly said that the Convention the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Is any reminder needed that under the Convention system a finding of a violation of a protected right by a State party is a means to be used only as a last resort?

25. Like it or not, say it or deny it, the political nature of cases such as Loizidou is indisputable. Since the Loizidou judgment, the Court has in a series of judgments and decisions proved adept at taking into account the “political upheaval brought about by the Second World War and its disastrous consequences” for which global political solutions needed to be found. It has thus succeeded in promoting concepts which go beyond the interests, and even rights, of the individual by adopting a realistic and pragmatic approach that seeks to provide solutions that are balanced or will be beneficial in the long term (see, mutatis mutandis , Wittek v. Germany , no. 37290/97, § 61, 12 December 2002; Prince Hans-Adam of Liechtenstein v. Germany [GC], no. 42527/98, § 69, ECHR 2001-VIII; and Gorzelik and Others v. Poland , no. 44158/98, § 69, 20 December 2001). In these judgments, the Court adopted a pragmatic approach against the complex historical political background that required a precise evaluation of the competing interests and even of the individual rights and freedoms. The Court correctly perceived the individual interest as being relative and having to yield to interests that affected the community as a whole and were of vital importance to the group, nation or State.

26. It is my view that my foregoing remarks in favour of a re-examination of all the Loizidou -type applications following the major, positive development in the situation and the circumstances surrounding these cases should encourage the Court to adopt a wiser and fairer approach (and one that I would recommend) than that it has felt obliged to take.