The factual and legal situation is in my view different when certain historical events have given rise to a situation such as the closing of a border with automatic consequences in a great number of cases. In the present case, the decisive events date back to the year 1974. Since that time, Mrs Loizidou has not been able to visit her property in northern Cyprus. This situation continued to exist before and after the adoption of the Constitution of the so-called "Turkish Republic of Northern Cyprus" of 1985 and the expropriation proclaimed therein. I share the doubts of the Court (see paragraphs 45 - 47 of the judgment) concerning the validity of the expropriation; however this is not decisive. Turkey has recognised the jurisdiction of the Court only "in respect of facts ... which have occurred subsequent to the date of deposit of the present declaration"; the closing of the borderline in 1974 is in my view the material fact and the ensuing situation up to the present time should not be brought under the notion of "continuing violation".
Therefore, the preliminary objection ratione temporis raised by Turkey is in my view legally well-founded.
3. Even if I had been able to follow the majority of the Court in this respect, I would still be unable to find a violation of Article 1 of Protocol No. 1 (P1-1). As explained above, the presence of Turkish troops in northern Cyprus is one element in an extremely complex development and situation. As has been explained and decided in the Loizidou judgment on the preliminary objections (23 March 1995, Series A no. 310), Turkey can be held responsible for concrete acts done in northern Cyprus by Turkish troops or officials. But in the present case, we are confronted with a special situation: it is the existence of the factual border, protected by forces under United Nations command, which makes it impossible for Greek Cypriots to visit and to stay in their homes and on their property in the northern part of the island. The presence of Turkish troops and Turkey's support of the "TRNC" are important factors in the existing situation; but I feel unable to base a judgment of the European Court of Human Rights exclusively on the assumption that the Turkish presence is illegal and that Turkey is therefore responsible for more or less everything that happens in northern Cyprus.
DISSENTING OPINION OF JUDGE BAKA
In the present case it is extremely difficult to determine whether, on the one hand, the violation complained of by the applicant has been a continuous one or whether, on the other hand, there has been an instantaneous expropriation of the applicant's property with continuing effects. I agree with the majority that the answer to this question has direct consequences for deciding the Government's preliminary objection ratione temporis.
On the basis of the facts of the case, I have come to the conclusion that Mrs Loizidou lost overall control of her property as a direct consequence of the Turkish military action in 1974. Since that time she has not been able to possess, to use and enjoy her property in any way nor even have access to it. It can thus be said that there has been a form of de facto expropriation.
However, in the period between 1974 and 1985 the applicant still held legal title to her land. She purportedly lost ownership by the formal act of expropriation pursuant to Article 159 (1) of the "TRNC" Constitution of 7 May 1985 which sought to regularise the existing de facto situation.
Although I share the view of the Court concerning the non-recognition of the "TRNC" by the international legal community and the legal consequences flowing from this, I am also of the opinion that its legal provisions "have been invoked by the Turkish Government". In the instant case the legal situation in respect of property issues is very close to those of the former communist States in central and eastern Eu
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