ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 18.12.1996 "ЛОИЗИДУ (LOIZIDOU) ПРОТИВ ТУРЦИИ" [рус. (извлечение), англ.]

hether the denial of access to the applicant's property resulted in her loss of control, amounting to a breach of Article 1 of Protocol No. 1 (P1-1), which occurred due to the interference with the
peaceful enjoyment of her possessions. Consequently I also dissented on the issue of the imputability of the interference to Turkey, and on whether there has been a violation of Article 1 of Protocol No. 1 (P1-1) (points 2 and 3 of this judgment's operative provisions).
4. In the present case an interesting interplay took place between casting a vote on the preliminary objection, and then on the merits. It is worth mentioning it as an obiter dictum to my opinion.
In the memorials and at the hearing we were witness to the exchanges about the "proper" calculation of the votes of the members of the Commission at the admissibility and at the final stages. It appeared as obvious that an individual member of the Commission might indeed opt for any one of the following three choices: (a) to hold that there was no breach of the Convention because of the prior acceptance of the validity of the preliminary objection without going into the merits; (b) to hold that there was no breach after firstly accepting the preliminary objection, and then going into the merits, or (c) to hold that there was a breach after firstly accepting the preliminary objection, and then going into the merits.
In retrospect, the majority of eight members of the Commission who voted for "non-violation" of Article 1 of Protocol No.1 (P1-1) was reinterpreted as being composed of three members who found no violation after going into the merits, and five members who voted for non-admissibility of the case, and had either (a) not expressed a valid opinion on the issue of violation at the merits stage (the Cyprus Government's position), or (b) had expressed a valid opinion on this (this seems to be President Trechsel's view, although not stated in exactly such terms).
All in all, two kinds of principled reasoning about the issue seem possible at first sight:
(a) The two votes, at the admissibility/preliminary objections stage and at the merits stage, are independent of each other. The decision about the jurisdiction appears autonomous from a procedural point of view. But it may not be autonomous in relation to the merits considering the facts, the law, or the philosophical views of a judge. For example, a judge may adhere to the doctrine of judicial restraint, and therefore vote conservatively in favour of the preliminary objection, while the merits of the case may on the other side be of quite another concern for him or for her.
Moreover, the "Scandinavian doctrine" of minority respect for majority decision in the follow-up cases as applied to the present issue would recommend that a judge who was overruled on the preliminary objection should recognise its authority immediately. Because he feels, or actually is bound by the decision on Court's jurisdiction, he should go into the merits all the way - by expressing views and by casting his vote.
(b) The second kind of reasoning would advocate interdependence of the two votes, at the preliminary objections and at the merits stages. If the judge takes the view that a preliminary objection is well-founded, he has to vote for non-violation, given that in his view the Court is not competent to deal with the issue and should therefore never decide on the merits. If the dissenting judge's view were to prevail, the Court would not be seized, the applicant's claim would not be considered on its merits, and the violation would consequently not be found.
The present case departs from the two options discussed in the sense that the decision on the preliminary objection ratione temporis depended upon a prior examination of certain aspects of the merits. Therefore, the choice between the two options is not exhaustive of all possibilities. As for myself

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