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

onae, and what is more on the basis of the case-law cited above (judgment of 26 June 1992, Series A no. 240, p. 29, para. 91).
In its report in the cases of Chrysostomos and Papachrysostomou the Commission observed: "The Commission, having regard to the developments described above and finding no indication of direct involvement of Turkish authorities in the applicants' detention, and the proceedings against them, after their arrest on 19 July 1989, sees no basis under the Convention for imputing these acts to Turkey" (see paragraph 170 of the report).
The present judgment breaks with the previous case-law since in dealing with the question whether there was jurisdiction ratione personae it applies the criteria for determining whether there was jurisdiction ratione loci, although the conditions for doing so have not been met. Thus, for the first time, the Court is passing judgment on an international law situation which lies outside the ambit of the powers conferred on it under the Convention's supervision machinery. In this judgment the Court projects Turkey's legal system on to northern Cyprus without concerning itself with the political and legal consequences of such an approach.
3. I would also emphasise that not only does northern Cyprus not come under Turkey's jurisdiction, but there is a (politically and socially) sovereign authority there which is independent and democratic. It is of little consequence whether that authority is legally recognised by the international community. When applying the Convention the actual factual circumstances are the decisive element. The Commission and the Court have stated more than once that the concept of "jurisdiction" within the meaning of Article 1 of the Convention (art. 1) covers both de facto and de jure jurisdiction. In northern Cyprus there is no "vacuum", whether de jure or de facto, but a politically organised society, whatever name and classification one chooses to give it, with its own legal system and its own State authority. Who today would deny the existence of Taiwan? That is why the Commission in its report in the Chrysostomos and Papachrysostomou cases examined the law in force in northern Cyprus as such, and not Turkish law in order to determine whether the applicants' detention had been lawful (see paragraphs 148, 149 and 174 of the report).
4. I now come to the heart of the problem. I voted in favour of upholding the Turkish Government's preliminary objection ratione temporis and against finding a violation of Article 1 of Protocol No. 1 (P1-1). As Judge Bernhardt, the Vice-President of the Court, rightly pointed out in his dissenting opinion, some general remarks are indispensable before any discussion of the two main aspects of the case can begin.
I agree entirely with that part of Judge Bernhardt's opinion where he states: "A unique feature of the present case is that it is impossible to separate the situation of the individual victim from a complex historical development and a no less complex current situation. The Court's judgment concerns in reality not only Mrs Loizidou, but thousands or hundreds of thousands of Greek Cypriots who have (or had) property in northern Cyprus. It might also affect Turkish Cypriots who are prevented from visiting and occupying their property in southern Cyprus. It might even concern citizens of third countries who are prevented from travelling to places where they have property and houses. The factual border between the two parts of Cyprus has the ... consequence that a great number of individuals are separated from their property and their former homes."
The Cypriot conflict between the Turkish and Greek communities is mainly attributable to the 1974 coup {d'etat}, carried out by Greek Cypriots with the manifest intention of achieving union with Greece (enosis), which the Cypriot head of state at the time vigorously criticised before the international bodies. After this



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