ECHR judgment of 29 January 2019 in the case of Guzelyurtlu and Others v. Cyprus and Turkey (application No. 36925/07).
In 2007, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Cyprus and Turkey.
In the case, the applicants ’ application was successfully examined regarding the lack of effective cooperation between the Turkish and Cypriot authorities and the failure by the authorities of these states to take all reasonable measures necessary to ensure and implement an effective criminal investigation. The case does not constitute a violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the Cyprus authorities. The case has violated the requirements of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the Turkish authorities.
Circumstances of the case
The applicants were close relatives of three Cypriot citizens of Turkish Cypriot origin who were found dead in 2005 with gunshot wounds in a territory controlled by the Cypriot authorities. A criminal investigation was immediately launched by both the authorities of Cyprus and Turkey (including the authorities of the Turkish Republic of Northern Cyprus, hereinafter - the TRNC). Although the Cypriot authorities had identified and eight suspects detained and questioned by the authorities of the TRNC, both investigations had reached an impasse and were suspended pending further developments. Although the criminal cases were not terminated, no specific action was taken on them after 2008. The Turkish authorities were awaiting the transfer of all the evidence in the case in order to bring the suspects to trial, and the proceedings by the Cypriot authorities completely stopped when the Turkish authorities returned the extradition requests of the Cypriot authorities. The measures taken as a result of the mediation of the United Nations Peacekeeping Force in Cyprus (hereinafter - UNFICYP) were unsuccessful.
In the judgment of the present case of April 4, 2017, the Chamber of the European Court found a violation of Article 2 of the Convention in its procedural aspect by the Turkish authorities (unanimously) and Cyprus (adopted by five votes in favor, with two against) ") due to the fact that the authorities of both respondent states failed to effectively cooperate with each other and did not take all reasonable measures necessary to ensure and implement an effective criminal investigation.
On September 18, 2017, at the request of the Turkish and Cyprus authorities, the case was transferred to the Grand Chamber of the European Court.
QUESTIONS OF LAW
Regarding the application of Article 1 of the Convention (territorial jurisdiction of the Turkish authorities). Only in very few cases did the European Court have had to examine complaints of a violation of Article 2 of the Convention in its procedural and legal aspect when the death occurred outside the jurisdiction of the state in respect of which the issue of compliance with a procedural obligation was raised. It follows from the case-law of the European Court that under such circumstances, if the investigating authorities or the courts of a Contracting State started their own investigation or criminal proceedings, then this was sufficient to establish the existence of a jurisdictional connection within the meaning of Article 1 of the Convention between that State and the relatives of victims who later applied with complaints to the Court. In the applicants ’case, the TRNC authorities launched their own investigation into the murder criminal case, and thus established a“ jurisdictional connection ”between the applicants and the Turkish authorities, who were responsible for violating the Convention in connection with the acts or omissions of the TRNC authorities.
At the same time, the situation in Cyprus had "special features." Firstly, Turkey was seen by the international community as an occupier of the northern part of Cyprus, and the international community did not recognize TRNC as a state under international law. The territory of Northern Cyprus was under the effective control of the Turkish authorities for the purposes of the Convention. Secondly, the murder suspects fled to the TRNC, and therefore, the Cypriot authorities could not continue their own investigation into these suspects and, accordingly, fulfill their obligations under the Convention.
Given these two circumstances, each of which individually would be sufficient to establish a jurisdictional connection, the jurisdiction of the Turkish authorities was established. Any other conclusion would lead to a legal vacuum in the system of protecting human rights in Cyprus and thereby create a safe haven on the territory of the TRNC for persons who committed murder and fled from the territory controlled by the authorities of Cyprus, which would prevent the application of criminal laws adopted by the Government of Cyprus to protect the right to life of its citizens and any other persons under their jurisdiction.
The jurisdiction of the Turkish authorities has been established (adopted unanimously).
Regarding compliance with Article 2 of the Convention (procedural aspect). The procedural obligation to investigate the killings lay with the authorities of both respondent States. The authorities of both states quickly carried out a significant number of investigative actions, and nothing questioned the adequate nature of these investigations. The crucial issue was the availability and scope of the cooperation obligation as a component of the procedural obligation provided for in Article 2 of the Convention.
According to Article 2 of the Convention, the authorities of both respondent states may have a bilateral obligation to cooperate with each other, implying at the same time the obligation to request and receive assistance. Such an obligation is consistent with the effective protection of the right to life guaranteed by Article 2 of the Convention. States should take all possible measures to cooperate with each other, conscientiously using the opportunities available to them on the basis of relevant international documents on mutual assistance in the legal sphere and in criminal matters.
The procedural obligation to cooperate, as enshrined in Article 2 of the Convention, should be interpreted in the light of international treaties and agreements in force between the Contracting States, with the most coherent and harmonious application of the Convention and these documents, which should not lead to conflict between them. In this context, the procedural obligation to cooperate could be violated in relation to the state, which was requested to seek help only if it did not use appropriate cooperation mechanisms on the basis of relevant international treaties, and in relation to the state to which the request for assistance was sent, if it did not respond appropriately or failed to indicate the legitimate grounds for refusing the cooperation requested under these documents.
A feature of the applicants' case was the lack of cooperation from a de facto entity existing on the territory of Cyprus recognized by the international community but under the effective control of Turkey from the point of view of the Convention. Since no official diplomatic relations were established between the authorities of the two respondent states, international treaties to which both states were parties could not be the only guideline in determining whether both respondent states used all the opportunities available to them to cooperate with each other. In the absence of diplomatic relations, formal forms of cooperation would probably not have led to any results, in which case states may be required to use less formal and direct methods of cooperation, for example, with the help of third states or international organizations. In view of the foregoing, the Court should have determined whether the authorities of the respondent states used all the means reasonably available to them to request and provide the cooperation necessary for the effectiveness of the investigation and the proceedings as a whole.
(a) The Government of Cyprus. (i) Did the Cypriot authorities use all means reasonably available to them to seek the extradition / extradition of persons suspected by the Turkish authorities. As a result of the identification of possible suspects in the early stages of the investigation, the Cypriot authorities sent “red” notifications to Interpol in order to determine the whereabouts of the suspects and their detention for extradition. These requests were published by Interpol. The Cypriot Bureau of Interpol also sent e-mails to the Turkish Ministry of Internal Affairs, indicating that the Cypriot authorities are looking for suspects and demand that they be detained if they enter Turkey.
The authorities of Cyprus in the early stages of the investigation tried to agree on the conditions for the extradition of suspected TRNCs through UNFICYP. Nevertheless, even then it was obvious that neither the Turkish authorities nor the TRNC authorities were going to extradite the suspects. In such circumstances, it is impossible to criticize the Cypriot authorities for trying to obtain extradition with the help of UNFICYP from the beginning and, when these efforts ultimately failed, they sent extradition requests to Turkey.
Extradition requests were transmitted to the Turkish authorities through the country's embassy in Athens. Given the lack of diplomatic relations between Cyprus and Turkey, forwarding requests through the staff of the respective embassies in Athens under special circumstances, the case may be considered the only possible means available to the authorities of Cyprus.
(ii) Whether the Cypriot authorities were required to provide all evidence to the authorities of the TRNC or Turkey. The applicants' case should be distinguished from earlier cases in which the European Court recognized the legality within the meaning of the Convention of the remedies or measures taken by the authorities of the TRNC in relation to the residents of the TRNC or persons affected by their actions. In previous cases, the Court found the means and actions taken lawful to the extent that it was necessary for the Turkish authorities to ensure that the rights guaranteed by the Convention are respected in Northern Cyprus and to compensate for any harm that may be attributed to them.
In the present case, the issue that should have been resolved was whether the Cypriot authorities were obliged to provide all the evidence in the criminal case to the TRNC authorities, which conducted a parallel investigation into the killings on the basis of the relevant TRNC legislation. The Cypriot authorities were ready to hand over all the evidence to UNFICYP so that the latter could establish whether prima facie evidence was sufficient, provided that in this case the TRNC authorities would hand over the suspects to them. Since the TRNC authorities refused to do so, the Cypriot authorities also refused to provide evidence. The provision of all materials of the criminal case to the authorities of the TRNC, while the possibility of using these materials for conducting a trial against suspects in the TRNC, and in the absence of any guarantees that the suspects would be extradited to the authorities of Cyprus, would go beyond mere cooperation between the police or the prosecution authorities. Essentially, this would be a transfer of the criminal case by the Cypriot authorities to the TRNC courts, and the Cypriot authorities would thus cede their jurisdiction over the killings committed on their territory to the benefit of unrecognized education courts existing on the territory of Cyprus. The exercise of criminal jurisdiction is one of the main characteristics of state sovereignty. In such a specific situation, the rejection of the assignment of jurisdiction in a criminal case in favor of the TRNC courts did not seem unreasonable.
(iii) Whether the Cypriot authorities were obliged to resort to other forms of cooperation proposed by UNFICYP. In the context of the mediation efforts undertaken by UNFICYP, various forms of cooperation have been proposed in order to find a compromise between the authorities of Cyprus and the TRNC. However, such forms of cooperation alone could not contribute to the prosecution and trial of suspects. It was not established in the case that these alternatives, in particular, the possibility of organizing a trial in neutral territory, had a fairly solid basis in the laws of the respective countries and international law. Under the circumstances, Article 2 of the Convention did not require the Cypriot authorities to use these opportunities for cooperation.
There was no violation of the requirements of Article 2 of the Convention in the case (adopted by 15 votes in favor, with two against).
(b) The Government. Turkish authorities ignored extradition requests and left them unanswered. The Turkish authorities should have expected explanations as to why they considered the extradition inadmissible under Turkish law or the European Convention on Extradition. According to the provisions of the latter, the state from which extradition is requested is obliged to inform the requesting state of its decision regarding extradition and in case of refusal to explain the reasons for its decision. The obligation to cooperate under Article 2 of the Convention should be interpreted in the light of these provisions, and therefore implies the obligation of the State to consider and provide a reasoned response to any request for extradition from the other Contracting State in respect of persons suspected of murder or illegal actions , of which it was known that they are located on the territory of this state or under its jurisdiction.
The Government did not make the minimum efforts required of them in the circumstances of the case, and therefore did not fulfill their obligation to cooperate with the Cypriot authorities in order to effectively investigate the killings of the applicants' relatives.
The case contained a violation of Article 2 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court ordered that each of the applicants be paid EUR 8,500 in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.