CEDH · CASELAW;CLIN;ENG — 29 janvier 2019

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Cyprus and Turkey [GC] - 36925/07 Judgment 29.1.2019 [GC] Article 1 Jurisdiction of States Jurisdiction of Turkey in respect of Article 2 procedural obligation arising following murders occurring in the Cypriot-Government controlled area of Cyprus Article 2 Positive obligations Article 2-1 Effective investigation Cyprus’ refusal to waive its criminal jurisdiction in favour of the “TRNC” courts: no   violation   Failure of Turkey to cooperate with Cyprus in murder investigation: violation Facts – The applicants were close relatives of three Cypriot nationals of Turkish-Cypriot origin who were found dead with gunshot wounds in the Cypriot-Government-controlled area of the island in 2005. Criminal investigations were immediately opened by both the Cypriot authorities and by the Turkish (including the “Turkish Republic of Northern Cyprus” – the “TRNC”) authorities. However, although eight suspects were identified by the Cypriot authorities and were arrested and questioned by the “TRNC” authorities, both investigations reached a stalemate and the files were held in abeyance pending further developments. Although the investigations remained open nothing concrete was done after 2008. The Turkish Government were still waiting for all the evidence in the case to be handed over so they could try the suspects, while the Cypriot investigation came to a complete halt following the return by Turkey of extradition requests by the Cypriot authorities. Efforts made through the good offices of the United Nations Peacekeeping Force in Cyprus (UNFICYP) were unsuccessful. In a judgment of 4 April 2017 (see Information Note 206 ), a Chamber of the Court held that there had been a procedural violation of Article   2 by Turkey (unanimously) and by Cyprus (five votes to two) on account of the failure of both States to cooperate effectively with each other and take all reasonable steps necessary to facilitate and realise an effective investigation into the case. On 18 September 2017 the case was referred to the Grand Chamber at the request of the Governments of both respondent States. Law – Article 1 ( territorial jurisdiction as regards Turkey ): There had been very few cases in which the Court had had to examine complaints under the procedural limb of Article   2 where the death had occurred under a different jurisdiction from that of the State in respect of which the procedural obligation was said to arise. It appeared from the Court’s case-law that, in such circumstances, if the investigative or judicial authorities of the Contracting State had instituted their own criminal investigation or proceedings, that was sufficient to establish a jurisdictional link for the purposes of Article   1 between that State and the victim’s relatives who later brought proceedings before the Court. In the applicants’ case the “TRNC” authorities had instituted their own criminal investigation into the murder and? in those circumstances, there was a “jurisdictional link” between the applicants and Turkey, whose responsibility had been engaged under the Convention by virtue of the acts and omissions of the “TRNC” authorities. In addition, there were “special features” related to the situation in Cyprus. Firstly, Turkey was regarded by the international community as being in occupation of the northern part of Cyprus and the international community did not recognise the “TRNC” as a State under international law. Northern Cyprus was under the effective control of Turkey for the purposes of the Convention. Secondly, the murder suspects had fled to the “TRNC” and, as a consequence, Cyprus had been prevented from pursuing its own criminal investigation in respect of those suspects, and thus from fulfilling its Convention obligations. Having regard to those two elements, either of which would have sufficed individually to establish a jurisdictional link, Turkey’s jurisdiction was established. Any other finding would have resulted in a vacuum in the system of human rights protection in the territory of Cyprus thereby running the risk of creating a safe haven in the “TRNC” for murderers fleeing the territory controlled by Cyprus and therefore impeding the application of criminal laws put in place by the Government of Cyprus to protect the right to life of its citizens and, indeed, of any individuals within its jurisdiction. Conclusion : within the jurisdiction of Turkey (unanimously). Article 2 ( procedural aspect ): The procedural obligation to investigate arose in respect of both respondent States. Both States had taken a significant number of investigative steps promptly and there was nothing to question the adequacy of those investigations. The crux of the problem was the existence and scope of a duty to cooperate as a component of the procedural obligation under Article   2 of the Convention. Article 2 might require from both States a two-way obligation to cooperate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. Such a duty was in keeping with the effective protection of the right to life as guaranteed by Article   2. The States concerned had to take whatever reasonable steps they could to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. The procedural obligation to cooperate under Article   2 had to be interpreted in the light of international treaties or agreements applicable between the Contracting States concerned, following as far as possible a combined and harmonious application of the Convention and those instruments, which should not result in conflict or opposition between them. In that context, the procedural obligation to cooperate would only be breached in respect of a State required to seek cooperation if it had failed to trigger the proper mechanisms for cooperation under the relevant international treaties; and in respect of the requested State, if it had failed to respond properly or had not been able to invoke a legitimate ground for refusing the cooperation requested under those instruments. A special feature in the applicants’ case was that the alleged lack of cooperation involved a de facto entity set up within Cyprus’s internationally recognised territory but which was under the effective control of Turkey for the purposes of the Convention. As the two respondent States had no formal diplomatic relations, the international treaties to which both States were parties could not be the sole framework of reference in determining whether both States had used all the possibilities available to them to cooperate with each other. In the absence of formal diplomatic relations, formalised means of cooperation were more likely to fail and States might be required to use other more informal or indirect channels of cooperation, for instance through third States or international organisations. In view of that, the Court had to determine, in such situations, whether the States concerned had used all means reasonably available to them to request and afford the cooperation needed for the effectiveness of the investigation and proceedings as a whole. (a)     Cyprus (i)     Whether Cyprus had used all the means reasonably available to it in order to seek the surrender/extradition of the suspects by Turkey – Following the identification of the possible suspects at the early stages of the investigation, the Cypriot authorities had submitted “Red Notice” requests to Interpol in order to locate the suspects and have them arrested with a view to their extradition. Those Red Notices had been published by Interpol. The Cypriot bureau of Interpol had also sent emails to the Turkish Ministry of Internal Affairs stating that it was searching for the suspects, and requesting that they be arrested if they entered Turkey. Cyprus had tried to negotiate the surrender of the suspects by the “TRNC” through UNFICYP from the early stages of the investigation. It was, however, very clear early on that neither the Turkish nor the “TRNC” authorities were intending to surrender the suspects. In those circumstances Cyprus could not be criticised for first trying to obtain the surrender through UNFICYP and, only when those efforts eventually proved unsuccessful, submitting the extradition requests to Turkey. The extradition requests had been delivered to Turkey through the Turkish embassy in Athens. Given the absence of diplomatic relations between Cyprus and Turkey, the delivery of the requests through the staff of their respective embassies in Athens could be accepted in the specific circumstances of the case as the only channel available to Cyprus. (ii)     Whether Cyprus had been under an obligation to supply all the evidence to the “TRNC” authorities or Turkey – The applicants’ case had to be distinguished from previous cases in which the Court had accepted the validity, for the purposes of the Convention, of legal remedies established or measures adopted by the “TRNC” authorities with regard to “TRNC” inhabitants or persons affected by their actions. In those cases the Court had recognised the validity of those remedies and acts to the extent necessary for Turkey to be able to secure all the Convention rights in northern Cyprus and to correct any wrongs imputable to it. In the applicants’ case, the question that had to be determined was whether Cyprus had been required to supply all the evidence from its investigation file to the “TRNC” authorities, who had been carrying out a parallel investigation into the murder pursuant to their domestic law. Cyprus had been ready to hand over all the evidence to UNFICYP so that the latter could see whether there had been a prima facie case against the suspects, subject to an undertaking by the “TRNC” authorities that they would surrender the suspects to Cyprus in that event. Since there had been no such undertaking by the “TRNC” authorities, Cyprus had refused to hand over any more evidence. Supplying the whole investigation file to the “TRNC” with the possibility that the evidence would be used for the purposes of trying the suspects there, and without any guarantee that they would be surrendered to the Cypriot authorities, would go beyond mere cooperation between police or prosecuting authorities. It would amount in substance to a transfer of the criminal case by Cyprus to the “TRNC” courts, and Cyprus would thereby be waiving its criminal jurisdiction over a murder committed in its controlled area in favour of the courts of an unrecognised entity set up within its territory. Indeed, the exercise of criminal jurisdiction was one of the main features of the sovereignty of a State. In such a specific situation, it had not been unreasonable to have refused to waive its criminal jurisdiction in favour of the “TRNC” courts. (iii)     Whether Cyprus had been under an obligation to engage in other forms of cooperation as suggested by UNFICYP – In the context of the mediation efforts carried out by UNFICYP, various forms of cooperation had been suggested in order to find a compromise solution between Cyprus and the “TRNC” authorities. However, those other forms of cooperation could not have, in themselves, facilitated the prosecution and trial of the suspects. It had not been established that those alternatives, in particular the possibility of arranging an ad hoc trial at a neutral venue, would have had a sufficiently solid basis in domestic or international law. In those circumstances, Cyprus had not been required under Article   2 to engage in them. Conclusion : no violation (fifteen votes to two). (b)     Turkey Turkey had ignored the extradition requests and had returned them without reply. The Turkish authorities would have been expected to indicate why they had considered that the extradition was not acceptable under their legislation or under the European Convention on Extradition . The Extradition Convention imposed an obligation on the requested State to inform the requesting State of its decision with regard to the extradition and in case of rejection to give reasons for such a decision. The obligation to cooperate under Article   2 had to be read in the light of those provisions and should therefore entail an obligation for a State to examine and provide a reasoned reply to any extradition request from another Contracting State regarding suspects wanted for murder or unlawful killings who were known to be present in its territory or within its jurisdiction. Turkey had not made the minimum effort required in the circumstances of the case and therefore had not complied with its obligation to cooperate with Cyprus for the purposes of an effective investigation into the murder of the applicants’ relatives. Conclusion : violation in respect of Turkey (unanimously). Art. 41: EUR 8,500 to each applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also Rantsev v. Cyprus and Russia , 25965/04, 7   January 2010, Information Note 126 ; Al-Skeini and Others v.   the United Kingdom [GC], 55721/07, 7   July 2011, Information Note 143 ; Markovic and Others v.   Italy [GC], 1398/03, 14   December 2006, Information Note 92 ; Janowiec and Others v.   Russia [GC], 55508/07 and 29520/09, 21   October 2013, Information Note 167 ; Cyprus v.   Turkey , 25781/94 , 10   May 2001; Mustafa Tunç and Fecire Tunç v.   Turkey [GC], 24014/05, 14   April 2015, Information Note 184 ; Demopoulos and Others v.   Turkey (dec.) [GC], 46113/99 et al., 1   March 2010, Information Note   128 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes