Information Note on the Court’s case-law 206

April 2017

Güzelyurtlu and Others v. Cyprus and Turkey - 36925/07

Judgment 4.4.2017 [Section III]

Article 2

Positive obligations

Article 2-1

Effective investigation

Failure of Turkish and Cypriot authorities to cooperate in murder investigation: violations

[This case was referred to the Grand Chamber on 18 September 2017]

Facts – The applicants were close relati ves 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 Tur kish (including 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 pen ding 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 invest igation 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 ( UNF ICYP ) proved fruitless due to the respondent States’ persistence in maintaining their positions.

In the Convention proceedings, the applicants complained of a violation of Article 2 by both the Cypriot and Turkish authorities on account of their failure to conduct an effective investigation into the deaths and to cooperate in the investigation.

Law – Article 2 ( procedural aspect ): As the applicants’ relatives’ deaths had taken place in the territory controlled by the Republic of Cyprus and under that State’ s jurisdiction, a procedural obligation arose in respect of Cyprus to investigate the deaths. Turkey’s procedural obligation was also engaged as the suspected killers were within Turkey’s jurisdiction, either in the “TRNC” or in mainland Turkey, and the Tu rkish and “TRNC” authorities had been informed of the crime and Red Notices concerning the suspects had been published. Indeed, the “TRNC” authorities had instituted their own criminal investigation and their courts had criminal jurisdiction over individua ls who had committed crimes anywhere on the island of Cyprus.

The applicants’ complaint under Article 2 was twofold concerning the conduct of the respective investigations by the Cypriot and Turkish authorities and the failure of the respondent Governments to cooperate with each other.

(a) Conduct of the investigat ions – Both respondent States had taken a significant number of investigative steps promptly. The Court perceived no shortcomings that might call into question the overall adequacy of the investigations in themselves. However, there was no need to make a findi ng under Article 2 on this matter in view of the Court’s findings regarding the question of cooperation between the two States.

(b) Procedural obligation to cooperate – In circumstances where, as in the instant case, the investigation of an unlawful killi ng unavoidably implicated more than one State, this entailed an obligation on the part of the respondent States concerned to cooperate effectively and take all reasonable steps necessary to this end in order to facilitate and realise an effective investiga tion into the case overall. Such a duty was in keeping with the effective protection of the right to life as afforded by Article 2 and was also consistent with the position taken by the relevant Council of Europe instruments which mandated inter-government al cooperation in order to prevent and combat transnational crimes more effectively and to punish the perpetrators.

The nature and scope of the cooperation required inevitably depended on the circumstances of the individual case. The Court had no competen ce to determine whether the respondent States had complied with their obligations under the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters and it was not for the Court to indicate which measures the authorities should have taken in order for the respondent States to comply wit h their obligations most effectively. The Court’s role was to verify that the measures actually taken were appropriate and sufficient in the circumstances and to determine to what extent a minimum effort was possible and should have been made.

It was clear from all the material before the Court, including the UN Secretary-General’s report of 27 May 2005 on the UN operation in Cyprus , that the respondent Governments were not prepar ed to make any compromise on their positions and find middle ground. That position arose from political considerations which reflected the long-standing and intense political dispute between the Republic of Cyprus and Turkey. Although the respondent States had had the opportunity to find a solution and come to an agreement under the brokerage of UNFICYP, they had not used that opportunity to the full. Any suggestions – such as meetings on neutral territory between the police authorities, the questioning of the suspects through “the video recording interview method” in the UN buffer zone, the possibility of an ad hoc arrangement or trial at a neutral venue, the exchange of evidence, and dealing with the issue on a technical services level – that had been made in an effort to find a compromise solution were met with downright refusal on the part of the authorities. While a number of bi-communal working groups and technical committees had been set up, none appeared to have taken up the case with the purpose of f urthering the investigation.

As a result of the respondent States’ failure to cooperate, their respective investigations had remained open and nothing had been done for more than eight years. The passage of time had inevitably eroded the amount and qualit y of evidence available and was liable to compromise the chances of the investigation being completed. It also prolonged the ordeal for the members of the family.

In the present, ultimately straightforward, case a considerable amount of evidence had been c ollected and eight suspects had quickly been identified, traced and arrested. The failure to cooperate directly or through UNFICYP had resulted in their release. If there had been cooperation, in line with the procedural obligation under Article 2, crimina l proceedings may have ensued against one or more of the suspects or the investigation may have come to a proper conclusion.

Conclusions : violation by Turkey (unanimously); violation by Cyprus (five votes to two).

Article 41: EUR 8,500 each in respect of non-pecuniary damage.

(See also Rantsev v. Cyprus and Russia , 25965/04, 7 January 2010, Information Note 126 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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