15 May 2009

FIRST SECTION

Application no. 36925/07 by Mehmet GUZELYURTLU and Others against Cyprus and Turkey lodged on 16 August 2007

STATEMENT OF FACTS

THE FACTS

The app licants, Mr Mehmet Güzelyurtlu, Ms Ayça Güzelyurtlu, Ms Deniz Erdinch, Mrs Emine Akerson, Ms Fezile Kirralar, Mrs Meryem Özfirat and Mr Muzaffer Özfirat , are all Cypriot nationals of Turkish-Cypriot origin who were born in 1978 , 1976, 1980, 1952, 1956 and 1933 respectively. The first, fifth, sixth and seventh applicants live in Lefkoşa, in the “ Turkish Republic of Northern Cyprus ” (“TRNC”). The remaining applicants live in the United Kingdom : the second and fourth applicants live in Enfield and the third applicant in London .

The applicants are represented before the Court by Mr A. Riza Q.C. and Mrs E. Meleagrou, a solicitor practising in London .

The facts of the case, as submitted by the applicants, may be summarised as follows.

A . Background facts

The applicants are the family of Elmas and Zerrin Güzelyurtlu and their daughter Eylül, all deceased. The first, second and third applicants are the children of Elmas and Zerrin and the brother and sisters, respectively, of Eylül. The fourth and fifth applicants are Zerrin ’ s sisters and the sixth and seventh applicants are her parents.

Elmas Güzelyurtlu was a businessman and lived with his wife and daughter in the “TRNC”. In 2003, following the collapse of the bank Elmas owned, they all fled to Southern Cyprus and remained there . They lived in the dist rict of Ayios Dhometios in Nicosia .

On 15 January 2005 the police found Elmas, Zerrin and Eylül dead on the Nicosia-Larnaca highway. Eylül was fifteen years old at the time.

B. Official investigations

1. The investigation conducted by the Cypriot Government

(a) Police report of 17 February 2006

By a letter dated 2 February 2006 the applicants submitted an official request to the Cypriot police for the report concerning the investigation of the killing of their relatives.

The report of the Cypriot police dated 17 February 2006 provides as follows:

On 15 January 2005, at about 8.00 a.m., on the Nicosia-Larnaca highway, near the Athiainou exit, the police spotted a black Lexus car parked on the left security lane. The engine was running and the door of the front seat passenger was open.

Zerrin and Eylül were found dead on the back seat of the car. Elmas was lying dead at a distance of 1.50 metres from the car, in the nearby ditch. All three were in pyjamas and slippers.

On the same day an on the spot investigation was carried out by the police and a forensic doctor. All the victims had a perforating head injury caused by a firearm. Zerrin had adhesive tape on her neck and two rolls of adhesive tape in her hands. Both Zerrin and her daughter Eylül had redness on the edges of their hands and bruises on their shins caused by a struggle. Two bullet s , two cartridge cases and a kitchen knife were found inside the car. A third cartridge case was found outside the car.

From the evidence collected it appeared that on 15 January 2005, between 5.14 and 5.20 am, three shots were heard from the area in which the car and the victims were found. From the post-mortem examination it was determined that all three victims had died of severe craniocelebral injury caused by a shot from a firearm at close range.

The investigation carried out at the victims ’ home indicated that the perpetrators had broken into the house. In the house and, mainly in the victims ’ bedrooms, pieces of adhesive tape were found. The security system had been switched off at 4.35 a.m.

Numerous exhibits were collected from the scene of the crime and the victims ’ home. These were sent for forensic examinations.

According to the witness statements taken by the police, at the time the offence was committed, there were two cars with a total of six passengers parked near the victims ’ car. One of these persons was under the car. A third car, a BMW, was also seen with four persons who were standing around the victims ’ car.

On 14 January 2005, at 11.00 p.m., a BMW car with “TRNC” car plates had come through the Pergamos crossing point to the sovereign base of Dhekelia. At 5.45 a.m., the next day, the same car returned to the “TRNC” from the same point. The driver of the car, who resided in the “TRNC”, was accompanied by another person.

The DNA of three Turkish–Cypriots living in the “TRNC” was found in the exhibits collected by the police. According to evidence collected, on 6 January 2005, two of the above persons had visited the shop of the victim ’ s son (first applicant). One of these persons had threatened the first applicant due to differences with his family.

Judicial arrest warrants were issued by a Cypriot Court against eight persons living in the “TRNC”. At the same time European Arrest Warrants and a Red Notice were issued for an international search in order to effect the arrest of the perpetrators and their handing over to the Cypriot authorities.

(b) The first applicant ’ s statements

In a summary of the first applicant ’ s statements to his lawyers between 2006 and 2007, the first applicant stated, inter alia , the following:

In the morning of 15 January 2005 the Cypriot police informed the first applicant about the death of his parents and sister. He went to Larnaca morgue to identify the victims. He then signed a form authorising the police officers to enter into the family home in Ayios Dhometios and conduct an investigation. The first applicant was present for part of the investigation and then went with the police to his father ’ s office in Nicosia where the police took documents as part of the investigation.

The next day the first applicant went to Larnaca morgue and then Larnaca police station where he spent nine hours giving a statement. In his statement he informed the police of the persons he suspected of the perpetrating the murder.

On 17 January 2005 the first applicant took the victims ’ bodies back to the “TRNC” where a funeral was held.

On 19 January 2005 the first, second and fourth applicants went to Nicosia police headquarters where they were shown pictures and sketches of a number of people for identification purposes. They were then informed that the Cypriot police had DNA matches for at least three of the suspects.

Subsequently, in March 2007 the Cypriot police informed the fi rst applicant that the car and the material that had been removed from the victims ’ home and office could be returned to the applicants. They also informed the first applicant that the investigation remained open and that the evidence had been shown to the United Nations (“UN”) but the “TRNC” authorities refused to cooperate. The authorities did not accept to give the first applicant copies of the requests made through Interpol.

In July 2007 the applicants were informed by the Cypriot police that the arrest warrant for one of the suspects had been cancelled.

(c) Other relevant documents

In a letter dated 26 July 2006 the Attorney-General of the Republic of Cyprus assured the applicants ’ representatives that the Republic was “doing everything within its power, considering that it did not have effective control over the areas of the Republic occupied by Turkey, in which persons that may be involved were presently, and taking into account the relevant Convention case-law to investigate the ... murder and bring the persons responsible to trial before the Courts of the Republic”.

(d) Additional submissions by the applicants

On 1 February 2006, at a meeting at Nicosia Police Headquarters, the applicants ’ lawyers were informed, that one of the suspects had been briefly detained in Turkey . The Cypriot police had received this information from the office of Interpol in Athens .

Furthermore, the applicants claimed that the Cypriot authorities had informed them that they had requested Turkey to extradite the suspects . Although the applicants had requested the Cypriot Government for formal confirmation of this in writing, no such confirmation was ever received.

2. The investigation conducted by the Turkish Government (including the “TRNC” authorities)

On 18 January 2005 the first applicant met with the “TRNC” police. He informed them of the persons who he suspected had committed the murder.

Eight suspects were detained but subsequently released for lack of evidence.

According to the first applicant (in his statements to his lawyers between 2006 and 2007) by the end of January 2005, following, the release of the suspects, it was evident that the “TRNC” authorities did not want to deal with the case. They had not opened a file on the murder and the suspects had been arrested in connection to allegations about a stolen car. The “TRNC” authorities also claimed that the Cypriot authorities were refusing to hand over evidence.

C . Involvement of the United Nations

1. Relevant correspondence with UNFICYP

Between 2006 and 2007, an exchange of correspondence concerning the investigation of the murder took place between the applicants ’ representatives and the United Nations Peacekeeping Force in Cyprus (UNFICYP).

The text of three of the communications by UNFICYP in reply to the applicants ’ representatives ’ queries is set out below.

In a letter to the applicants ’ representatives dated 23 February 2006 Commissioner Carla Van Maris, Senior Police Adviser and Commander at UNFICYP headquarters in Nicosia , stated, inter alia , the following:

“1. The Senior Police Advisor (SPA) of the UN police in Cyprus first became involved in the case on 16 January 2005 at the request of the Assistant Chief of Police of the Republic of Cyprus ,..., who at that time briefed the Senior Police Adviser on the case. A request was made to the SPA to facilitate the exchange of information between the sides.

2. At no time was the SPA asked to operationally assist in the investigation of the murder or apprehend the suspects. If asked this would not have been agreed to ....

4. A copy of the preliminary investigation report prepared by the police authorities was sent to the Turkish Cypriot authorities with the SPA ’ s facilitation. UNFICYP limited itself to a mediation role and therefore neither verified the contents nor kept a copy of the report. At what point the trial venue became an issue cannot be ascertained as this was not within the control or knowledge of the SPA. UNIFICYP attempts to facilitate the exchange of information on criminal enquiries when asked to do so by one side or the other.

...”.

In an e-mail sent by Commander Colin Speedie, Deputy Senior Police Advisor of the UNFICYP police to the applicants ’ representatives on 25 October 2006, the following, inter alia , was stated:

“I note your request and assure you of the UN ’ s utmost cooperation in dealing with any matter of a criminal nature, particularly though in this most serious case,. While UNFICYP has been exhausting its efforts to reach some conclusion to this case, it is unfortunate that there is a stalemate at this present time due to the two sides not agreeing on a way forward.

...

1. The Republic of Cyprus will not hand over any evidence for the purposes of conducting a trial in the north. This is despite the fact that other jurisdictions ( United Kingdom ) have in the past successfully caused a trial to be conducted in the north, of a serious crime committed in the UK .

2. The legal processes conducted in the north do not allow for the handing over of any Turkish-Cypriot suspects to any authorities in the south or any other country in any other circumstances.

Therefore UNFICYP stands ready to facilitate whatever it can in this case, I can see no resolution being promoted until such time as one side or the other cedes their current position. Either the RoC [1] is willing to hand over all the evidence to the north and offer full police and evidentiary cooperation so that a trial can be conducted in that “jurisdiction”, or the north is willing to hand over suspects based on sufficient evidence to cause the swearing of an arrest warrant in the north, with a view to handling the suspects to UNFICYP for passing on the RoC”.

In an e-mail sent by the above Commander to the applicants ’ representatives on 16 November 2006 the following was stated:

“UNFICYP is not in a position to formally engage a suitably qualified expert to officially adjudicate on the evidence held by the Republic of Cyprus . It has already been stated that while the UNFICYP believes that there is enough evidence on face value for the two sides to reach a suitable position, it welcomes the delivery of any further or all evidence, copies or otherwise, from the Republic of Cyprus that can be used to further meaningful dialogue between the two sides, I again reiterate the following options that may in my view facilitate further useful negotiations:

The RoC, without prejudice deliver to the UNFICYP all necessary evidence allowing this to be used as UNFICYP sees fit, with a view to negotiating the alleged offenders arrest and hand over to UNFICYP for delivery to the authorities in the south for the purposes of a trial. However, without a clear guarantee that the north will arrest and hand-over the alleged offenders there is little chance of this being successful.

The only other solution is for the RoC to hand over all the evidence to UNFICYP for delivery to the relevant persons in the north with a view to having a trial conducted in the north. This option has already been rejected by the RoC.”

2. Other relevant documents

The UN Secretary General, in his report of 27 May 2005, on the UN operation in Cyprus stated the following:

“23. Official contact between the sides is hampered by a high degree of mistrust. On 15 January 2005, three members of a Turkish Cypriot family living in the south were killed on the Larnaca highway in the south. Eight suspects were arrested in the north while all the evidence remained in the south. UNFICYP ’ s efforts to assist the sides to bring the suspects to justice proved unsuccessful, and all suspects were released in the north. This case is an illustration of the growing number of crimes across the cease-fire line, such as smuggling, drug trafficking, illegal immigration and human trafficking. These problems are implicit in the expanding inter-communal contacts, which though positive, have also the potential for adverse consequences if the present lack of cooperation between the sides persists.”

D. Additional submissions and documents provided by the applicants

The applicants submitted a number of documents before the Court, including, copies of press releases concerning the murder of their relatives and the investigation of their case and copies of letters sent to the Cypriot and Turkish (including “TRNC”) authorities.

They submitted that they had had several meetings with , inter alia , the authorities and the police but all to no avail. In their application they give details of these meetings.

The first applicant further submitted that o n 15 July 2007 there was an attempt to kill him.

COMPLAINTS

1. The applicants complain under Article 2 of the Convention that the Cypriot and Turkish (including the “TRNC”) authorities have failed to conduct an effective investigation into the killing of their relatives, Elmas, Zerrin and Eylül Güzelyurtlu. They point to the failure of the respondents States to cooperate in the investigation of the killing of their relatives and the arrest of the suspects.

In particular, the applicants complain of the following:

(a) In so far as the Republic of Cyprus is concerned the applicants complain about:

-the authorities ’ refusal to provide the applicants and the Turkish (including the “TRNC”) authorities with the evidence they have in their possession (including DNA and fingerprint identification evidence);

-the authorities ’ failure to provide the applicants with documentary evidence concerning their request to Turkey for the extradition of the suspects under the European Convention on Extradition;

-the authorities ’ refusal to co-operate with the “TRNC” authorities and their failure to co-operate adequately with UNFICYP;

-the authorities ’ failure to make any general or specific ad hoc arrangements with the “TRNC” authorities for the investigation of the murder and the arrest of the suspects;

-the protracted length of the investigation and the failure of the authorities to keep the applicants reasonably and promptly informed about the progress of the investigation;

(b) In so far as Turkey is concerned the applicants complain about:

-the authorities ’ refusal to investigate and or prosecute, or in the alternative, extradite the suspects;

-the authorities ’ refusal and failure to deal, directly or indirectly, with the authorities of the Republic of Cyprus . In this connection the applicants submit that the authorities did not request any information from the authorities of the Republic of Cyprus and did not reply to the applicants ’ requests.

-the authorities ’ refusal to cooperate with the authorities of the Republic of Cyprus which has resulted in providing the perpetrators of the crime with a safe haven.

2. Furthermore, the applicants claim that where there is a systemic failure to investigate certain killings in cases where the perpetrators, such as in the present case, escape by crossing a dividing line, then the substantive requirement of Article 2 is violated as the laws in place do not protect the right to life.

3. In connection with the above the applicants complain about the failure of the respondent States to comply with their obligations under the European Convention on Mutual Assistance in Criminal Matters and the European Convention on Extradition.

4. Finally, the applicants complain under Article 13 of the Convention that they had no effective remedy at their dispo sal in respect of their Article 2 procedural complaint . In this respect, they submit that the prevailing political problems render any existing judicial domestic mechanisms ineffective and prevent any fruitful investigation from taking place. They further claim that the unwillingness of the respondent States to undertake all reasonable steps to bring the suspects to trial falls short of the standard required by Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities of the respondent States in breach of Article 2 of the Convention? In this respect, does Article 2, and if so, to what extent, impose an obligation on respondent States to cooperate with investigation s held outside their jurisdiction or area of control (see O ’ Loughlin and Others v. the United Kingdom (dec.) , no. 23274/04, 25 August 2005)?

In their replies to the above question the respondents Governments are requested to address, amongst other things, the following issues:

-the exact nature of the investigation carried out and all steps taken by their respective authorities;

-the nature and extent of the authorities ’ co-operation with UNFICYP;

-the current status of the investigation;

-the jurisdiction in criminal law.

2. Do the applicants have at their disposal an effective domestic remedy for their Convention complaint under Article 2 of the Convention, as required by Article 13 of the Convention?

Finally, t he respondent Governments are requested to submit all relevant documentary evidence in support of thei r replies to the above question and a copy of the investigation files.

[1] The Republic of Cyprus