PARTLY DIS SENTING OPINION OF JUDGE PASTOR VILANOVA

( Translation )

The Court has found, by a substantial majority, that there has been a violation of Article 2 of the Convention under its procedural limb in respect of the Republic of Cyprus.

I regret that I am unable to agree with this decision for the following reasons.

1. Whilst the finding against the Republic of Turkey appears unquestionable to me in the present case, the responsibility of the Republic of Cyprus does not seem to have been engaged.

2. The Cypriot authorities did not wish to transmit the result of their criminal investigation to the “TRNC” because for them it was not a legitimate entity. According to the Chamber ’ s judgment, the finding against Cyprus is based precisely on Cyprus ’ lack of cooperation or assistance vis-à-vis the authorities of the “TRNC”. This means that the legal structure of the Republic of Cyprus would have to evolve so that it cooperates with an entity which does not enjoy international recognition, inter alia that of the Council of Europe, and which has violated its territorial integrity. In my humble opinion, this finding is at odds with the principle that the Convention must not be interpreted in a vacuum but in harmony with the general principles of international law (see Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001 ‑ II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). To be sure, it was not ascertained, in this territorial conflict between courts, whether or not the respective positions (see, inter alia , paragraph 55 of the observations of the Republic of Cyprus of 3 September 2009) were compatible with the rule of law and the principle of good faith. Instead, a general obligation to cooperate has been imposed.

3. A State may be recognised by another State either expressly or implicitly. In any event, this is a discretionary act. If the Republic of Cyprus takes the view that a police or judicial assistance arrangement with the “TRNC” would constitute an implicit recognition of that entity ’ s sovereignty, this is a political decision and one that is not for us to judge. States have a very broad margin of appreciation in such matters and it must be noted that the refusal by the Republic of Cyprus was in no way arbitrary. There are indeed numerous principles of contemporary international law which justify the position of the Republic of Cyprus: Turkey used force to invade the northern part of the island, thus breaching the territorial integrity of a sovereign State and disregarding the principle of non-interference of States in the internal affairs of others.

In those circumstances I am of the view that our Court cannot support or recognise, even indirectly, the actions of the “TRNC” which stem from an unlawful use of force, in breach of the most basic principles of public international law. By definition, it is the duty of our Court to defend the “force of law” and condemn any recourse to the “law of force”. Any subsequent willingness to compensate the victims can never allow the principle of legality to be circumvented, even if this is unintentional.

4. In addition, it is not in dispute that the Republic of Cyprus thoroughly investigated the murders and formally requested the Republic of Turkey to extradite the suspects. It fulfilled its procedural obligations under Article 2. It must not be forgotten that we are speaking here of an obligation of means, not one of result.

5. Moreover, the conflict arose because the authorities of the “TRNC” reserve the right to prosecute offences committed in the neighbouring territory of the Republic of Cyprus. This authority arises from the legislation on courts of law which extends the territorial jurisdiction of the “TRNC” to offences committed anywhere on the island, even in the independent territory of the Republic of Cyprus (see paragraph 162). In the following paragraphs I will show that the Chamber ’ s finding against the Republic of Cyprus legitimises, de facto, this provision. I would point out that the European Convention on Human Rights, in many of its provisions, lays emphasis on the rule of law and the Court ’ s case-law stresses the need for harmony between the interpretation of the Convention and public international law.

6. According to customary international rules on the extraterritorial application of domestic law, a State may extend its statutory jurisdiction beyond its borders provided that this extension is at least attached to one of the indissociable elements of State sovereignty. Territory, population and “sovereignty” are common points of attachment.

First, it is self-evident that the State exercises its authority over local situations within its borders, especially in matters of homicide and bodily harm. Indeed, it is on its own territory that the evidence of the crime will generally be found.

Secondly, the State has an inherent power to legislate in respect of its own nationals, regardless of their place of temporary or permanent residence.

Lastly, the State may also legitimately reserve the right to try extraterritorial offences when they endanger its national security, its very existence, or its services abroad ...

Any extraterritorial application of legislation which is not reasonably and in good faith related to one of those situations will be at odds with international law. Consequently, it will have no legal value and will engage the international responsibility of the State from which the invalid provision stems.

7. The “TRNC” sought to prosecute the individuals suspected of murdering the applicants ’ relatives under an extraterritorial law, which was apparently unlimited in scope (see paragraph 162). But it is not in dispute that: (a) the murder was committed on the territory of Cyprus (see paragraph 10); (b) the victims all had Cypriot nationality (see paragraph 6); (c) the majority of the suspects had Cypriot nationality (see paragraphs 27 and 37); and (d) there was nothing to suggest that the murders had been directed against a superior State interest of the “TRNC”. I would observe that the “TRNC” could not rely on any significantly reasonable link between the criminal acts in question and its domestic “jurisdiction”. Similarly, the unreasonable exercise of an extraterritorial power is also incompatible with international law.

8. Consequently, I am of the view that the authorities of the Republic of Cyprus were indeed reasonably entitled to argue that they had full jurisdiction – the rules on jurisdiction not being subject to derogation – to try the murders committed on its territory. In turn, the authorities of the “TRNC”, in the absence of any bilateral agreement with the Republic of Cyprus, committed an abuse of power by: (a) requiring that State to transmit the results of the investigation and (b) refusing to hand over the suspects. It is worth mentioning that the authorities of the “TRNC” ultimately found out about the criminal case in question through the proceedings before our Court. However, no progress was made in the investigation (see paragraphs 102 and 278) ... The old maxim “ aut dedere, aut judicare ” also seems to have been disregarded.

9. It should be added that the situation here does not represent a legal vacuum. Turkey had the possibility of handing over the suspects to Cyprus under the European Convention on Extradition. The individuals concerned could have been tried in the Republic of Cyprus. However, Turkey did not even respond to an official request for extradition. It must now, on its own, assume the consequences of its culpable omission.

10. Lastly, I would like to emphasise that this case must be distinguished from that of Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 ‑ IV), where the Court gave its “approval” to the courts of the “TRNC”, albeit to a very limited degree . In that connection the Court pointed out that the inhabitants of the northern part of the island (see paragraph 98 of that judgment) had an interest in the settlement of domestic disputes. The present case has two major differences: (a) the events took place exclusively in the Cypriot part of the island, while in Cyprus v. Turkey the violations of the Convention took place on the territory controlled by the “TRNC”, and (b) the present conflict arose on account of the lack of mutual legal assistance between the authorities of the Republic of Cyprus and those of the “TRNC”, whereas that institutional dimension was absent from Cyprus v. Turkey .

[1] See Jerzy Stelmach and Bartosz Brozek , Methods of Legal Reasoning , Springer: Dordrecht, 2006 (Law and Philosophy Library), vol. 78, p. 162.

[2] In Anne van Aaken and Iulia Motoc ( eds ), The ECHR and General International Law , Oxford University Press (f orthcoming ). See https://ssrn.com/abstract=2825208 .

[3] See Daniel Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis ”, Nordic Journal of International Law, vol. 79, no. 2 (2010), p. 271.

[4] S ee Hersch Lauterpacht, “Restrictive Interpretation and Effectiveness in the Interpretation of Treaties” in BYIL (1945), p. 48 at 50-51, 69; and Alexander Orakhelashvili , The Interpretation of Acts and Rules in Public International Law, Oxford 2008, reprinted 2013, at p. 414 .