PARTLY DISSENTING OPINION OF JUDGES KARAKAÅž AND PEJCHAL

1. With all due respect to our colleagues, we disagree with the view of the majority that there has been no violation by Cyprus of Article 2 of the Convention under its procedural limb. For the reasons that will be explained briefly below, we consider that Cyprus has also failed in its duty to cooperate with Turkey and the “TRNC” authorities and that therefore there has been a violation by Cyprus of Article 2 of the Convention under its procedural limb.

2. We note that the Grand Chamber has endorsed the findings concerning the overall adequacy of the parallel investigations conducted by the authorities of each respondent State. It accordingly considered that the crux of the problem in the present case is the existence and scope of a duty to cooperate as a component of the procedural obligation under Article 2 (see paragraph 221).

3. In this connection, we fully subscribe to the general principles laid down in paragraphs 229-38 of the judgment, which has clarified the extent of the procedural obligation under Article 2 of the Convention in a cross ‑ border context. In particular, the Grand Chamber has held that in certain circumstances (see paragraph 233):

“Article 2 may require from both States a two-way obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there.”.

4. The Grand Chamber has found that both States had an obligation to cooperate with each other which derived from their respective procedural obligations under Article 2 to investigate the deaths of the applicants’ relatives.

5. As to the nature and scope of these obligations in the present case, the Grand Chamber has found as follows (see paragraph 237):

“... a special feature in this case is that the alleged lack of cooperation involved a de facto entity set up within Cyprus’s internationally recognised territory but which is under the effective control of Turkey for the purposes of the Convention (see Cyprus v. Turkey , cited above, §§ 61 and 77). As the two respondent States have no formal diplomatic relations, the international treaties to which both States were parties (Council of Europe treaties, see relevant international law) cannot be the sole framework of reference in determining whether both States used all the possibilities available to them to cooperate with each other. In the absence of formal diplomatic relations, formalised means of cooperation are more likely to fail and States may be required to use other more informal or indirect channels of cooperation, for instance through third States or international organisations.”

6. However, when it came to the application of the general principles with regard to Cyprus, the majority, in our view, failed to properly assess that State’s compliance with its procedural obligation, taking into account the very special circumstances of the present case.

7. The Grand Chamber examined Cyprus’ obligation to cooperate under three separate headings. Firstly, it examined the question whether Cyprus had used all the means reasonably available to it in order to seek the surrender/extradition of the suspects by Turkey and found that it had (see paragraphs 241-45). Secondly, it inquired whether Cyprus was under an obligation to supply all the evidence to the “TRNC” authorities or Turkey and ultimately held that it did not have to (see paragraphs 246-55). Finally, the Grand Chamber considered that Cyprus was also not under an obligation to engage in other forms of cooperation as suggested by UNFICYP (see paragraph 256).

8. We disagree with these conclusions, save for the conclusion reached as regards the first question, since the material before the Grand Chamber demonstrates clearly that, despite the ample evidence collected and suspects identified and arrested in connection with this horrible crime, the investigations both in Cyprus and in “TRNC” have reached a stalemate because both Cyprus and Turkey were not prepared to make any compromise on their positions and find middle ground owing to the long-standing and intense political dispute between them.

9. In particular, it is not in debate that Turkey, through the “TRNC” authorities and within the framework of UNFICYP mediation, requested evidence from Cyprus for the purposes of the continued detention of the suspects and of its own investigation in the “TRNC” (see paragraphs 110, 115, 122, 123 and 126). The reasons put forward by Cyprus to justify its refusal to supply all the evidence to Turkey or to the “TRNC” authorities was either that provision of evidence to the “TRNC” would have resulted in the suspects’ unlawful detention and trial by unlawful courts within the meaning of the Convention (see paragraph 247) or that such cooperation would have breached the customary international law principle of non ‑ recognition (see paragraph 250).

10. In order to lend support to these arguments, the majority attempt in paragraph 250 to distinguish the situation in the present case from the well ‑ established case-law of the Court cited in paragraphs 248 and 249 (see, in particular, Cyprus v. Turkey , cited above, §§ 61 and 238; Demopoulos and Others, cited above, §§ 95-96; and Foka, cited above, §§ 83-84), where the Court has 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 (see paragraph 250). Rather, it takes the following view:

“... in the present case, the question that arises is whether the Republic of Cyprus as the legitimate government of Cyprus, with no control over the northern part of the island, which is under the effective control of Turkey, can cooperate with the de facto authorities set up within that territory (the ‘TRNC’) without implicitly lending legitimacy or legality to them or to the occupation. In the Court’s view, this situation is also different from that in which a Contracting State other than Cyprus cooperates with those authorities (see, for instance, the cooperation between the United Kingdom police and the ‘TRNC’ authorities referred to in paragraph 214 above).”

11. There is simply no support under international law (and the Court is therefore unable to back this claim with reference to international law), nor does it stem from the practice of other States, that such a cooperation would have been taken as recognition, implied or otherwise, of the “TRNC”. The United Kingdom, for example, has cooperated in criminal cases with the “TRNC” (see Attorney General v. Ozgay Yorgun TRNC Nicosia Assize Court , case no. 5719/99, Supreme Court appeal no. 67/99, in which the United Kingdom authorities had provided witnesses and evidence for the prosecution of the suspects, as referred to in the Chamber judgment, § 244) without affording it any recognition. In that sense the High Court of England and Wales had rejected the argument that police-to-police cooperation with “Northern Cypriot” authorities amounted to implied recognition (see R. (in the application of Akarcay) v. Chief Constable of West Yorkshire , [2017] EWHC 159). The majority’s approach is simply to tell Cyprus that it is not bound by the procedural obligation to cooperate under Article 2 when it comes to cooperation with the “TRNC”.

12. Finally, the majority, while acknowledging that in the present case, given the absence of formal diplomatic relations, formalised means of cooperation were more likely to fail and that States may be required to use other more informal or indirect channels of cooperation, for instance through third States or international organisations, refuses to take into account the validity or even the possibility of many suggestions put forward by the UNFICYP in order to facilitate the cooperation between Cyprus and the “TRNC”. Only the suggestion of an ad hoc trial at a neutral venue is dismissed by the majority as having an insufficient basis in domestic or international law. However, no reason is given in the judgment as to why other suggestions cited therein would not have elucidated further the facts and help establish those responsible for the murder of the applicants’ relatives.

13. In respect of both of these points, we subscribe to the findings of the Chamber judgment which read as follows:

“291. On the Cypriot Government’s side it is evident that what drove the unwillingness to cooperate was the refusal to lend (or the fear of lending) any legitimacy to the ‘TRNC’. However, the Court does not accept that steps taken with the aim of cooperation in order to further the investigation in this case would amount to recognition, implied or otherwise of the ‘TRNC’ (see Cyprus v. Turkey , cited above, §§ 61 and 238). Nor would it be tantamount to holding that Turkey wields internationally recognised sovereignty over northern Cyprus (see, mutatis mutandis , Demopoulos , cited above, §§ 95-96, and Foka v. Turkey , no. 28940/95, §§ 83-84, 24 June 2008). The United Kingdom, for example, has cooperated in criminal cases with the ‘TRNC’ without affording it any recognition.

…

293. Although the respondent States had the opportunity to find a solution and come to an agreement under the brokerage of UNFICYP, they did not use that opportunity to the full. Any suggestions made in an effort to find a compromise solution or that the authorities concerned meet each other half way were met with downright refusal on the part of those authorities. The options put forward have included meetings on neutral territory between the Cypriot and ‘TRNC’ police, UNFICYP and the Sovereign Base Areas police, the questioning of the suspects through ‘the video recording interview method’ at the Ledra Palace Hotel in the UN buffer zone, the possibility of an ad hoc arrangement or trial at a neutral venue, the exchange of evidence (under certain conditions), and dealing with the issue on a technical services level. While a number of bi-communal working groups and technical committees have been set up – including one on criminal matters – it appears that none of these committees has taken up the present case with the purpose of furthering the investigation.”

14. In view of the above, we are of the opinion that there has been a violation of Article 2 of the Convention under its procedural aspect by virtue of the failure of the Cypriot authorities to cooperate.

[1] “Community” means the Greek or the Turkish Community (Article 186 of the 1960 Constitution).

[2] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 , p. 16.

[3] . See on this principle, inter alia , 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 , 79 (2010), 245 et seq ; Georgios A. Serghides, “The Principle of Effectiveness as Used in Interpreting, Applying and Implementing the European Convention on Human Rights (its Nature, Mechanism and Significance), in Iulia Motoc, Paulo Pinto de Albuquerque and Krzysztof Wojtyczek, New Developments in Constitutional Law – Essays in Honour of András Sajó, The Hague, 2018, pp. 389 et seq .

[4] . In Golder v. the United Kingdom, no. 4451/70, § 29, 21 February 1975 (Plenary), the Court held that “Articles 31 to 33 enunciate in essence generally accepted principles of international law”. On the point that these provisions have the status of rules of customary or general international law, see also Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 118, 8 November 2016, and Saadi v. the United Kingdom [GC], no. 13229/03, § 61, 29 January 2008. Professor John Merrills remarked that, “[t]hough its decisions have been very much influenced by certain characteristics of the European Convention, the Court’s approach to interpretation has its basis in the Vienna Convention” (see John G. Merrills, The Development of International Law by the European Court of Human Rights, Manchester, 1993, at p. 69). François Ost also argues that Articles 31 to 33 of the VCLT “seem to be a constant source of inspiration” for the Court (see François Ost, “The Original Canons of Interpretation of the European Court of Human Rights”, in Mireille Delmas-Marty (ed.), The European Convention for the Protection of Human Rights: International Protection versus National Restrictions, Dordrecht/Boston/London, 1992, 283, at p. 288).

[5] . See Yearbook of the International Law Commission 1964, II, p. 60, § 26, and p. 61, § 29.

[6] . See, inter alia , Golder , cited above, § 35, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 55-56, 21 November 2001, where the Court referred to this provision. See also Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, §§ 40-43, ECHR 2014, where the Court applied the rules of international law on reparation in interpreting Article 41 of the Convention dealing with just satisfaction.

[7] . For these elements of the principle of good faith, see, inter alia , J. F. O’Connor, Good Faith in International Law , Aldershot, 1991, at pp. 42, 110, 124; and Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden-Boston, 2009, at pp. 425-26.

[8] . See Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law , Oxford, 2008, repr. 2013, at p. 398, also acknowledging that the principle of good faith “indeed relates both to the fulfilment of treaty obligations and interpretation of treaty provisions” (ibid.).

[9] . See Yearbook of the International Law Commission 1964, II, p. 201, § 8, and 1966, II, p. 219, § 6.

[10] . See Richard K. Gardiner, Treaty Interpretation, Oxford, 2015, at p. 179.

[11] . See Robert Kolb, “Principles as Sources of International Law (With Special Reference to Good Faith)”, in Netherlands International Law Review [NILR], 2006, vol. LIII 2006/I, 1 at p. 15.

[12] . Markus Kotzur rightly argues that Article 18 of the VCLT “gives proof that good faith shall not only apply during the performance and enforcement of a treaty but also at an earlier stage of its formation, the pre-ratification period” (see Markus Kotzur, “Good Faith ( Bona Fide )” in Max Planck Encyclopedia of Public International Law :

http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1412 , at p. 7 (§ 21)).

[13] . Article 26 of the VCLT, dealing with the implementation of treaties, uses again the concept of good faith, but in a different context from that in which it is used in Article 31 § 1. Article 26, by providing that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”, uses good faith not as a manner of interpretation but as a manner of performance of a treaty.

[14] . Also, in paragraph 232 of the judgment, the Convention’s special character as a collective enforcement treaty, which entails in principle an obligation on the part of the States concerned to cooperate effectively with each other, is rightly emphasised.

[15] . See UNSC Resolutions 353 (1974) of 20 July 1974 and 360 (1974) of 16 August 1974.

[16] . See Resolutions 33/15 of 9 November 1978, 34/30 of 20 November 1979 and 37/253 of 16 May 1983. See also UNGA Resolution 3212 (XXIX) of 1 November 1974 which provides, inter alia :

“The General Assembly

1. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus and to refrain from all acts and interventions directed against it;

2. Urges the speedy withdrawal of all foreign armed forces and foreign military presence and personnel from the Republic of Cyprus and the cessation of all foreign interference in its affairs”.

This Resolution was later endorsed by the Security Council in UNSC Resolution 365 (1974) of 13 December 1974.

[17] . See Hugh Thirlway, “The Law and Procedure of the International Court of Justice 19601989” , part III, 62, BYBIL (1991), 1 at pp. 17-18 .

[18] . Ibid.

[19] . Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Cambridge, vol. II, 1986, at pp. 610-11.

[20] . Ibid. at p. 611. He then asks the question “[i]s this subjective element an essential ingredient of the concept of bad faith?” (ibid.). In answering this question he says that “[p]ossibly, in the case of bad faith considered purely in and of itself, it is such an ingredient. But this would not seem necessarily to apply to an abuse of rights – and it is largely through abuses of rights that actions that may give the impression of being in (deliberate) bad faith are carried out” (ibid.). After further discussing the issue, Sir Gerald Fitzmaurice concludes that “[a] State which, though not with the actual object of breaking an international obligation as such, uses its right to apply certain laws, or to apply them in a certain way, in such a manner that the obligation is not in fact carried out, may be said to have committed an abuse of rights” (ibid.). This is in line with what has been said in paragraph 12 above, namely that “international law does not attach great weight to the state of mind of sovereign states”.

[21] . See Golder , cited above, § 30.

[22] . See notes 13 and 14 above.

[23] . See Roslyn Moloney, “Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent”, in [2004] Melbourne Journal of International Law, vol. 5, 155, at pp. 156-57.

[24] . See a commentary on this expansionist policy of Turkey in §§ 34, 47 (n), 74 and 87 of my partly dissenting opinion appended to the Chamber judgment in the present case.

[25] . See a similar argument in Richard K. Gardiner, Treaty Interpretation , 2 nd edn., Oxford, 2015, at p.176: “Clearly, it would be contrary to good faith to interpret the grant of powers as permitting their use to deny rights under the treaty.”

[26] . Even “[a]n attempt at ineffective interpretation of a treaty can in some circumstances be equal to breach of the treaty, thus triggering the remedies available to the contracting parties under Article 60 of the Vienna Convention on the Law of Treaties” (see Alexander Orakhelashvili, op. cit., at p. 393).