Cyprus and Turkey battled it out inside the Grand Chamber of the European Court of Human Rights (ECHR) on Wednesday, each blaming each other for the fact that the suspected killers of a Turkish Cypriot family in 2005 in the Republic, had fled north and never been brought to justice.
Last April, the ECHR ruled that both Cyprus and Turkey had violated the European Convention on Human Rights because they failed to co-operate in the investigation. The suspected killers of Elmas, Zerrin and Eylul Guzelyurtlu, who were shot dead on the Nicosia-Larnaca highway were criminals from the Turkish Cypriot underworld.
Wednesday’s hearing took place after the ECHR Grand Chamber panel accepted the requests of the governments of Cyprus and Turkey that the case be referred to the 17-member chamber.
UK-based queen’s counsel Alper Ali Riza who represented the relatives of the slain family, in his address to the court argued that the case was simple; police on both sides of the island could easily have cooperated without it meaning recognition of the breakaway Turkish Cypriot state in the north. He reminded the court that this was a human rights case in which a child was murdered and the suspects could not be arrested because police on both sides did not talk to each other.
He said the Cyprus chief of police “was not prepared to talk to them [Turkish Cypriots], let alone cooperate with them”.
“There was not only a failure to cooperate but a failure to contemplate cooperation,” he said. “This is not the correct attitude.” Riza called it a matter of bad faith.
British queen’s counsel, Clare Montgomery, a deputy high court judge in the UK, who spoke for the Cypriot legal team that included Attorney-general Costas Clerides, defended Cyprus’ position saying Cyprus had “no obligation to cooperate with the aggressor [Turkey]” and that this case could not be approached in a vacuum.
“The real reason there was no trial in this case was because of Turkey,” she said. “The bad faith argument is unjustified. It’s an issue of international law”. Montgomery said Cyprus was “not indifferent” to the tragedy of the case but “failure to secure results” was not the fault of the Republic.
Speaking for the Turkish government, ambassador Erdogan İscan, told the court Turkey simply had no jurisdiction in the case. He also argued that the victims were the murdered family and not their relatives.
He said the murders occurred “in south Cyprus” under the control of Greek Cypriot authorities. There was also no legal way for Turkish Cypriot authorities to just arrest the suspects “lawfully”, he said, as it would have breached the European Convention on Human Rights. They did not have the case file because Greek Cypriot police refused to hand it over.
Riza urged the court to leave aside the political aspects that were unique to the situation in Cyprus, saying it should not compromise on the human rights side of the issue. He addressed the points of the feuding countries, Cyprus and Turkey, saying the Republic was entitled under international law not to recognise or deal with the ‘TRNC’ but found it “extraordinary” that police officers could not cooperate in such a case
“The short answer [to Cyprus] is; that argument [non-recognition], has been dealt with [by the ECHR] on at least five occasions before,” he said, urging the court not to revisit it even though the ECHR does not work on the principle of binding precedent, he said.
On Turkey’s argument that it has no jurisdiction link, Riza said that in reality that is not the case. “It was given by this court in the [Titina] Loizidou case,” he said, referring to the landmark property ruling in 1996 in favour of a Greek Cypriot refugee against Turkey, which was found culpable by the ECHR of preventing her from accessing her property in the north.
Riza also held that the Turkish Cypriot side had been ambivalent in the 2005 murder case citing the Cyprus 1960 constitution requiring that Turkish Cypriots must be tried by Turkish Cypriot judges when the victim is a Turkish Cypriot. In this instance, he said the Turkish Cypriot side seemed to be accepting the Cyprus constitution, the one they withdrew from in early 1960s.
He said a minimum level of cooperation was possible in the murder case without recognition of the north coming in to play. The sides had done so in other instances involving state services across the Green Line such as medical emergencies. “But for political reasons [on both sides] it was decided not to engage in the minimum,” he added. “The court was right to rule against both sides [in April 2017].
Montgomery for Cyprus, said the case would have been resolved had it not been for Turkey. In international law, she said there was “only the territory of Cyprus” and the victims and suspects were Cypriot. But Greek Cypriot authorities could not resolve the case due to Turkish constraints in the area of the island the government could not exercise control over. “It had requested the return of the suspects. It was not indifferent.”
At the same time, she said the applicants in the case did not have a right to insist on an investigation with concrete results “where there are concrete constraints” to achieving those results, and that constraint was the presence of Turkey in the north of Cyprus and to remove that constraint “Turkey should withdraw its troops”.
“There was a valid arrest warrant applicable to the whole of Cyprus,” Montgomery said adding that at the time Turkey would not respond to “anything other than full diplomatic contact”. Turkey does not recognise Cyprus as a legitimate state.
İscan, for Turkey, responded that a file with the extradition request had been handed to an usher at the Turkish embassy in Athens who was “not competent” to receive the file. “There was no valid transmission of an extradition request,” he said. “When Ms Montgomery started her speech, I thought I was in a court of law,” said Iscan, saying the Cypriot side’s legal representative had talked about “invasion and occupation”. “The situation in Cyprus is much more complicated than that put forward by the Greek Cypriot authorities,” he said. “Neither the UN, nor any international organisation has ever referred to the situation in Cyprus as one of aggression or occupation,” he added.
After a two-and-a-half hour hearing, the Grand Chamber said it would deliberate, and issue its ruling at a later date.
Parallel investigations that led nowhere
In the early hours of January 15, 2005 Cyprus police found Elmas Guzelyurtlu dead in a ditch and his wife, Zerrin, and daughter, Eylul, in the back seat of their car, which was parked on the hard shoulder of the Nicosia-Larnaca highway. The killers had fled back to the north. The authorities of the Cypriot government and the Turkish government, including those of the ‘TRNC’, carried out parallel investigations into the murders.
The Cypriot authorities, among other things, secured evidence at the scene of the crime and at the victims’ house, carried out post-mortem examinations, took statements from witnesses (including the victims’ relatives), and performed ballistics examination and DNA tests.
The authorities concluded that the victims had been kidnapped and murdered in the early hours of 15 January 2005 and identified eight suspects.
Domestic and European arrest warrants were issued and the Cypriot police asked Interpol to search for and arrest the suspects with a view to extradition.
Red notices were published by Interpol on all the suspects and they were added to the Cypriot government’s “stop list” of individuals whose entry into and exit from Cyprus is monitored or banned.
The Turkish (including the ‘TRNC’) authorities also took a number of investigative steps and by the end of January 2005 all of the suspects had been arrested.
They denied any involvement in the crimes and were released on or around 11 February 2005 owing to a lack of evidence connecting them to the murders. The file was classified as “non-resolved for the time being” in March 2007.
The ‘TRNC authorities requested that the case file with the evidence against the suspects be handed over so that they could conduct a prosecution.
The Cypriot authorities refused and in November 2008 they sought the extradition of the suspects who were within Turkey’s jurisdiction (either in the ‘TRNC’ or in mainland Turkey) with a view to a trial.
The extradition requests were returned to the Cypriot authorities without reply. The investigations of both respondent states thus reached an impasse and have remained open since. The Cypriot government, the ‘TRNC’ and the applicants were in contact with the United Nations Peacekeeping Force in Cyprus Unficyp about the case.
Meetings were held and there was an exchange of telephone calls and correspondence. However, Unficyp’s efforts to assist the sides to bring the suspects to justice have proved unsuccessful. The application was lodged with the European Court of Human Rights in 2007.
In its ruling last April the ECHR found by five votes to two that there had been a violation of Article 2 – right to life/investigation – of the European Convention on Human Rights by Cyprus and, unanimously, that there had been a violation of Article 2 by Turkey. The court held that each respondent government was to pay each of the seven applicants – the Guzelyurtlus’ family members – €8,500 in respect of non-pecuniary damage.
The Chamber found that “it was clear that neither government had been prepared to compromise and find middle ground, despite various options having been put forward, including by the United Nations”.
It had also rejected the Cypriot government’s notion that cooperation with northern Cyprus lent legitimacy to the ‘TRNC’.
The court said that it did not accept that steps taken to cooperate in this case would amount to recognition, implied or otherwise of the ‘TRNC’.