Cyprus Mail
CM Regular Columnist Opinion

An ECHR murder case ruling is to decide whether Cyprus is one

British queen’s counsel, Clare Montgomery, representing Cyprus pictured with attorney-general Costas Clerides, addressing the ECHR on the case last March

Case cuts to the heart of Cyprus and Turkey’s failure to cooperate

By Alper Ali Riza

 

Waiting for the Strasbourg court’s decision in the Guzelyurtlu case against Cyprus and Turkey has been like waiting for Godot in Samuel Becket’s famous play in which two blokes wait and talk indefinitely for somebody who never comes or something that never happens.

A bit like waiting for a settlement in the Cyprus talks – which is why Godot is such a great play: it captures the absurdity of the human condition in all its manifestations.

I don’t want to jinx the result, but rumour has it that the judgement to be handed down on Tuesday, January 29, will be more direct than previously, and justice to the Guzelyurtlu family will at last be done – inshallah.

It has been a long time coming, since 2007 to be precise. An absurdity in itself since the European Court of Human Rights (ECHR) may be in breach of the convention right to justice within a reasonable time; though to be fair the court’s workload increased exponentially after states from the former Soviet Union’s sphere of influence joined the legal space of Europe pregnant with human rights issues.

The case concerns the murder of a Turkish Cypriot family in Cyprus. Elmas Guzelyurtlu, his wife and 15-year-old daughter were kidnapped in Greek Cypriot Nicosia on January 15, 2005 by a gang of Turkish Cypriot criminals and murdered in cold blood on the Nicosia-Larnaca highway. The murderers escaped to northern Cyprus beyond the reach of the Republic of Cyprus (RoC) police.

Northern Cyprus is under the jurisdiction of the ‘Turkish Republic of Northern Cyprus’, a state declared illegal by the UN after it unilaterally declared independence in 1983. It is, however, recognised by Turkey, the state that has been held accountable under European human rights law for the protection of human rights there.

The First Chamber of the ECHR decided that both Cyprus and Turkey failed in their obligation to cooperate in the investigation and prosecution of the murder of the Guzelyurtlu family in violation of the right to life, but instead of complying with the court’s decision both states appealed to the Grand Chamber.

Cyprus appealed primarily on the ground that as a sovereign state it was entitled to refuse to cooperate with the Turkish Cypriot police, an emanation of an illegal state, that RoC submitted it had a duty to bring to an end under a principle established by the International Court of Justice in 1971 in the Namibia case. On the other hand in the inter-state decision in Cyprus v Turkey of 2003, the ECHR decided that the protection of human rights trumps all recognition issues as does the convention itself that provides that absolute rights like the right to life are protected absolutely.

Fingers crossed the court will uphold these two related principles and knock some sense into the obsession some people, including police officers, have about recognition – as if the RoC belongs to one community only!

Turkey appealed on the ground that the crime was committed in southern Cyprus, a part of the world with which metropolitan Turkey had no jurisdictional link. The obligation to cooperate with RoC implied a universal jurisdiction to protect the right to life worldwide that could not exist absent a jurisdictional nexus. The crime took place in southern Cyprus and the murderers escaped to northern Cyprus, neither of which were part of the metropolitan territory of Turkey, ergo there was no jurisdictional connection with her.

I nearly fell off my chair when I read this ground as it raised questions about the legal nature of Turkey’s presence in northern Cyprus and we now wait with bated breath to see if the court decides that Turkey has a jurisdictional connection not just under the treaties of establishment and guarantee but as an occupying power.

The treaties and the 1960 constitution for which the RoC, under its exclusively Greek Cypriot stewardship, has a love-hate ambivalence, provide a complete answer to Turkey’s argument based on lack of jurisdictional nexus.

The sovereignty of the RoC belongs to her people and they comprise two communities. Under general international law only the government of RoC is recognised, but under the international treaties of establishment and guarantee Turkey has a legal obligation not only to ensure human rights are observed but to restore the basic provisions of the 1960 constitution of the RoC. This is not just to enable cooperation between the two communities, but to restore Turkish Cypriot participation in the government of Cyprus, not the creation of a separate Turkish Cypriot state.

Behind all the legal arguments in the Guzelyurtlu case were a number of propositions from medical jargon. The 1960 constitution is alive but unwell. The illness was the RoC’s failure in its duty from 1963 to 1974 to protect its citizens that resulted in changes in its demography that are difficult to retrieve in the short and medium term. Given that the Turkish Cypriot community is concentrated in one area the cure requires adjustments to the constitution to reflect these changes rather than a root and branch overhaul of the 1960 arrangements.

The Turkish Cypriot community should eschew claims to equality that are robotic and not meaningful. The Turkish Cypriots cannot remain oblivious to the fact that they are now concentrated in one area in northern Cyprus and can afford to be magnanimous on security. Finally, as union with Greece has now receded to vanishing point, the exorbitant privileges accorded to the Turkish Cypriot community in order to avoid enosis and secure independence are no longer necessary or desirable.       

All these thoughts were swirling in my head as I decided to mount a full scale legal assault on Turkey’s lack of any sense responsibility for the state of affairs that persists in Cyprus.

The argument against Turkey was that she had a duty to cooperate in the investigation of the murder in the RoC because the two parts of Cyprus belong to the same de jure jurisdiction that she is still treaty bound to restore. And that although the Cypriot people belong to two communities, they share a single citizenship and a single territory that only projects two states mainly on Turkey’s insistence.

Under human rights law the RoC retained jurisdiction to protect its citizens over the whole of its territory, which has been imputed to Turkey in north Cyprus temporarily as she is in de facto control in order to ensure observance of human rights obligations undertaken by the RoC when it joined the Council of Europe.

Originally the failure of human rights protection in Cyprus, however, was primarily a failure by the RoC between 1963 and 1974 in its duty to protect its citizens – whether Greek or Turkish Cypriot – which it managed to hide hitherto owing to Turkey’s inertia in restoring the state of affairs contained Cyprus’ 1960 constitution.

Under the laws of the constitution of Cyprus, Turkey’s intervention did not and could not create a separatist independent entity within the territory of the RoC. For the purposes of human rights protection, however, both Cyprus and Turkey had an obligation under the treaty of establishment to resolve issues of human rights in cooperation with each other and I hope the Grand Chamber of the ECHR confirms this loudly and clearly next Tuesday for all to hear.

For it is high time people in Cyprus took treaties and constitutions and conventions seriously and not just cherry pick the bits that suit and discard the rest.

 

 

Alper Ali Riza is a queen’s counsel in the UK and a part-time judge. He  also appeared as leading counsel for the Guzelyurtlu family before the Grand Chamber.

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