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ECHR condemns Turkey in 2005 Guzelyurtlu murder (updated)

Elmas Guzelyurtlu (left) his wife Zerrin and daughter Eylul were murdered on the Nicosia-Larnaca highway in January 2005

Turkey failed to co-operate with the Republic in the murder of three Turkish Cypriots in 2005, resulting in the perpetrators not being brought to book, the Grand Chamber of the European Court of Human Rights (ECHR) ruled on Tuesday.

The case concerned the investigation into the killing of three Turkish Cypriots in the government-controlled areas in 2005.

The suspected killers of Elmas, Zerrin and Eylul Guzelyurtlu, shot dead on the Nicosia-Larnaca motorway, were criminals from the Turkish Cypriot underworld.

They fled back to the breakaway Turkish Cypriot state. Parallel investigations were conducted by the Cyprus government and the Turkish government, including officials from the ‘Turkish Republic of Northern Cyprus’ (TRNC).

The victims’ relatives took Cyprus and Turkey to the ECHR, alleging their failure to co-operate meant the killers had not faced justice.

The Court considered that both Cyprus and Turkey had had an obligation to cooperate with each other.
Turkey, whose troops have occupied Cyprus’ northern part since 1974, does not recognise the Republic of Cyprus.

The ECHR found that Cyprus had done all that could reasonably have been expected of it to obtain the surrender/extradition of the suspects from Turkey, submitting ‘Red notice’ requests to Interpol and, when this proved unsuccessful, extradition requests to Turkey.

The Cypriot authorities could not be criticised for refusing to submit all the evidence and to transfer the proceedings to the authorities of the ‘TRNC’ or Turkey.

“That would have amounted to Cyprus waiving its criminal jurisdiction over a murder committed in its controlled area in favour of the courts of an unrecognised entity set up within its territory,” the ECHR said.

Turkey, on the other hand, had not made “the minimum effort” required in the circumstances of the case.

It had ignored Cyprus’ extradition requests, returning them without reply, contrary to obligations under Article 2 of the European Convention on Extradition – right to life/investigation – read in the light of other international agreements, to cooperate by informing the requesting state of its decision and, in the case of rejection, to give reasons.

In April 2017, the ECHR had ruled that both Cyprus and Turkey had violated the European Convention on Human Rights because they failed to co-operate in the investigation.

The two countries then requested that the case be referred to the 17-member chamber.

Cypriot authorities had 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. In April 2008 the case file was classified as “otherwise disposed of” pending future developments.

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 February 11, 2005 owing to a lack of evidence connecting them to the murders.

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

The Court reiterated that, as a rule, the obligation to ensure an effective investigation into a murder applied to the state in whose jurisdiction the victim was at the time of death. However, a departure could be justified if there were “special features.”

The ECHR identified two such “special features.” Firstly, the northern part of Cyprus was under the effective control of Turkey. Secondly, the suspects had fled to the northern part of Cyprus, and the Cypriot authorities had thus been prevented from pursuing their own case.

The Court did endorse the initial findings that both Cyprus and Turkey had conducted adequate parallel investigations into the murder.

The crux of the matter was therefore whether and to what extent the two states had had a duty to cooperate under Article 2 of the European Convention on Extradition of 1957, which both Cyprus and Turkey had ratified.

It went on to examine whether Cyprus and Turkey had taken all reasonable steps they could to cooperate with one another, including via informal or ad channels, given that the states had no formal diplomatic relations.

The Court concluded that the Cypriot authorities had used all the means reasonably available to them to obtain the suspects’ surrender/extradition from Turkey.

Although the Turkish government alleged that the Republic’s extradition requests had not been valid, the Court accepted that their delivery through the staff of the Cypriot and Turkish embassies in Athens had been the only channel available, given the absence of diplomatic relations. Also, the Turkish government had not referred to any alternative that Cyprus could have used.

Cyprus had sent the DNA results to the ‘TRNC’ via Unficyp and had been ready to hand over all the evidence to the UN peacekeeping force, “subject to the undertaking by the ‘TRNC’ authorities that the suspects would be surrendered to them.

“However, no such undertaking was forthcoming and the ‘TRNC’s stance throughout, which became even more evident in the proceedings before the European Court, had indicated its intention to prosecute and try the suspects before its courts rather than surrendering/extraditing them to Cyprus.”

In the crucial passage, the Court noted: “Supplying the whole investigation file to the ‘TRNC’ with the possibility that the evidence would be used for the purposes of trying the suspects there, without any guarantee that they would be surrendered to the Cypriot authorities, would have gone beyond mere cooperation between police or prosecuting authorities.

“It would have amounted in substance to Cyprus waiving its criminal jurisdiction over a murder committed in its controlled area in favour of the courts of an unrecognised entity set up within its territory.”

For its part, Turkey had not made “the minimum effort required in the circumstances of the case to comply with its obligation to cooperate with Cyprus for an effective investigation into the murder of the applicants’ relatives.”

The Court ordered Turkey to pay each applicant €8,500 in respect of non-pecuniary damage. It further awarded the applicants a combined sum of €10,000 in respect of costs and expenses.

Attorney-general Costas Clerides, who was on the legal team representing the Republic, commented to the Cyprus Mail: “This judgment is a victory for the position taken by the Republic of Cyprus in all aspects of the particular case and at the same time in matters of general principles.

“For example: that the Republic should not give any of her rights and jurisdictions to the authorities of the ‘TRNC’; the Republic is entitled not to make unnecessary concessions either towards ‘TRNC’ or even to Unficyp in order to show that she exhausted her obligations for effective investigations of crimes; and that Turkey is obliged to cooperate with the Republic at least in criminal investigation procedures.”

Alper Ali Riza QC, representing the Guzelyurtlu family in Strasbourg, said: “It is a fair decision. After all, the murderers escaped to northern Cyprus. The ECHR decides that the police forces in Cyprus do have a duty to cooperate in catching murderers. However, they should leave the finer points of recognition in international law well alone.”

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