TrustHLT/LaCour huggingface dataset:
Robert Spano (Judge): Could you explain what bearing that case, and in particular, paragraphs 53 and 54 of the Grand Chamber judgment on the jurisdictional link, of course, mutatis mutandis, would have in this case, considering the fact that Turkey indeed, or the TRNC indeed, instituted an investigation?
Robert Spano (Judge): The question arises, does that suffice to trigger the jurisdictional link under the Markovitsch principles?
Robert Spano (Judge): I would ask Mr. Riza if you have a view on this as well.
Robert Spano (Judge): It would be very useful, thank you.
Guido Raimondi (JudgeP): The hearing is resumed and I call Mr. Riza.
Guido Raimondi (JudgeP): Please, you have the floor, Mr. Riza.
AP1 (Applicant): Yes, thank you, Mr President.
AP1 (Applicant): I think I'll deal with, obviously, the judges' points first, and then these decisions made by the other sides, if I may.
Guido Raimondi (JudgeP): Yes, please.
Guido Raimondi (JudgeP): You want to address first the questions of the judges.
AP1 (Applicant): Is that okay? Or do you want me to do it the other way around?
Guido Raimondi (JudgeP): No, you are completely free Mr. Riza.
Guido Raimondi (JudgeP): You decide how to organize now.
AP1 (Applicant): Yes, I'm very grateful because I want to deal with, obviously, the judge's point, just in case I run out of time, and then deal with any other points.
AP1 (Applicant): I think the first point is to answer Judge Siciliano's point concerning the liaison between the two police forces in play in this case, and the question of why it is that that is recognition.
AP1 (Applicant): My submission is as follows.
AP1 (Applicant): Normally, as I understand the position, recognition is direct or indirect.
AP1 (Applicant): Direct recognition is obviously when the relevant plenipotentiary of one country decides to recognize directly another state.
AP1 (Applicant): That's direct.
AP1 (Applicant): The problem arises because of implied recognition.
AP1 (Applicant): And implied recognition can arise in different sets of circumstances.
AP1 (Applicant): However, because it is implied, what normally happens, as I understand it, I mean, I'm not a diplomat, so I don't really know, but as I understand it, what normally happens is that if there is non-recognition, then what happens is that a particular agent of the government says, well, look, I'm going to provide you with the evidence in this case because you need it.
AP1 (Applicant): I'm referring to the facts of this case.
AP1 (Applicant): Because you need it in order to arrest, detain, and hand over the suspects.
AP1 (Applicant): I'm only giving it to you for that purpose and that purpose alone, and on the strict understanding that it in no way amounts to recognition.
AP1 (Applicant): That would have dealt with the problem in my submission immediately without any difficulty.
AP1 (Applicant): It's done that way.
AP1 (Applicant): It's, as I understand the position, where there is a serious question of recognition or lack of it, then it's made absolutely clear.
AP1 (Applicant): The reason why I made the submission, of course, is because police officers are not really engaged in the foreign relations or the diplomatic relations of their country.
AP1 (Applicant): Their job is to investigate crime, apprehend the criminals, and bring them to trial.
AP1 (Applicant): That is the role of the police.
AP1 (Applicant): The police in this case, in my submission, also knew or ought to have known that in Cyprus and Turkey, it had been decided that human rights considerations override any duty of recognition.
AP1 (Applicant): I know Ms. Montgomery has made submissions and I'll come to them in due course.
AP1 (Applicant): You've got them in the pleadings anyway.
AP1 (Applicant): But the position is like this.
AP1 (Applicant): There should have been a clear understanding between the police and the central government in the Republic that when it comes to human rights, questions of non-recognition are not in play.
AP1 (Applicant): That's what the court decided in Cyprus and Turkey.
AP1 (Applicant): That is what it decided in a case in which Cyprus was a party.
AP1 (Applicant): Ms. Montgomery says, well, actually it's individuals.
AP1 (Applicant): But that's not right.
AP1 (Applicant): In the case of Cyprus and Turkey, it was an interstate case, and it was a case in which Cyprus won everything else.
AP1 (Applicant): It won, I think, on about maybe 25 points.
AP1 (Applicant): It lost on one point only, on this question.
AP1 (Applicant): Yet the police in 2000, that was 2001, the police in 2005 were saying we're not prepared to deal on a fundamental question of recognition.
AP1 (Applicant): In my submission, all they had to do, quite frankly, was to say to the Turkish Cypriot police via the UN if necessary, we are going to give you the evidence so as to enable you to arrest these murderers.
AP1 (Applicant): But you give them to us.
AP1 (Applicant): I should emphasize, you hand them over, I should emphasize it has never been our case, on the applicant's side, it has never been our case that the evidence would be handed over so that a trial would take place in the TRNC.
AP1 (Applicant): That was not our case.
AP1 (Applicant): I hope I've made it absolutely clear that that is not our case.
AP1 (Applicant): Our case was when the iron was hot, when the murdered people were still unburied.
AP1 (Applicant): Let us not forget that this is 2005.
AP1 (Applicant): In 2004, the Turkish Cypriot community was not interested in the independence of the Turkish Republic of Northern Cyprus.
AP1 (Applicant): They had just voted to reunite Cyprus.
AP1 (Applicant): So the feeling there at the time, under I think, this of course is tradition, I'm asking you to take traditional notice of political facts, but the reality was that at the time the question of the TRNC was not foremost on anyone's agenda.
AP1 (Applicant): And consequently, in my submission, it would have been very easy for the Republic of Cyprus police to say to the UN and the TRNC, all right, we'll show you the evidence.
AP1 (Applicant): And it was necessary for them to do so.
AP1 (Applicant): I really do invite the court to consider this because the court has ruled time and time again that within the TRNC, the Human Rights Convention applies and it should be upheld.
AP1 (Applicant): For the Turkish Cypriot police to have gone and arrested these men without evidence would have been a breach of Article 5.3 of the convention, I think, because it would have been done on
AP1 (Applicant): no reasonable grounds.
AP1 (Applicant): It was just the police in the TRNC going to their premises and arresting them and then handing them over.
AP1 (Applicant): Well, that would not have been convention compatible at all.
AP1 (Applicant): And consequently, for the Turkish Cypriot police to make a valid arrest and a valid handover, it was necessary for them to have reasonable evidence, some evidence in order to arrest and hand them over.
AP1 (Applicant): So that in my submission, provided the Republic of Cyprus police made it clear in writing to the UN and to the TRNC that this does not mean recognition, then that would have not in any way flouted the non-recognition rule.
AP1 (Applicant): But beyond that, I think I should inform the court and ask you to take judicial notice.
AP1 (Applicant): I'll be contradicted if I'm wrong.
AP1 (Applicant): But actually, there is a contact between the two law enforcement agencies in Cyprus.
AP1 (Applicant): Because for example, if it's a Greek Cypriot who escapes to the north of Cyprus, I think there is cooperation between them, and it does take place.
AP1 (Applicant): So it is a bit odd that in this case it didn't happen, even though it was a murder.
AP1 (Applicant): I think it is the case that, so far as I know, there is quite a bit of crime across the dividing line, and the two sides do talk to one another.
AP1 (Applicant): They just didn't talk in this case.
AP1 (Applicant): And therefore, it falls on the others to make submissions about how that is dealt with.
AP1 (Applicant): But that, as I understand it, is the position in Cyprus.
AP1 (Applicant): May I deal with Judge Spano's point about the question of whether submitting—I think I'm putting it in English terminology, but I think it amounts to this, that when you submit to a jurisdiction, then the jurisdictional link is established.
AP1 (Applicant): And in the Markovic case, I think the authority is to the effect that whether or not there is any jurisdictional link, the fact is that when you do engage in an investigation of your own, then the link is established by dint of that investigation.
AP1 (Applicant): So I question, however, the wisdom of the Turkish, the TRNC, embarking on what was bound to be a futile exercise, because of course they didn't have the evidence.
AP1 (Applicant): And not having the evidence, what's the point of engaging in an investigation?
AP1 (Applicant): I know the court below has ruled that the investigation was fine, but actually it was an investigation that was bound to fail in Limini, because it could not really get off the ground, the evidence wasn't there.
AP1 (Applicant): But may I therefore move to the next point, which is, well, where is the jurisdictional link?
AP1 (Applicant): I think you've heard many submissions on behalf of Turkey that there is no jurisdictional link.
AP1 (Applicant): I do not understand that submission.
AP1 (Applicant): I must confess I do not understand it, because it's in the Treaty, the Treaty of Establishment of the Republic of Cyprus.
AP1 (Applicant): It does say, first of all, it guarantees the rights set out in the European Convention, and then it goes on in Article 10 to say, this is the Treaty of Establishment of the 1960 Treaty of Establishment of the Republic of Cyprus, it then goes on to say that if there's any dispute about any of the provisions, including the reference to the European Convention rights, then the answer is to engage through the diplomatic channel.
AP1 (Applicant): So they've got to, Cyprus, or rather Turkey and Cyprus, and if anyone else was involved in the two, should have engaged in this case, according to Cypriot laws of establishment of the Republic, if there was any doubt.
AP1 (Applicant): You can look, I don't want to take time now, but when you look at it, you see that in Article 5, it does say that all the rights of the Convention apply to Cyprus, and then in Article 10 it says if there's any dispute about the meaning or application of it, then what you do is that you engage in diplomatic negotiations to sort it out, and if not, you refer it to a body of judges presided over by a judge chosen by the President of the International Court of Justice.
AP1 (Applicant): So there was a mechanism, it's just that the political will to do anything in Cyprus was not there.
AP1 (Applicant): That's the problem.
AP1 (Applicant): Regarding the submissions made by Ms. Montgomery concerning the effect of the international
AP1 (Applicant): articles, I think, on wrongful acts, my submission is that those are, the commentary round that I read, says that they're subject to the exception in the Namibia case, and the Namibia case was actually considered and applied, the exception to it, and applied in Cyprus and Turkey and all the other cases.
AP1 (Applicant): So really, the submissions concerning the duty not to recognize have already, and I emphasize this, have already been dealt with by this court in a number of cases, and the distinctions drawn, or the attempt to distinguish those cases from the present is really not applicable here, because in our submission, there is no difference in principle.
AP1 (Applicant): There is no difference in principle between this case and all the other cases where human rights was held to override the duty not to recognize.
AP1 (Applicant): There is no difference in principle at all, because it is the fact that you are dealing with fundamental human rights that are use slogans, that they take such precedence.
AP1 (Applicant): And this, and I will end with this point, is made clear in Article 15.1 of the European
AP1 (Applicant): Convention on Human Rights, because that article does not permit any derogation.
AP1 (Applicant): I'll end as I began.
AP1 (Applicant): It does not permit any derogation, not only that, but it does mention international law in the text of Article 15.1.
AP1 (Applicant): 51 does refer to international obligations, but it refers to international obligations in the context of making sure that although a state can derogate from some of the articles in the Convention, the ability to do so may be impeded further by international law.
AP1 (Applicant): So far from supporting the argument of the Republic of Cyprus, it undermines it.
AP1 (Applicant): So I would ask you, please, I would invite you to look at the terminology right at the end of 15.1, where it does make reference to international law, but it does so in the
AP1 (Applicant): opposite way, in support of the protection of human rights rather than derogation from them.
AP1 (Applicant): And this is anything else, those are my submissions in the club.
Guido Raimondi (JudgeP): Thank you very much, Mr. Riza.
Guido Raimondi (JudgeP): I call Mrs. Montgomery, please, on the floor.
GR2 (Government): may I address Judge Spano's question first in relation to Markovich?
GR2 (Government): We do indeed suggest that there was sufficient jurisdiction, given the fact that Turkey, through TRNC, commenced criminal proceedings in this case and purported to arrest suspects and interrogate them.
GR2 (Government): And in those circumstances, the paragraphs to which Judge Spano's referred in paragraphs 53 and 54, the decision in Markovich recognizes that where proceedings are brought under the law of a state, then the rights of those who are party to those proceedings have to be recognized in accordance with the convention.
GR2 (Government): And so it is one of the ironies of the Turkish government's submissions that they've said no jurisdictional link to TRNC.
GR2 (Government): And yet in the same breath, the TRNC has said, oh, there is a sufficient jurisdictional link, and we require you to send the evidence so that we can try the suspects in TRNC.
GR2 (Government): That appears to be a contradictory position.
GR2 (Government): And the true position is indeed that there's jurisdiction.
GR2 (Government): But even if we were wrong on that, looking at the RANSEV position, this is not a case where we would submit its mere nationality or presence that engages Turkey's jurisdiction.
GR2 (Government): There are two very special circumstances.
GR2 (Government): One is the fact that it is in unlawful occupation of the Republic of Cyprus's territory, and that occupation is itself preventing Cyprus exercising jurisdiction.
GR2 (Government): And secondly, in the case particularly of the Turkish nationals, it is known that even if a request for extradition were to be made, it would be refused on the ground of non-extradition of nationals.
GR2 (Government): It is also known that there are Turkish nationals who are suspect, and therefore, according to Turkish law, can only be tried in Turkey.
GR2 (Government): And that would be a sufficient special circumstance within the context of RANSEV.
GR2 (Government): So we're not arguing for the 47 members of the Council of Europe to be liable for non-cooperation in every offense where there are cross-border elements.
GR2 (Government): But where there are the particular elements that are present here, we suggest that Turkey is liable.
GR2 (Government): The alternative, as I said, is simply to create a land of outlaws and gangsters who can go freely to the TRNC and stay there without any risk of redress in complete impunity.
GR2 (Government): I should turn to deal with the second point that was raised by the government of Turkey, which was the suggestion that there were a limited number of practical steps, all of which would involve illegality on its part, that it could have taken.
GR2 (Government): Well, I can suggest one that it could have taken, which would be in conformity with international law.
GR2 (Government): It could withdraw from northern Cyprus without its troops on the Green Line.
GR2 (Government): The Republic of Cyprus could simply resume jurisdiction over its territory.
GR2 (Government): But the second suggestion, that it would be obviously unlawful, made by both Mr. Risa and Mr. Talman,
GR2 (Government): that it would have been obviously unlawful, according to domestic law, to put the suspects into a police car and take them to a court in southern Cyprus.
GR2 (Government): I remind the court that there was a warrant for arrest, which was a valid domestic instrument throughout the whole of the Republic of Cyprus, for the arrest of these suspects on the basis of substantial evidence implicating in the crimes.
GR2 (Government): The suggestion there was something unlawful in the execution of that valid domestic process seems bizarre.
GR2 (Government): But no doubt the court will take into account that the concern for the rule of law and the existence of respect for it is rather difficult to maintain on the part of the government of Turkey, where it continues unlawfully to prevent access for the police, the fire services, the officers of the Republic of Cyprus to maintain control over its citizens in the north.
GR2 (Government): Finally, as I have already observed, the claim that somehow, as Mr. Reza says,
GR2 (Government): that the frustration was caused by the absence of the file being available, I emphasize the file was provided to all the parties when the case was admitted by this court in 2009, and yet no steps have been taken in relation to any of the suspects.
GR2 (Government): I turn then to a point that arises as a result partly of the question asked by Judge Sicilianus, which is, was this really about police-to-police contact, as is suggested by the applicant?
GR2 (Government): And the reality is, as is clear from the Turkish government's submissions, that more was required.
GR2 (Government): It is plain from what Turkey has said, speaking as the mouthpiece for the TRNC as well as for Turkey itself, that it would not have responded to anything other than formal diplomatic contacts based upon existing treaty obligations, whether bilateral or multilateral.
GR2 (Government): So given that position, it really is ironic that we are also confronted with the submission that this case is not about recognition, because if we have to have treaty relations with TRNC, whatever that is, or with Turkey in order to ask for mutual legal assistance or for extradition, that is clearly and simply recognition of statehood.
GR2 (Government): It cannot be anything else.
GR2 (Government): And the suggestion that state practice tells against us on that is just wrong.
GR2 (Government): The court will no doubt have time to consider the state practice, particularly the English case of Akerke, which the Turkish government places great weight on.
GR2 (Government): But if you read the judgment, as I have done, and I'm sure the court will, the English court was saying this is not about recognition, because it doesn't involve any treaty arrangement.
GR2 (Government): If it did, then it would violate the principle of non-recognition.
GR2 (Government): So far from supporting the case for the government of Turkey that non-recognition isn't engaged here, non-recognition is directly engaged for as long as Turkey insists that it will not cooperate without a domestic and an international legal instrument.
GR2 (Government): I can deal very briefly, I hope, with the suggestion the principle of non-recognition is in some way internationally invalid.
GR2 (Government): The International Law Commission's report on the responsibility, articles on the responsibility of states for internationally wrongful acts has not only been the subject of detailed study and final report, it has also been approved ad referendum on a number of occasions by the General Assembly.
GR2 (Government): And it represents the codified principles of international law.
GR2 (Government): But as I've already said, in fact, in relation to the non-recognition of acts of aggression of illegal occupation, the position is in any event established by the general peremptory norms of international law.
GR2 (Government): And the suggestion by Mr. Reeser most recently
GR2 (Government): that in some way the Namibia principle nevertheless requires cooperation is completely wrong.
GR2 (Government): As the court will know, the Namibia principle is concerned only with acts which are essential to the welfare of the people whose land is unlawfully occupied.
GR2 (Government): So for example, recognition would have to be given under the Namibia principle to registrations, births, and deaths in Namibia.
GR2 (Government): But it would not extend so as to require Cyprus as a matter of obligation to enter into treaty arrangements with Turkey in order to exercise its own sovereign rights over its own territory.
GR2 (Government): So that brings me back to the final point, which perhaps I need to address.
GR2 (Government): Or perhaps I should mention first a point just recently made by Mr. Reeser, the suggestion
GR2 (Government): that somehow the applicability of the rule of non-recognition was dealt with in Cyprus and Turkey in the decision of May 2001.
GR2 (Government): The court needs to refer in that decision if it's to give any credence to that submission to paragraphs 234 to 238, which make it quite plain, as I made plain in our opening submissions, that that is relevant only to individual applications.
GR2 (Government): It does not require a sovereign state to exhaust domestic remedies that are available in the north.
GR2 (Government): So I return perhaps to a point that is central here.
GR2 (Government): The applicants had no right to obtain a conviction, or indeed no right to insist that an investigation ended with some concrete result, because the obligation is of means only and not of result.
GR2 (Government): But importantly, all the case law in this court emphasizes that where there are concrete constraints upon the means being effective, and here the most concrete of constraints is the presence of Turkey in the north of Cyprus, no state will be held liable in relation to its investigative obligations if it is those constraints that prevent the outcome that the applicant seeks, rather than the methods that have been used to seek it.
GR2 (Government): So Mr. President, I think that is all
GR2 (Government): I need to say by way of response, and I hope in answer to the questions that have been raised.
Guido Raimondi (JudgeP): Thank you very much Mrs. Montgomery.
Guido Raimondi (JudgeP): And now I call Mr. Talmon, please, to the floor.
GR1 (Government): Let me start with the two questions addressed to Turkey.
GR1 (Government): And I'll start with the question of Judge Bosniak.
GR1 (Government): Judge Bosniak asked how or what would a valid request for extradition look like.
GR1 (Government): And we suggested in line with the case law of the International Court of Justice that such documents have to be transmitted through the ordinary diplomatic channel.
GR1 (Government): Now, in this case, this was not the case.
GR1 (Government): The file or the extradition request was handed to an usher at the Turkish embassy in Athens.
GR1 (Government): As you probably all know, if you have ever tried to serve papers on a foreign government and you have tried to serve them on a foreign embassy and you try to hand them to someone at that embassy, they will normally be immediately returned because the usher is not competent to receive any papers.
GR1 (Government): The ordinary diplomatic channel in the present case was not available to the Greek Cypriot authorities for the simple reasons, not because of non-recognition, but because there are no diplomatic relations between Turkey and the Greek Cypriot authorities.
GR1 (Government): That is the reason why Turkey adds a proviso to any convention under the auspices of the Council of Europe that treaty membership does not create or cannot create any legal obligations between Turkey and the Greek Cypriot authorities in southern Cyprus.