TrustHLT/LaCour huggingface dataset:
GR1 (Government): And finally, that it was of crucial importance that the convention as a system for the protection of human rights was interpreted and applied in a manner that rendered these rights practical and effective, not theoretical and illusionary.
GR1 (Government): Mr. President, these statements can
GR1 (Government): be applied to all high-contracting parties and thus make the procedural obligation to investigate and to cooperate a freestanding obligation of all high-contracting parties.
GR1 (Government): The applicants do not do any better, Mr. President.
GR1 (Government): In their written submissions to the Grand Chamber, they state, and I quote again, in the case of murder with a trans-jurisdictional element, the procedural aspect requires the states responsible for securing the right to life to cooperate in securing evidence, because otherwise there would be a gap in human rights protection.
GR1 (Government): And the duty to cooperate derives directly from the duty to secure the procedural aspects of the right to life within the legal space of Europe in Cyprus.
GR1 (Government): The applicants speak about an obligation to cooperate of, I quote, the states responsible for securing the right to life.
GR1 (Government): Without addressing the question of which states are actually responsible for securing the right to life in a particular situation and how these states are to be identified.
GR1 (Government): In particular, the applicants do not explain on what legal basis Turkey should be responsible for securing the right to life in southern Cyprus, a territory under the control of the Greek Cypriot authorities.
GR1 (Government): it is Turkey's submission that the reasons given by the chamber and the argument put forward by the applicants cannot explain in terms of the convention why Turkey should be under a procedural obligation to investigate on its own initiative murders in southern Cyprus and to cooperate with the murder investigation of the Greek Cypriot authorities.
GR1 (Government): Mr. President, in its questions to the parties,
GR1 (Government): the court asked Turkey to address the compatibility razione loci of the applicants' complaints against Turkey with the provisions of the convention.
GR1 (Government): Turkey submits that this is the decisive question on which the applicants' case turns.
GR1 (Government): The admissibility requirement of competence razione loci limits the competence of the court to examine breaches of the convention to allege breaches taking place within the jurisdiction of the respondent state.
GR1 (Government): The high contracting parties have not committed themselves to secure the rights and freedoms defined in the convention to everyone, everywhere.
GR1 (Government): They have rather committed themselves in Article I to secure these rights and freedoms to persons within their jurisdiction only.
GR1 (Government): The exercise of jurisdiction over the victim of a violation of the convention is thus a necessary condition, a threshold requirement for a high contracting party to be able to be held responsible for a violation of the convention.
GR1 (Government): In other words, there must be a jurisdictional link between the victim of the violation and the convention.
GR1 (Government): Sorry, the victim of the violation and the respondent state.
GR1 (Government): In the present case, there must thus be a jurisdictional link between the victims of the alleged violation of Article II and Turkey.
GR1 (Government): The question of who is the victim of an alleged violation of the procedural limb of Article II was addressed by the European Commission of Human Rights in the case of W versus the United Kingdom.
GR1 (Government): The commission held that the victim was determined by the person murdered, that is the direct victim, and not by the applicant, usually the next of kin of the person murdered, who qualifies only as an indirect victim.
GR1 (Government): The victims in the present case are thus the three members of the Güzeliotlu family murdered in the area of southern Cyprus under the control of the Greek Cypriot authorities.
GR1 (Government): Mr. President, Turkey submits that there
GR1 (Government): is no jurisdictional link in the present case between the persons murdered and Turkey.
GR1 (Government): It is well established in the court's case law that a person comes within the jurisdiction of a state in terms of Article I if, first, the person is present in the territory of the state, or second, the person is present in an area under the state's control, or third, the person is subject to the authority and control of agents of the state.
GR1 (Government): None of these basis of jurisdiction is applicable here.
GR1 (Government): The murders occurred in southern Cyprus.
GR1 (Government): Southern Cyprus is neither Turkish territory, nor is it under the effective control of Turkey.
GR1 (Government): There is also no suggestion that Turkey or its agents were in any way involved in the murders.
GR1 (Government): At the time of their death, the persons murdered, the victims, were present in an area of southern Cyprus under the control of the Greek Cypriot authorities, that is, within their jurisdiction.
GR1 (Government): The jurisdictional link of the victims of the alleged violation of Article II is thus with the Greek Cypriot authorities, not with Turkey.
GR1 (Government): Without a jurisdictional link, there was no procedural obligation under Article II to investigate murders taking place in southern Cyprus.
GR1 (Government): Mr. President, this position is supported both by the literature
GR1 (Government): and the court's case law.
GR1 (Government): Two cases concerning unlawful deaths in Cyprus with a cross-border element are of particular interest in this connection.
GR1 (Government): In Emin and others versus Cyprus, Greece, and the United Kingdom, the applicants alleged a violation of the procedural limb of Article II by the United Kingdom, claiming that the British government had not investigated the killing of their relatives in southern Cyprus, although the victims had held British passports and had worked in the British sovereign base areas in Cyprus.
GR1 (Government): The court ruled that the obligation to investigate did not fall on the United Kingdom, but solely on Cyprus, under whose jurisdiction the victim was at the time of death.
GR1 (Government): In the second case, Rancev versus Cyprus and Russia, the applicant also alleged a violation of the procedural aspects of Article II, this time by Russia, claiming that the Russian authorities had not investigated the killing of his daughter in southern Cyprus, although the victim was a Russian national.
GR1 (Government): The court held, and I quote, the court recalls that Ms. Rancev's death took place in Cyprus.
GR1 (Government): Accordingly, unless it can be shown that there are special features in the present case which require a departure from the general approach, the obligation to ensure an effective official investigation applies to Cyprus alone.
GR1 (Government): The court indicated that there may be special features which may require states to investigate murders occurring outside the territory or area of control, but failed to identify what these special features are.
GR1 (Government): It found, however, that neither the nationality of the victim nor the victim's place of residence qualified as a special feature.
GR1 (Government): The chamber held that Turkey had a duty to investigate the murders in southern Cyprus because, I quote, the suspected perpetrators of the murder are aware either in the TRNC or in mainland Turkey, and because the Turkish and TRNC authorities were informed of the crime and red notices concerning the suspects were published.
GR1 (Government): Turkey submits that such factual circumstances cannot qualify any more as special features than the nationality or place of residence of the murder victim.
GR1 (Government): Seizing on such factual circumstances would create an obligation to investigate for all 47 parties to the convention.
GR1 (Government): In fact, this would be the first time in fact this would make the obligation to investigate a freestanding obligation of all high contracting parties.
GR1 (Government): due to the lack of a jurisdictional link between the victims and Turkey and the absence of any special features, the applicants complained that Turkey failed to conduct an effective investigation into the killing of their relatives is outside the court's competence, ratione loci, and consequently inadmissible.
GR1 (Government): Mr. President, let me now turn to Turkey's alleged obligation
GR1 (Government): to cooperate with the murder investigation of the Greek Cypriot authorities.
GR1 (Government): Turkey has established that there is no jurisdictional link between the persons murdered and Turkey.
GR1 (Government): The chamber did not try to establish such a jurisdictional link, but simply asserted such an obligation on the part of Turkey.
GR1 (Government): The chamber relied on the cases of Olochlin, Cummins, and in particular, Rantsev.
GR1 (Government): In none of these cases, the court found a violation of the procedural limb of Article II.
GR1 (Government): The first two cases did not concern an obligation to cooperate at all, but dealt simply with the question of whether a state to which suspected perpetrators had fled and in which evidence of the offense could be located was under an obligation to investigate.
GR1 (Government): In Olochlin, the court even stated expressly that, I quote, the court does not need to decide whether or to what extent Article II could impose an obligation to cooperate.
GR1 (Government): In the third case relied upon by the chamber, Rantsev versus Cyprus and Turkey, the court found that Russia was under an obligation to cooperate with a murder investigation in Cyprus.
GR1 (Government): However, in that case, the court also did not address the question of the jurisdictional link requirement, but simply asserted that the duty to cooperate was the corollary of the obligation of an investigating state to secure evidence located in other jurisdictions.
GR1 (Government): Turkey has shown in its written submissions at paragraphs 49 to 54 that although at the time of her death, Ms. Rantsev was within the jurisdiction of Cyprus,
GR1 (Government): the case was first and foremost a case about human trafficking as slavery under Article IV of the convention.
GR1 (Government): Unlike in the present case, the victim of the violation, the trafficked person, was at some stage in the trafficking chain within the jurisdiction of Russia.
GR1 (Government): The case thus does not call into question the requirement of a jurisdictional link between the victim and the respondent state.
GR1 (Government): due to the lack of a jurisdictional link between the victims and Turkey and the absence of a special feature such as human trafficking or a treaty commitment to investigate, as in the case of Aliyeva and Aliyev versus Azerbaijan, the applicants complained that Turkey failed to cooperate with the murder investigation of the Greek Cypriot authorities is outside the court's competence ratione loci and consequently inadmissible.
GR1 (Government): Mr. President, in its question to the parties,
GR1 (Government): the court also asked about the extent of the procedural obligation imposed under Article II on the respondent states to cooperate with investigations held outside their jurisdiction.
GR1 (Government): It is Turkey's submission that in the present case, this question does not arise with regard to Turkey because the applicants complained with regard to Turkey is inadmissible.
GR1 (Government): Turkey would nevertheless like to offer two general observations.
GR1 (Government): First, it is Turkey's view that the extent of the procedural obligation to cooperate under Article II is to be determined by reference to a state's existing international legal rights and obligations in the area of legal assistance in criminal matters outside the convention.
GR1 (Government): The procedural obligation to cooperate is derived from the substantive obligation in Article II and as a derivative obligation cannot give rise to new independent substantive obligations under the convention.
GR1 (Government): In particular, a procedural obligation to cooperate cannot be defined as a derivative cannot establish an obligation to extradite in the absence of an applicable extradition treaty.
GR1 (Government): This view is supported by the court's jurisprudence.
GR1 (Government): In all cross-border cases where the court examined whether a state had met its obligations to cooperate, it made express reference to existing legal assistance instruments binding upon the states concerned.
GR1 (Government): For example, in Rancev versus Cyprus and Russia, the court found Cyprus in violation of its procedural obligation under Article II because it had not addressed any request for legal assistance to Russia under the bilateral and multilateral legal assistance agreements binding upon the two states.
GR1 (Government): Similarly, in Huzinovah versus Azerbaijan, the court found a violation of the procedural limb of Article II because Azerbaijan had not examined the feasibility of transferring a criminal case to Georgia after Georgia had refused to extradite the suspects, although the various international legal instruments binding upon the two states clearly provided for such a possibility.
GR1 (Government): Second, Turkey takes the position that the extent of the procedural obligation to cooperate under extradition agreements depends on the particular circumstances of each individual suspect.
GR1 (Government): For example, the extent of the obligation to cooperate may vary depending on a suspect's nationality or its place of residence.
GR1 (Government): In this connection, Turkey would like to point out that the chamber did not properly distinguish between the various suspects in this case.
GR1 (Government): Some were Turkish nationals.
GR1 (Government): Other were TRNC nationals.
GR1 (Government): Some were based in Turkey.
GR1 (Government): Others were based in northern Cyprus.
GR1 (Government): Some were based in Turkey, others were based in northern Cyprus.
GR1 (Government): Mr. President, Turkey would also like
GR1 (Government): to offer a brief comment on the view that the extent of the Greek Cypriots' authorities' obligation to cooperate with the Turkish Cypriot authorities was zero because of an alleged duty not to recognize the TRNC and not to render aid or assistance in maintaining the TRNC as a state.
GR1 (Government): There is absolutely no support for this position in international law.
GR1 (Government): Quite the contrary, state practice with regard to non-recognition points in the exactly opposite direction.
GR1 (Government): Turkey has set out in its written submissions at paragraph 69 to 75 that state practice clearly shows that other states cooperate with the TRNC in criminal matters and that such cooperation is not considered as amounting to implicit recognition of statehood or aid or assistance in maintaining the TRNC as a state.
GR1 (Government): There is probably no better authority for this position than the Greek Cypriot attorney general.
GR1 (Government): Commenting in February 2017 on a judgment of the English High Court in London, which approved police-to-police cooperation in judicial proceedings between the United Kingdom and the TRNC, he said, and I quote, this is purely a practical matter, but legally it entails no risk of recognition, even indirectly, of the North.
GR1 (Government): the court further asked whether Turkey had fulfilled its procedural obligation to cooperate under Article 2, and in particular, whether that article had been breached as a result of the Turkish and Turkish Cypriot authorities' failure to extradite or surrender the suspects to the Greek Cypriot authorities.
GR1 (Government): It is Turkey's submission that these questions on the merits do not arise because the applicant's complaint with regard to Turkey is inadmissible.
GR1 (Government): Assuming for the sake of argument that the complaint was admissible, Turkey submits that there was no breach of the procedural obligation to cooperate.
GR1 (Government): The obligation to cooperate is triggered only by a request to cooperate.
GR1 (Government): The court in Rancev versus Cyprus and Russia held that in the absence of a legal assistance request, the authorities were not required under Article 2 to secure the evidence themselves.
GR1 (Government): In the absence of a specific cooperation request, there was thus no obligation on Turkey to cooperate with the Greek Cypriot authorities.
GR1 (Government): The only request ever made by the Greek Cypriot authorities, either directly or through the United Nations force in Cyprus, was for the surrender of the suspects.
GR1 (Government): Under its existing treaty commitments, Turkey, however, was under no obligation to extradite or surrender the suspects to the Greek Cypriot authorities for three reasons.
GR1 (Government): First, the European Convention on Extradition, like the European Convention on Mutual Assistance in Criminal Matters, is binding on Turkey only with regard to its metropolitan territories.
GR1 (Government): Metropolitan territories have been defined by the International Law Commission as territories over which a state has sovereignty.
GR1 (Government): Clearly, Turkey does not claim or enjoy sovereignty over northern Cyprus.
GR1 (Government): With regard to the seven suspects present in northern Cyprus, there was thus no obligation to extradite under the Extradition Convention.
GR1 (Government): Second, there was no valid request for extradition through diplomatic channels, as requested by the European Convention on Extradition.
GR1 (Government): And third, with regard to the fifth suspect who was present in Turkey and thus fell within the territorial scope of application of the Extradition Convention, Turkey was entitled to refuse extradition because of the suspects' Turkish nationality.
GR1 (Government): There is also no obligation to extradite suspects present in a state's territory or in an area under its control.
Guido Raimondi (JudgeP): Mr. Talmon, forgive me for interrupting,
Guido Raimondi (JudgeP): but may I ask you to conclude, please?
GR1 (Government): Mr. President, to conclude, let me just question whether in the present case there was actually
GR1 (Government): any practically feasible and more importantly any legal way to surrender the suspects.
GR1 (Government): The Chamber, the applicants and the other respondents have made the following suggestions for what they considered possible measures of cooperation on the part of the Turkish Cypriot authorities.
GR1 (Government): First the suspects were simply to be handed over to the Greek Cypriot authorities for trial in southern Cyprus.
GR1 (Government): Second the suspects were to be handed over to the Greek Cypriot authorities upon a decision by the United Nations, a task the United Nations refused.
GR1 (Government): Third the suspects were to be put on trial at a neutral venue on the basis of an ad hoc agreement by an ad hoc tribunal comprising retired Turkish Cypriot judges.
GR1 (Government): What all these suggestions have in common is that the case file, including the incriminating evidence against the suspects, was not to be handed over to the Turkish Cypriot authorities or to Turkey because of the Greek Cypriot outright refusal to do so.
GR1 (Government): Against this background it is difficult to see how without any new evidence the Turkish Cypriot authorities could lawfully have re-arrested and handed over the suspects to the Greek Cypriot authorities.
GR1 (Government): Any such arrest and surrender of the suspects for trial by an ad hoc tribunal would have been in breach of Article 5, Paragraph 1C, and Article 6, Paragraph 1 of the Convention.
GR1 (Government): The idea that the suspects could just have been arrested by Turkish Cypriot police, put in a police car, driven to the border, and handed over to the Greek Cypriot authorities in fulfillment of an alleged duty of cooperation reveals an utter disrespect for the rule of law and the rights of the suspects guaranteed by the Convention.
GR1 (Government): Mr. President, Members of the Court, on behalf of the Delegation of Turkey, I thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much Mr. Talmon and I thank all the parties for their submissions.
Guido Raimondi (JudgeP): And now I invite my colleagues, the judges of the Grand Chamber who wish to resort to put their questions to the parties.
Guido Raimondi (JudgeP): I see Judge Sicilianos, please.
Linos-Alexandre Sicilianos (Judge): Je voudrais poser une question aux requérants.
Linos-Alexandre Sicilianos (Judge): Je voudrais poser une question aux requérants et plus particulièrement à M. Riza.
Linos-Alexandre Sicilianos (Judge): M. Riza, vous avez présenté l'affaire comme un cas banal, quotidien, de coopération entre agents de police.
Linos-Alexandre Sicilianos (Judge): You said, I'm quoting you in English, a trivial case of cooperation between police officers. Thats what you said.
Linos-Alexandre Sicilianos (Judge): Est-ce que le transfert... Ma question, maintenant. Est-ce que le transfert...
Linos-Alexandre Sicilianos (Judge): Pas de problème.
Linos-Alexandre Sicilianos (Judge): Je disais, M. Riza, que vous avez présenté l'affaire comme un cas banal, comme un cas quotidien de coopération entre agents de police.
Linos-Alexandre Sicilianos (Judge): Vous avez dit, en anglais, je vous cite: "This is a trivial case of cooperation between police officers." Et ma question est la suivante.
Linos-Alexandre Sicilianos (Judge): Est-ce que le transfert d'un dossier judiciaire à une autre entité pour que celle-ci exerce son pouvoir de sanction pénale, un pouvoir souverain par excellence, peut être assimilé à un simple cas de coopération policière?
Linos-Alexandre Sicilianos (Judge): Merci M. le president.
Guido Raimondi (JudgeP): Merci beaucoup. Now, Judge Bošnjak, please.
Marko Bošnjak (Judge): I have a question essentially for the Turkish government, but of course both the Cypriot government and the representative of the applicants are welcome to comment as well.
Marko Bošnjak (Judge): Both in their observations before the Grand Chamber and also today during the hearing, the Turkish government asserted that there was no valid request for extradition of the suspects.
Marko Bošnjak (Judge): Regarding the extradition request relied upon by the government of Cyprus, the government of Turkey claimed that there is no evidence of communication of that request through proper diplomatic channels.
Marko Bošnjak (Judge): If the course of events in respect of that extradition request renders that request invalid in the eyes of the Turkish government, I would like to ask what would be a proper diplomatic channel under the circumstances.
Marko Bošnjak (Judge): Thank you very much.
Robert Spano (Judge): I have one more question of clarification, which is prompted by an argument intimated by Mrs. Montgomery just now.
Robert Spano (Judge): And it is mainly to Mrs. Montgomery and also to the government of Turkey, Mr. Talmon, but I would invite Mr. Riza also to comment.
Robert Spano (Judge): In your pleadings, Mrs. Montgomery, you referred to the issue of Rasyon-i-Loki of Turkey and you mentioned that in your view, the jurisdictional link was clear, and I quote, based on the Markovitsch principles.
Robert Spano (Judge): Might I ask you to clarify, because that element I don't see from your written observations, I assume you're referring to the Grand Chamber judgment in Markovitsch and others versus Italy of 2006.
Robert Spano (Judge): Could you explain in your view how that case comes in to the equation of a possible recognition of jurisdiction by Turkey?
Robert Spano (Judge): I would also invite Mr. Talmon,,
Robert Spano (Judge): because Markovitsch and others is only referenced in footnote 45 of your written observations.
Robert Spano (Judge): If I'm not incorrect, there is no further reference.