TrustHLT/LaCour huggingface dataset:
GR2 (Government): Even if it weren't, even if it were simply a freestanding principle, this court has repeatedly acknowledged that the provisions of the convention can't be interpreted in a vacuum.
GR2 (Government): Despite the fact it is a human rights instrument, the convention is also an international treaty to be interpreted in accordance with the relevant norms and principles of international law.
GR2 (Government): And we would say that obligation must be a fortiori where the public international law obligation under the ILC articles is intended to protect human rights.
GR2 (Government): And one can see the importance of that rule in this case.
GR2 (Government): Were it not for Turkey's wrongful refusal to withdraw from the occupied territory in the north, the applicants would have no cause to complain to this court.
GR2 (Government): There was, contrary to what Mr. Reeser says,
GR2 (Government): a prompt and effective investigation by the Republic of Cyprus.
GR2 (Government): The suspects were promptly identified.
GR2 (Government): Their whereabouts were discovered.
GR2 (Government): The evidence was gathered.
GR2 (Government): All of those suspects would have been detained, tried, and if convicted, punished.
GR2 (Government): Were it not for the obstruction to justice created by Turkish soldiers sitting on a ceasefire line, preventing those who hide in the north from being brought to justice by the Republic of Cyprus.
GR2 (Government): As the court knows, Cyprus is a sovereign state.
GR2 (Government): It is a member of the EU with inherent and supreme rights, as Mr. Reeser accepts, throughout the territory
GR2 (Government): of the island.
GR2 (Government): It has the absolute right to enforce its laws in regard to all people in all of that territory.
GR2 (Government): Any principle of criminal jurisdiction, whether territorial, nationality, residence, passive personality, support the Republic of Cyprus's claim to have sole and original jurisdiction in this case.
GR2 (Government): There is no overlapping jurisdiction.
GR2 (Government): There's no two territories, as Mr. Reeser says.
GR2 (Government): There is only the territory of Cyprus.
GR2 (Government): Article 2 cannot require Cyprus to cede jurisdiction to Turkey, which claims, as you know, through this creature, the TRNC, the right to prescribe criminal laws in respect of people, property, and acts, all taking place outside Turkish territory in blatant contravention of the Bankovic principle.
GR2 (Government): So these are not political considerations, but considerations based on principle and law.
GR2 (Government): Turkey and its liability under the convention, which I will address, does not replace or supplant Cyprus's right to insist upon being the sole and original state properly capable of exercising criminal jurisdiction.
GR2 (Government): Indeed, Turkey's position in this case illustrates that it seeks to provide legitimate support for its refusal to withdraw troops by presenting as law a provision made by its creature, the TRNC, which purports to say that fugitive citizens of the Republic may not be tried by the Republic.
GR2 (Government): It cites as state practice the idea that TRNC should be treated as having a system of criminal courts and that Cyprus should make an extradition request to the TRNC, as if it were a state.
GR2 (Government): It claims, therefore, that the failures by Turkey and the TRNC have, and I quote, a sound basis in domestic law.
GR2 (Government): All of that, as the court will understand, is anathema to a country who has seen its landmass violently occupied to this day.
GR2 (Government): Other than submit to Turkey's demands for the Republic of Cyprus to provide evidence to the TRNC, Cyprus has done everything it can to meet its obligations under Article 2.
GR2 (Government): The real reason that there has not been a trial in this case is because Turkey has breached not only its international obligation to cease its occupation, but also its Article 2 obligation to cooperate.
GR2 (Government): There is no obligation comparable to that found in the Chinova and the Minsk Convention between two states to cooperate in prosecution.
GR2 (Government): In this case, the majority of the suspects were Cypriot nationals committing crimes on Cypriot territory against other Cypriot nationals.
GR2 (Government): There is no lawful basis for that case to be transferred to an organization such as TRNC, and indeed, no prospect of success, even if it was transferred.
GR2 (Government): There's therefore nothing equivalent between this situation and the sort of informal cooperation between the UK and the TRNC discussed in the English case of Akerke.
GR2 (Government): Firstly, the UK is not a direct victim of Turkey's use of force.
GR2 (Government): It has its own national interest to serve.
GR2 (Government): Indeed, the whole reasoning of the UK court was on the basis that the principle of non-recognition was not incorporated into UK law.
GR2 (Government): That has no bearing on this court, which, as I've remarked, has an obligation to consider international obligations, and indeed, specifically, the ILC articles on the responsibility of states for wrongful acts.
GR2 (Government): It certainly cannot be taken as authority for the idea that there is compatibility between cooperating with the TRNC and the rule of recognition.
GR2 (Government): But in particular, of course, the UK is not the injured state.
GR2 (Government): Here, the Republic of Cyprus is the state directly injured by the invasion and continued occupation of its land.
GR2 (Government): And it is for Cyprus to consider whether it wishes to protest, as it does, or whether it could otherwise waive.
GR2 (Government): That is the right of the Republic of Cyprus as a victim of state aggression.
GR2 (Government): It certainly has no obligation, contrary to what the third section says, to accept as lawful laws of the TRNC as a valid basis for recognizing that its citizens have somehow acquired another nationality and are to be tried by another country's courts.
GR2 (Government): Nor is that approach disproportionate or in bad faith, because it is in the long-term interests of Cyprus and the international community as a whole to deter states from acting in aggression, to deter the death that is brought by that conduct.
GR2 (Government): The function of non-recognition in customary law and under the ILC articles is to vindicate the legal character of international law and to punish the violation of peremptory norms against aggression.
GR2 (Government): To state that occupation, forcible occupation and acquisition of territory is inadmissible, to protect against what Professor Crawford called the law-creating effect of facts, it is to deter future aggression that this court must uphold the rule against non-recognition.
GR2 (Government): And there is no room for attenuation over time in relation to this particular rule and no room for pragmatism.
GR2 (Government): That is clear from the preamble to the European Convention itself, which speaks of the importance of a zone of freedom, of democracy and the rule of law.
GR2 (Government): So we suggest that the idea that the court has ruled against non-recognition in Demopolis is simply wrong.
GR2 (Government): As we pointed out in our written pleadings, the reasoning in Demopolis and the other cases turns upon the obligation in individual cases, not state-to-state cases, but individual cases where there is the possibility of correcting wrongs imputable to Turkey within TRNC, those opportunities should be taken by individuals.
GR2 (Government): But that principle can't extrapolate out and deny Cyprus the right to protest, as it does about the occupation of the land, that it is a sovereign state.
GR2 (Government): So this is not a case where we say Article 2 trumps non-recognition.
GR2 (Government): That principle of non-recognition, certainly in cases of state aggression, is equally fundamental.
GR2 (Government): It should be valued more highly, potentially, as a protection against individuals' right to life than possibly Article 2 itself.
GR2 (Government): And there's no vacuum created by this insistence by the Republic of Cyprus.
GR2 (Government): Any vacuum is created by the fact that Turkey continues to unlawfully occupy the north by force of arms.
GR2 (Government): So Mr. Rees' fire example,
GR2 (Government): a fire raging on the Green ceasefire line, the Republic of Cyprus accepts its obligation is to put that fire out.
GR2 (Government): The only reason it can't is because troops, unlawfully present from a third state, are preventing it carrying out its sovereign rights to protect its land.
GR2 (Government): So although it is said this is not a case where recognition is going to take place, the reality is that everything that is said on behalf of TRNC and the applicants that suggests that the TRNC has citizens or laws or territory involve a claim to recognition.
GR2 (Government): And indeed, the court may look at the facts found by the third section and conclude the claim that there was some desire to try people in the north or in Turkey was mere posturing.
GR2 (Government): The full evidential file was provided to Turkey upon this case being admitted in 2009, and no steps have been taken to hold a trial either in TRNC or in Turkey.
GR2 (Government): So it is possible that what the court is looking at is merely an attempt to seek political advantage from the situation without any concern for the principles of justice.
GR2 (Government): We are not claiming to derogate from Article 2.
GR2 (Government): We are simply asserting that the procedural obligation does not require an act in breach of the principles that underpin the ILC articles and the rules against aggression and state occupation.
GR2 (Government): The finding of bad faith is, we suggest, entirely unjustified.
GR2 (Government): The obligation is merely to take such measures that are in our power to take in accordance with international law.
GR2 (Government): Cyprus has consistently sought to reassert control over the north that would solve the problem that comes before the court.
GR2 (Government): It has had the assistance of the international community in doing so.
GR2 (Government): It has requested the return of the suspects from the north for trial.
GR2 (Government): It is not indifferent.
GR2 (Government): It is and continues to be concerned to secure the return of the suspects.
GR2 (Government): It has used the lawful means at its disposal.
GR2 (Government): The failure to secure the result of return is not a breach of a procedural obligation, which, as the court knows, is a means and not results.
GR2 (Government): So the passage of time since the events of 1974 should not dull the court's view of the true status of Turkey in the north of the island of Cyprus, nor should it obscure the importance of not lending legitimacy to TRNC's claims to have criminal jurisdiction over citizens.
GR2 (Government): Turkey should cease its unlawful occupation, and in the respectful submission of the Republic of Cyprus, nothing in the proceedings that have gone on to try and secure a peaceful resolution have the effect of diluting the principle of non-recognition, either to vanishing point, as was suggested by the applicants, or as was suggested by Turkey.
GR2 (Government): Cyprus has no obligation to cooperate with Turkey.
GR2 (Government): It may choose to waive its rights, but it has no obligation to do so.
GR2 (Government): I therefore propose to address briefly a second question, which we suggest does not arise in this case, but it is whether and when there may be an obligation to cooperate with states who are not aggressors.
GR2 (Government): Even in such a case, we would suggest that Article 2 does not place an obligation on the original state of jurisdiction to cooperate with a third-party state, particularly not where there is no legitimate claim in the third state's jurisdiction, or its claim violates the principle of subsidiarity.
GR2 (Government): So this is not a case where there is any legitimate, concurrent criminal jurisdiction of the sort dealt with in various European instruments on transfer of proceedings and on settlement of conflicts on the exercise of jurisdiction and the Eurojust guidelines.
GR2 (Government): But even if one looks at those European instruments, all of them confirm that a prosecution in a third state must always be subsidiary in application and should only be exercised if the state having original jurisdiction is unable to exercise it or waives its right to do so.
GR2 (Government): And similarly, in relation to the mutual legal assistant text, the European evidence warrants and other European instruments, again, where a crime is committed on the territory of a state that is subject to a request, it is always an optional ground for refusal for that state to say, no, we have primary jurisdiction.
GR2 (Government): This was a crime committed on our territory, and under all of the European instruments, that is regarded as an acceptable reason for declining to transfer evidence and insisting upon trial on the territory where the crime was committed.
GR2 (Government): We should say that we do accept that there is an obligation on third states to cooperate with an original state of jurisdiction.
GR2 (Government): There may obviously always need to be some margin of appreciation in that one-way cooperation obligation, for example, where the trial's impossible in the original state for humanitarian or asylum reasons, such as Shemaef, or where there's a policy reason, such as non-extradition of nationals, so that a trial outside the original jurisdiction can proceed.
GR2 (Government): But otherwise, there will be a one-way cooperation obligation owed by the third state to the original state.
GR2 (Government): And then that will obviously then be subject to the typical restrictions on mutual assistance or extradition, nae bis in idem, and all those other principles.
GR2 (Government): But there is an obligation subject to the normal protections that are built into the European instrument and treaty obligations.
GR2 (Government): So it's not appropriate to argue, as Turkey does, that the only cooperation obligation is that established by domestic law.
GR2 (Government): There's no reason in principle why a state should not be required to legislate ad hoc for cooperation where it's necessary in the interest of justice.
GR2 (Government): Many states do.
GR2 (Government): They provide a domestic mechanism that can be used for any state, even one without a treaty relationship, in order to secure evidence or extradition.
GR2 (Government): So we do not accept the proposition either that there has to be a formal bilateral or multilateral treaty obligation.
GR2 (Government): The procedural obligation under Article 2 can be read as requiring ad hoc cooperation.
GR2 (Government): And indeed, on one view, Article 2 is the treaty obligation requiring ad hoc.
GR2 (Government): The alternative would be to leave people who carry out crimes in Cyprus a safe haven in the north of the island where they can operate with impunity.
GR2 (Government): So it is the submission of the Republic of Cyprus that Turkey, as the occupying power, could and should comply with its procedural obligation in any case in the TRNC, where there's a murder that's taken place in the north and a compliant investigation can take place there.
GR2 (Government): If it is an obstacle to that process that extradition is not provided or available, that is caused by the illegal occupation, not by anything done by the Republic of Cyprus.
GR2 (Government): And certainly in terms of Turkey's claim that there was no jurisdiction to find against it under Article 2, that is very hard to understand, where, according to Turkey, proceedings have begun in the TRNC.
GR2 (Government): The assertion of a right to investigate and prosecute in the TRNC must give rise to a sufficient jurisdictional link for the purpose of Article 2 under the Markovits principles.
GR2 (Government): The fact that Turkey doesn't mention the fact that the suspected perpetrators of these crimes are, in fact, either in the area in the north of Cyprus under its control or in Turkey itself shows the clarity of the jurisdictional link and the poverty of the explanation as to why the Article 2 obligations on Turkey have not been complied with.
GR2 (Government): In any event, as Mr Reza has said, Turkey has a jurisdictional link by reason of the Al-Skaini principles.
GR2 (Government): That does not give it primary jurisdiction, as the court knows, which belongs to the Republic of Cyprus, but it does mean that it may be required to cooperate with the Republic.
GR2 (Government): It also means there is a relevant jurisdictional link to Turkey requiring it to comply with the investigative obligation under Article 2.
GR2 (Government): So the reliance that's placed on the admissibility decision in W and the UK is misplaced, because in W and the UK, the concern with protective measures prior to the crime being committed was the area of inquiry, whereas here it is the sufficiency of the investigation which is under consideration.
GR2 (Government): And as was decided in Loizetu, it is clear that under the Al-Skaini jurisdiction, Turkey, as the occupier, is banned by the Article 2 investigative obligation.
GR2 (Government): Otherwise, there would be a vacuum.
GR2 (Government): So if the court in Ranseth is read as saying that the obligation of cooperation only arises in a second state or third state because of special features, there are here two very special features.
GR2 (Government): Firstly, the fact that Turkey occupies Cypriot territory and has obstructed quite deliberately Cyprus's investigation and request to have the suspects returned for trial.
GR2 (Government): And secondly, that Turkey knows those suspects are within its jurisdiction.
GR2 (Government): I should deal briefly with the idea that Turkey was not sent a request for extradition.
GR2 (Government): That ignores the facts as found by the third section.
GR2 (Government): Firstly, a red notice was diffused via Interpol by the Republic of Cyprus.
GR2 (Government): Secondly, an application for extradition was delivered formally from the Cypriot embassy in Athens to the Turkish embassy.
GR2 (Government): And although Turkey claims the right not to extradite its citizens, it has not even responded to the request for extradition.
GR2 (Government): It has not gone through the process.
GR2 (Government): It has not even applied its own laws.
GR2 (Government): It has simply returned the request without responding to it, as it's obliged to do under the European Convention on Extradition.
GR2 (Government): So the reference to Djibouti and France, we suggest, is just a cynical attempt to deflect attention from the fact that Turkey is simply unwilling to cooperate with any request for extradition and unwilling to hold a trial.
GR2 (Government): I turn, finally, to a very short theoretical question whether, if there were concurrent criminal jurisdiction, Cyprus would have a discretion to decline cooperation.
GR2 (Government): In our submission, it would have such a discretion, particularly as a trial in the TRNC risks further violations of Article 2 and can only produce results incompatible with the convention, comparable to the Mitrovic and Serbia position.
GR2 (Government): And indeed, as the court will know, there is no domestic legal framework in the TRNC which would satisfy the Article 6 obligation.
GR2 (Government): There's no gap because Cyprus remains able and willing to prosecute these suspects.
GR2 (Government): And in our submission, it is obvious that the only place capable of delivering an Article 2 compliant trial is the Republic of Cyprus.
GR2 (Government): So it's not a question of the court deciding where a trial should take place.
GR2 (Government): None of the European instruments that exist in relation to extradition or mutual assistance would require the provision of evidence to the TRNC.
GR2 (Government): The focus, as the court knows, is on the means rather than the result. And the Republic of Cyprus
GR2 (Government): says it has taken all lawful means at its disposal to preserve the rule of law and has only failed because of the unlawful occupation of its territory by another state.
GR2 (Government): Thank you for your time.
Guido Raimondi (JudgeP): Thank you very much, Mrs. Montgomery.
Guido Raimondi (JudgeP): And I call Mr. Talmon, please.
GR1 (Government): it is an honor to appear once again before you and to do so on behalf of the Republic of Turkey.
GR1 (Government): Before addressing the central issue in this case, let me make one preliminary remark.
GR1 (Government): Despite of what you have heard from the other respondent this morning, this case is not about the events of 1974 or the political situation on the island of Cyprus or the legal status and recognition of the Turkish Republic of Northern Cyprus.
GR1 (Government): This case is about whether the two respondents in this case have fulfilled their obligations under the procedural limb of Article 2 of the Convention.
GR1 (Government): Mr. President, as concerns Turkey,
GR1 (Government): the central issue in this case is whether a state to whose territory or area of control a murder suspect has fled is under an obligation to investigate a murder occurring in another state, to cooperate with the investigation of the authorities of the state where the murder has occurred, and to extradite the murder suspect to the state where the murder has occurred.
GR1 (Government): These questions are not unique to the situation in Cyprus, but may arise in any cross-border murder case where the suspect flees to another country.
GR1 (Government): This case, thus, has wide-ranging repercussions for all parties to the Convention.
GR1 (Government): If the chamber were correct and there were, in fact, such a procedural obligation, the next of kin of murder victims who are dissatisfied with an investigation, the lack or level of cooperation, or the non-extradition of a murder suspect could bring a case for violation of Article 2 against any of the 47 member states of the Council of Europe to which a suspect has fled.
GR1 (Government): Mr. President, in the judgment you
GR1 (Government): are asked to review today, the chamber found that the respondents have a procedural obligation to investigate of their own motion murders taking place in other states and to cooperate with the investigation of these states.
GR1 (Government): And I quote, where there are cross-border elements to an incident of unlawful violence leading to the loss of life, or where the investigation of the unlawful killing unavoidably implicates more than one state.
GR1 (Government): The wording employed by the chamber is as wide as it is vague.
GR1 (Government): For example, numerous states may be implicated in a cross-border murder investigation.
GR1 (Government): The state where the murder was planned, the state where the murder weapon was acquired, the state or states where the murder suspect or the accomplices fled to, and in the case of contract murders, even the state where the principle was based.
GR1 (Government): Mr. President, all these states are supposedly
GR1 (Government): under an obligation to investigate a murder taking place outside their own territory and to cooperate with the murder investigation of foreign police and judicial authorities.
GR1 (Government): This clearly cannot be the case.
GR1 (Government): The chamber did not provide any legal basis in the convention for such a wide-ranging obligation.
GR1 (Government): All the chamber offered were six common places and result-oriented arguments.
GR1 (Government): Thus, the chamber stated, I quote, the fundamental importance of Article II requires an obligation to investigate.
GR1 (Government): Otherwise, those indulging in cross-border attacks would be able to operate with impunity.
GR1 (Government): A duty to cooperate was in keeping with the effective protection of the right to life.
GR1 (Government): The duty to cooperate was a corollary of the obligation to investigate.
GR1 (Government): Any other finding would severely diminish the purpose of the protection guaranteed by Article II.