GRAND CHAMBER
 
 
 
 
 
 
CASE OF GÜZELYURTLU AND OTHERS v. CYPRUS AND TURKEY
 
(Application no. 36925/07)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
 
 
29 January 2019
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Güzelyurtlu and Others v. Cyprus and Turkey,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Guido Raimondi, President,
 Angelika Nußberger,
 Linos-Alexandre Sicilianos,
 Ganna Yudkivska,
 Robert Spano,
 Vincent A. De Gaetano,
 Işıl Karakaş,
 Kristina Pardalos,
 André Potocki,
 Aleš Pejchal,
 Yonko Grozev,
 Gabriele Kucsko-Stadlmayer,
 Pauliine Koskelo,
 Georgios A. Serghides,
 Marko Bošnjak,
 Jolien Schukking,
 Lado Chanturia, judges,
and Roderick Liddell, Registrar,
Having deliberated in private on 28 March 2018 and on 7 November 2018,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 36925/07) against the Republic of Cyprus and the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Cypriot nationals of Turkish Cypriot origin, Mr Mehmet Güzelyurtlu (“the first applicant”), Ms Ayça Güzelyurtlu (“the second applicant”), Ms Deniz Erdinch (“the third applicant”), Ms Emine Akerson (“the fourth applicant”), Ms Fezile Kirralar (“the fifth applicant”), Mrs Meryem Özfirat (“the sixth applicant”) and Mr Muzaffer Özfirat, (“the seventh applicant”), on 16 August 2007. 2. The applicants were represented by Mr A. Riza QC, barrister-at-law, and Ms E. Meleagrou, solicitor, both practising in London. The Cypriot Government were represented by two successive Agents, first Mr P. Clerides and later Mr C. Clerides, Attorneys-General of the Republic of Cyprus. The Turkish Government were represented by their Agent. 3. The applicants complained under the substantive and procedural aspects of Article 2 of the Convention that the Cypriot and Turkish authorities, including the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”), had failed to conduct an effective investigation into the killing of their relatives, Elmas, Zerrin and Eylül Güzelyurtlu. Relying on Article 13 of the Convention, they complained of a lack of an effective remedy in respect of their Article 2 procedural complaint. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 May 2009 notice was given to the respondent Governments of the applicants’ complaints concerning the procedural aspect of Article 2, taken alone and in conjunction with Article 13. On 3 September 2009 the Centre for Advice on Individual Rights in Europe (the “AIRE” Centre) was granted leave to submit written comments as a third party (Article 36 § 2 of the Convention and Rule 44 § 3). 5. On 4 April 2017, a Chamber of that Section, composed of Helena Jäderblom, President, Branko Lubarda, Işıl Karakaş, Helen Keller, Pere Pastor Vilanova, Alena Poláčková, Georgios A. The Chamber found that no issue arose under the substantive limb of Article 2 and that the entirety of the applicants’ complaints related in substance to the procedural limb. The partly dissenting opinion of Judge Serghides and the partly dissenting opinion of Judge Pastor Vilanova were appended to the judgment. 6. On 22 June 2017 both respondent Governments requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 18 September 2017 the panel of the Grand Chamber granted that request. 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. On 18 December 2017 the Grand Chamber rejected the applicants’ objection to the participation of Judge Serghides in the proceedings before it. 8. The applicants and both Governments each filed further written observations (Rule 59 § 1) on the merits of the case. In addition, third-party comments were received from the AIRE Centre. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 March 2018 (Rule 59 § 3). There appeared before the Court:
(a)  for the Cypriot Government
Mr C. Clerides, Attorney-General of the Republic of 
  Cyprus,               Agent,
Mrs C. Montgomery QC, barrister-at-law Counsel,
Mrs J. Jones, barrister-at-law,
Mrs T. Christodoulidou, Counsel A of the Republic 
  of Cyprus,  Advisers;
 
(b)  for the Turkish Government 
Mr   S. Talmon, Professor of Law, University of Bonn, Counsel,
Mr   E. İşcan, Ambassador, Permanent Representative of 
         Turkey to the Council of Europe,
Mr   Z. M. Necatigil, Legal Adviser, Ministry of Foreign 
  Affairs of the “TRNC”,
Mrs  S. Karabacak, Legal Adviser, Presidency of the “TRNC”,  
Mr   A.M. Başçeri, Deputy Director General, Minister 
   Plenipotentiary, Ministry of Foreign Affairs of Turkey,
Mr    C. Öztaş, Deputy to the Permanent Representative 
   of Turkey to the Council of Europe,
Mrs  N. Ferit Vechi, Deputy to the Permanent Representative 
   of Turkey to the Council of Europe,
Mrs  D. Kalyoncu, Deputy to the Permanent Representative 
   of Turkey to the Council of Europe, 
Mrs  B. Bilen Soydan, Deputy to the Permanent Representative 
   of Turkey to the Council of Europe,
Mrs  M. Aksen, Legal Expert, Ministry of Foreign Affairs 
   of Turkey,                  Advisers;
(c)  for the applicants
Mr A. Riza QC, barrister-at-law, Counsel,
Mr C. Pascalides, solicitor of the Supreme Court, England 
       and Wales, and member of the Cyprus Bar, Adviser,
Mr M. Güzelyurtlu, 
Mrs A. Güzelyurtlu, 
Mrs E. Akerson,                          Applicants. The Court heard addresses by Mr Riza QC, Mrs Montgomery QC and Mr Talmon as well as their replies to questions put by Judges Sicilianos, Spano and Bošnjak. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The application concerns the effectiveness of the investigation into the murder, committed on 15 January 2005, of Elmas, Zerrin and Eylül Güzelyurtlu, all Cypriot nationals of Turkish Cypriot origin. 11. The applicants are relatives of the deceased. The first, second and third applicants are the children of Elmas and Zerrin Güzelyurtlu and the brother and sisters, respectively, of Eylül Güzelyurtlu. The fourth and fifth applicants are Zerrin Güzelyurtlu’s sisters, and the sixth and seventh applicants are her parents. 12. The first five applicants were born in 1978, 1976, 1980, 1962 and 1956 respectively. The sixth and seventh applicants were both born in 1933. The first, fifth, sixth and seventh applicants live in Cyprus, in the territory controlled by the “TRNC”. The second, third and fourth applicants live in the United Kingdom. A. The background facts and the murders of Elmas, Zerrin and Eylül Güzelyurtlu
13. Elmas Güzelyurtlu was a businessman and used to live with his wife Zerrin and daughter Eylül in the territory controlled by the “TRNC”. In 2000, following the collapse of the bank that Elmas Güzelyurtlu owned, he fled to and settled in Larnaca, in the Cypriot Government-controlled areas. His wife and daughter joined him in 2001. In 2003 they moved to the Ayios Dometios district of Nicosia (in the Cypriot Government-controlled area). 14. On 15 January 2005 at about 8 a.m. on the Nicosia-Larnaca motorway, near the Athiainou exit (in the Cypriot Government-controlled area), a police officer spotted a black Lexus car parked on the hard shoulder. The engine was running, the left turn indicator light was flashing and the door of the front passenger seat was open. 15. Zerrin and Eylül Güzelyurtlu were found dead on the back seat of the car. Elmas Güzelyurtlu was lying dead at a distance of 1.5 metres from the car in a nearby ditch. All three were in pyjamas and slippers. Zerrin Güzelyurtlu had adhesive tape on her neck and two rolls of adhesive tape in her hands. Both Zerrin Güzelyurtlu and Eylül Güzelyurtlu had redness (ερυθρότητα) on the edges of their hands, which indicated that they had been tied with adhesive tape. They also had bruises on their shins which had been sustained in a struggle. B. The investigation and the measures taken by the Cypriot authorities, including the cooperation requests made to the Turkish authorities
16. On 15 January 2005 the police officer who discovered the bodies informed Nicosia police headquarters. A number of police officers (some of them high-ranking), arrived at about 8.35 a.m. at the crime scene, which had already been secured and cordoned off. 17. A detailed on-the-spot investigation was immediately conducted by the police and a forensic pathologist. Photographs were taken and a video recording was made. Two bullets, two cartridge cases and a kitchen knife were found inside the car. A third cartridge case was found outside the car. 18. An investigation team consisting of eight officers was set up. 19. The car was taken away for further inspection. 20. The victims’ bodies were taken to the mortuary at Larnaca General Hospital for a post-mortem examination. After being informed by the Cypriot police of the death of his parents and sister, the first applicant went to Larnaca morgue to identify the victims. Death certificates were issued. 21. At about 9.25 a.m. officers went to the victims’ house in Ayios Dometios. The house was secured and cordoned off. A search was carried out by the investigation team and a forensic pathologist. The first applicant was present for part of the search. Photographs and fingerprints were taken and a video recording made at the scene. The investigation determined that the perpetrators of the murders had broken into the house through a window. A suction cup (βεντούζα) and pieces of adhesive tape were found outside the window. Adhesive tape was found in the victims’ bedrooms, the living room and the car park. The security system had been switched off at 4.35 a.m. on that day and one of the cameras appeared to have been turned upwards at 4.29 a.m. 22. Numerous exhibits were collected from the scene of the crime and the victims’ home. These were sent for forensic examination. 23. On 16 January 2005 post-mortem examinations were carried out by a forensic pathologist. It was determined that each of the three victims had died of severe craniocerebral injury caused by a shot from a firearm at close range and that their deaths had been the result of a criminal act. Photographs were taken and a video recording made of the post-mortem examinations. A diary of action/log book (ημερολόγιο ενέργειας) was kept by one of the police officers present during the post-mortem examinations, which recorded, inter alia, the actions and findings of the forensic pathologist. 24. On 17 January 2005 the first applicant took the victims’ bodies to the “TRNC”, where a funeral was later held. 25. The investigation included tracing and questioning numerous witnesses, including the victims’ relatives, searching the records of vehicles that had gone through the crossing points between north and south, and examining the security system of the victims’ house and computer hard drives for relevant material concerning the movements of persons and vehicles near the house at the material time. The source of the suction cup and the adhesive tape was determined to be a shop in Kyrenia (in northern Cyprus). 26. From the evidence collected it appeared that on 15 January 2005, between 5.15 a.m. and 5.20 am, three shots had been heard from the area in which the car and the victims were found. 27. According to the witness statements taken by the police, at the time the murders were committed a BMW car without number plates was seen parked behind the victims’ car. Four persons were seen standing around the cars and one person was seen in the passenger’s seat of the Lexus car. It was further ascertained that on 14 January 2005, at 11 p.m., a red BMW car with “TRNC” number plates had passed through the Pergamos crossing point located in the British Eastern Sovereign Base Area of Dhekelia but without passing through the Base Area’s checkpoint. At 5.45 a.m. the next day the same car had returned to the “TRNC” through the same crossing point  again without being checked. The driver of the car, who resided in the “TRNC”, had been accompanied by another person. 28. From the evidence gathered, it was determined that the victims had been kidnapped at 4.41 a.m. on 15 January 2005 and had been murdered between 5.15 and 5.20 a.m. 29. According to the relevant police reports, five vehicles and more than eight people were involved in the murder; a fact which pointed to a well-planned and premeditated crime. 30. A ballistics examination established that the bullets had been fired from the same handgun; two of the cartridge cases had been of Romanian manufacture and one of Turkish manufacture. 31. The initial investigation resulted in the identification of five suspects: M.C. (“the first suspect”), E.F. (“the second suspect”), F.M. (“the third suspect”), M.M. (“the fourth suspect”) and H.O. (“the fifth suspect”). The first, second, third and fourth suspects were Cypriot nationals and “TRNC” citizens according to the “TRNC” authorities. The fifth suspect was a Turkish national. 32. DNA belonging to the first, second and fourth suspects was found on exhibits taken from the crime scene and the victims’ house. DNA belonging to the first suspect was found on the steering wheel of Elmas Güzelyurtlu’s car. The police authorities already had DNA from these three suspects as they had taken genetic material from all of them in the past in connection with other offences (unlawful possession of a firearm and burglary). Moreover, the BMW car was found to be registered in the name of the fourth suspect and to have been driven by the first suspect. 33. Arrest warrants had already been issued in respect of these three suspects with regard to other offences; the first suspect was wanted in relation to a drugs case and for obtaining a passport and identity card issued by the Republic of Cyprus under false pretences; the second suspect was wanted for the unlawful possession and transfer of a firearm, and the fourth suspect was wanted for the unlawful possession of a firearm. 34. The other two suspects were linked to the murder through other evidence. DNA belonging to two unidentified persons was also found. 35. On 20 January 2005 the Larnaca District Court issued arrest warrants in respect of all five suspects on the ground that there was a reasonable suspicion that they had committed the offences of premeditated murder, conspiracy to murder, abducting (απαγωγή) a person in order to commit murder (sections 203, 204, 217 and 249 of the Criminal Code, Cap. 154), and the illegal transfer of a category B firearm (sections 4(1) and 51 of the Firearms and Other Arms Law (Law 113/(I)/2004, as amended)). 36. On 21 January 2005 the police authorities sent “stop list” messages to the immigration authorities (that is to say messages asking them to add the suspects to their “stop list” – a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring) and to notify the police should they attempt to leave the Republic. 37. On 23 January 2005 the police submitted “Red Notice” requests to Interpol, in order to locate the suspects and have them arrested with a view to their extradition. 38. On 26 January 2005 Red Notices were published by Interpol in respect of the first four suspects and on 28 January 2005 in respect of the fifth suspect. These sought the provisional arrest of the suspects and stated that extradition would be requested from any country with which the Republic of Cyprus was linked by a bilateral extradition treaty, an extradition convention or any another convention or treaty containing provisions on extradition. 39. As the police authorities were not able to trace the suspects in the areas controlled by the Republic, on 27 January 2005 they applied for the issuance of European arrest warrants. On the same day the Larnaca District Court issued European arrest warrants in respect of all five suspects. 40. On 23 and 28 January 2005 the Cypriot bureau of Interpol sent emails to the Turkish Ministry of Internal Affairs stating that the Cypriot police were searching for the first, second, third and fifth suspects with a view to their arrest and that they should be arrested if they entered Turkey. 41. As the investigation continued, another three suspects were identified: A.F. (“the sixth suspect”), S.Y. (“the seventh suspect”) and Z.E. (“the eighth suspect”). The sixth and eighth suspects were Cypriot nationals as well as citizens of the “TRNC” according to the “TRNC” authorities. The seventh suspect was a Turkish national. The sixth suspect had been wanted by the authorities since 2003 in respect of a case involving an assault causing serious bodily harm. The relevant case file had been classified as “otherwise disposed of” (Άλλως Διατεθείσα) in 2004. 42. On 4 February 2005 the Larnaca District Court issued arrest warrants for all three suspects on the same grounds as those issued in respect of the other suspects (see paragraph 35 above). 43. On 10 February 2005 the same court issued European arrest warrants for those suspects. 44. On 11 February 2005, at the request of the Cypriot authorities, Red Notices were published in respect of the three suspects. 45. On the same day an email was sent to the Turkish Ministry of Internal Affairs by the Cypriot bureau of Interpol informing it that the bureau had information that the fifth suspect was going to travel to Mersin in Turkey and requesting the Turkish authorities to take the necessary measures. 46. On 15 February 2005 the police authorities transmitted “stop list” messages to the immigration authorities (see paragraph 36 above). 47. The Cypriot Government submitted that as the investigation had progressed more evidence had been collected implicating the suspects. More than 180 statements had been taken from various persons, including the relatives of the victims, persons who knew or had connections with the victims, and persons involved in the investigation. The authorities had also carried out DNA tests on a number of other possible suspects but no link to the crime had been found. 48. The applicants’ representatives had meetings about the case with the Attorney-General (in January 2006 and July 2006). On 15 March 2006 the applicants, upon their request, were given a progress report by the Cypriot police. The applicants submitted that they had requested all the evidential material but this had not been provided with the report. 49. On 12 July 2006 the eighth suspect was arrested by Cypriot police in Limassol (in the Cypriot Government-controlled area). The next day he was remanded in custody for eight days by order of the Larnaca District Court on the ground that there was reasonable suspicion that he had committed offences under sections 203, 204, 217 and 249 of the Criminal Code (Cap. 154) and sections 4(1) and 51 of the Firearms and Other Arms Law (Law 113/(I)/2004, as amended). He was released, however, upon the expiry of the remand period as the authorities, after questioning him, did not have enough evidence to link him to the offences. According to the relevant police report, some of the allegations he had made could not be looked into as the Cypriot police could not conduct investigations in the “TRNC”. Furthermore, DNA tests did not link him to the crime. 50. In a letter dated 26 July 2006 the Attorney-General of Cyprus assured the applicants’ representatives that the Republic was “doing everything within its power – bearing in mind that it [did] not have effective control over the areas of the Republic occupied by Turkey (in which persons who might be involved [were to be found at that time]) and taking into account the relevant Convention case-law – to investigate the ... murder and bring the persons responsible to trial before the Courts of the Republic”. He also informed them that he would keep them informed of the progress of the investigation and reply to the queries that they had submitted on behalf of the victims’ family and that this could be achieved through meetings at his office between him, the applicants’ representatives and the police. 51. A report by the Larnaca police investigation department dated 1 July 2007 stated that the investigation had been extended to the British bases and the occupied areas of Kyrenia and Karavas. It also stated that the investigation was still ongoing as the authorities were waiting for replies from Interpol Ankara. The report also proposed that the officers in the investigation team be commended for their outstanding work on the case. 52. As the authorities were not able to execute the arrest warrants in the “TRNC” or undertake other steps through the United Nations Peacekeeping Force in Cyprus (“UNFICYP”, see below paragraph 106), and given that the issuance of international arrest warrants had not resulted in the suspects’ surrender by Turkey, the police officer in charge of the investigation suggested in a report dated 30 March 2008 that the case be “otherwise disposed of” (Άλλως Διατεθείσα) pending future developments. 53. On 7 April 2008 the case file was sent, along with the above-mentioned proposal by the Larnaca police investigation department, to the Attorney-General. The latter agreed with the Larnaca police investigation department’s proposal and on 24 April 2008 instructed the police to resubmit (εναποβληθεί) the investigation file if and when the arrest of all or any of the suspects was effected. 54. In a letter dated 25 June 2008 to the Chief of Police, the Attorney-General noted that, despite all efforts on the part of the authorities, the suspects had not been handed over to the Republic, that he had spoken to the President of the Republic and that he had had repeated meetings and telephone conversations with the applicants’ counsel. The Attorney-General noted that the latter had informed him of the applicants’ intention to lodge an application with the Court. The Attorney-General therefore considered that it was necessary – and counsel agreed – for international arrest warrants to be issued in respect of the suspects and that Turkey, which had, pursuant to the Court’s judgments, responsibility for whatever occurred in the occupied areas, should be requested to enforce them. He demanded that, if this had not been done already, international arrest warrants be issued as quickly as possible for the surrender (Παράδοση) of the suspects to the Republic of Cyprus. 55. On 3 August 2008 the fourth suspect was murdered in the “TRNC”. Following confirmation of his death by UNFICYP and pursuant to instructions by the Attorney-General, the arrest warrant in respect of him was cancelled by the Larnaca District Court on 29 August 2008. 56. On 6 August 2008 the Attorney-General gave instructions for the preparation of extradition requests to Turkey under the European Convention on Extradition of 13 December 1957, to which both States were parties (see paragraphs 144-45 below). 57. On 23 September 2008, extradition requests in respect of the six remaining suspects (the first, second, third, fifth, sixth and seventh suspects; see paragraphs 49 and 55 above), together with certified translations of all documents into Turkish, were transmitted by the Cypriot Ministry of Justice and Public Order to the Cypriot Ministry of Foreign Affairs for communication through diplomatic channels to Turkey’s Ministry of Justice. The requests were then sent to the Republic’s embassy in Athens for communication to Turkey. 58. By a letter dated 4 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date the extradition requests and a note verbale from the Cypriot Ministry of Justice and Public Order had been delivered to the Turkish embassy in Athens in a sealed envelope. The usher of the embassy had given the envelope to the embassy security guard. No receipt of delivery had been given. 59. By a letter dated 11 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date an employee of the Turkish embassy had left an envelope with the Cypriot embassy’s security guard on which only the address of the Cypriot embassy had been written and which had contained the extradition requests and the note verbale from the Cypriot Ministry of Justice and Public Order, which had been given to the Turkish embassy on 4 November 2008. The person had not stated his identity, but had simply left (παράτησε) the envelope and departed in haste. 60. By a letter dated 24 November 2008 the Director General of the Cypriot Ministry of Justice informed the Attorney-General of the return of all the above-mentioned documents and stated that it was clear that Turkey was refusing to receive requests for the extradition of fugitives made by Cyprus under the European Convention on Extradition, because of its refusal to recognise the Republic of Cyprus as a State. 61. In his reply dated 26 November 2008 the Attorney-General stated that the conduct of Turkey towards the Republic of Cyprus was not that expected of a State which had signed the European Convention on Extradition. It was not, however, for the Office of the Attorney-General to decide on the measures to be taken but it was an issue to be taken up on a political level, by the Cypriot Ministry of Foreign Affairs in particular. 62. The Cypriot Government submitted that the domestic arrest warrants were still in force and would remain in force until executed pursuant to section 21 (1) of the Criminal Procedure Law. C. The investigation and measures taken by the Turkish, including the “TRNC”, authorities
63. On 17 January 2005 the victims’ bodies were taken to the Dr. Burhan Nalbantoğlu State Hospital in Nicosia (“Lefkoşa”) for postmortem examinations. The “TRNC” police were provided with the death certificates, which had been issued by the Republic of Cyprus. 64. Given that the cause of death required that a coroner’s inquest be held, the “TRNC” police sought a court order for post-mortem examinations. 65. Following a hearing before the “TRNC” Nicosia District Court, the “TRNC” Attorney-General’s office requested the court to waive the requirement for post-mortem examinations, as post-mortem examinations had already been carried out in the Republic of Cyprus. Having heard evidence from two police officers and the hospital’s forensic pathologist the court decided that post-mortem examinations were not required. 66. On 18 January 2005 the first applicant gave a statement to the “TRNC” police. His views were requested concerning potential suspects. In his statement he alleged that there were five likely suspects: M.C, E.F., F.M., M.M. and H.O. (see paragraph 31 above). The “TRNC” authorities checked the entry and exit records of the suspects and established that the first suspect had crossed to the Republic of Cyprus side on the night of the murders and had returned to the “TRNC” side in the early hours of the morning. There was no record of the entry and exit of the other suspects on that day. 67. On 18 January 2005 the first suspect was taken to Kyrenia (“Girne”) police headquarters (Polis Genel Müdürlüǧü) for questioning by the “TRNC” police. The BMW car he had used to cross the border was seized as evidence. The Kyrenia District Court issued a summons on the same day in respect of both the first and second suspects for the purpose of bringing them before the court on suspicion of theft, vehicle importation and forgery of documents (Hirsizlik Araç Ithali ve Evrak Sahteleme). The first suspect was kept in detention. 68. The first suspect’s BMW car was inspected, but no evidence was found. 69. On the same day (that is to say 18 January 2005) the third and fourth suspects were also taken for questioning by police. An arrest warrant was issued in respect of the third and fourth suspects by the Morphou (“Güzelyurt”) District Court on the same day on suspicion of forgery of documents – specifically, providing falsified documents and statements for a falsely registered vehicle (Sahte Belge Düzenleme – Yalan Belge ve Beyanlarla Sahte Kayitla Araç Temin Etme). 70. On 19 January 2005 an arrest warrant was issued in respect of the first and second suspects by the Kyrenia District Court for two days (Mahkeme: Zanlilarin 2 gün tutuklu kalmasina emir venir) on suspicion of theft, forgery of documents and “providing fake registration records, etc.” (Hirsizlik, Sahte Belge Düzenlemek, Sahte Kayut Temin Etmek v.s.). 71. The second suspect was arrested the next day and was detained at Lapithos (“Lapta”) police headquarters. 72. On 19 January 2005 the “TRNC” Nicosia District Court also remanded the third and fourth suspects in custody for two days on suspicion of theft and forgery of documents. 73. The “TRNC” police searched the houses of the first four suspects, as well as that of another person, on the basis of search warrants issued by the Morphou District Court on 18 January 2005 (in respect of the third and fourth suspects) and by the Kyrenia District Court on 19 January 2005 (in respect of the first and second suspects). No evidence was found. 74. Statements were taken from the four suspects while they were in detention. They all denied involvement in the murders. The “TRNC” police also took statements from a number of other persons, including public servants, mainly in relation to the BMW car that the first applicant had alleged had been used by the murderers. According to the evidence collected, the BMW car had been transferred to the first suspect on 17 May 2004. 75. On 21 January 2005, following an application by the “TRNC” police, the “TRNC” Nicosia District Court remanded the first four suspects in custody for a further three days on suspicion of premeditated murder. 76. On 22 January 2005 the “TRNC” Nicosia District Court issued a summons in respect of the fifth suspect for the purpose of bringing him before the court on suspicion of premeditated murder. “TRNC” Nicosia police headquarters informed all other district police offices that they were searching for this suspect and that a warrant had been issued. 77. On different dates statements were taken from a number of persons, including the first applicant, with a view to obtaining information concerning the fifth suspect. 78. On 23 January 2005 the fifth suspect was arrested. 79. On 24 January 2005 the first four suspects were remanded in custody for another three days by the “TRNC” Nicosia District Court on suspicion of premeditated murder, murder, and possession of an illegal firearm and explosives (Taamüden Adam Öldürme, Adam Öldürme, Kanunsuz Ateşli Silah ve Patlayici Madde Tasarrufu). An arrest warrant was also issued by that court in respect of the fifth suspect in order that he might be remanded in custody for three days. 80. On 25 January 2005 “TRNC” Nicosia police headquarters were informed by the Turkish Ministry of Internal Affairs that a Red Notice had been published by Interpol in relation to the first four suspects. That Ministry requested confirmation of Elmas Güzelyurtlu’s death as the Turkish authorities had been looking for him in order to extradite him to the “TRNC”. They also enquired about the nationality status of the first four suspects, and in particular whether or not they had Turkish nationality. 81. On 27 January 2005 the first, second, third, fourth and fifth suspects were remanded in custody for another five days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 82. On the same day the “TRNC” Nicosia District Court issued a warrant in respect of the sixth and seventh suspects (see paragraph 41 above) for the purpose of bringing them before the court on suspicion of premeditated murder. Search warrants were also issued by the Kyrenia District Court in respect of the house of the fifth suspect and by the Nicosia District Court in respect of the houses of the sixth and seventh suspects. 83. On 28 January 2005 the “TRNC” Nicosia District Court remanded the sixth, seventh and eighth suspects (see paragraph 41 above) in custody for three days on suspicion of premeditated murder. It also issued a search warrant for the house of the eighth suspect. 84. On the same date the “TRNC” police also took a statement from the fifth suspect. 85. On 31 January 2005 the sixth, seventh and eighth suspects’ detention was extended by a further eight days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 86. On the same day “TRNC” Nicosia police headquarters requested further information from the Turkish Ministry of Internal Affairs about the criminal record of the fifth suspect. They were provided with his criminal record, photograph and fingerprints on 7 February 2005. 87. On 1 February 2005 the “TRNC” Nicosia District Court extended the first five suspects’ detention for seven more days on suspicion of premeditated murder. 88. On 2 February 2005 “TRNC” Nicosia police headquarters published a notice to all branches of police informing them that they were also looking for another person, M.K., whom they also considered to be a suspect in the case. It transpired that this suspect had left for Turkey on 19 January 2005. 89. On 7 February 2005 “TRNC” Nicosia police headquarters requested the Turkish Ministry of Internal Affairs to carry out a criminal record check on M.K. and to inform them whether or not he was in Turkey. 90. On 8 February 2005 the “TRNC” police took statements from the first, second, third, fifth, sixth and eighth suspects. An additional statement was taken on 11 February 2005 from the fifth suspect. They all denied involvement in the murders. 91. On or around 11 February 2005 all the suspects were released due to a lack of evidence connecting them to the crime. 92. On 11 February 2005, following an email sent to the Turkish Ministry of Internal Affairs by the Cypriot bureau of Interpol (see paragraph 45 above), the fifth suspect was arrested as he was entering Mersin. 93. On 14 February 2005 a message was sent by Interpol Ankara to Interpol Athens in response to the Red Notice in respect of the fifth suspect. This message stated that the fifth suspect was in police custody and that the Turkish Ministry of Justice had been informed of the crime that he had allegedly committed. They also noted that under the Turkish Criminal Code, a Turkish national who had committed a crime in a foreign country which was punishable with at least three years’ imprisonment under Turkish law could be punished under Turkish law. Furthermore, pursuant to domestic law, it was not possible to extradite a Turkish citizen from Turkey. Consequently, the Ministry of Justice wanted to know if it was possible for the investigation documents to be sent to them via Interpol channels. 94. On 15 February 2005 the fifth suspect was taken to the office of the Mersin public prosecutor, where a preliminary file was opened in respect of the murders and he was questioned by the public prosecutor. The Turkish Government submitted that he had been released in the absence of any evidence connecting him to the crime in question and in the absence of an extradition request. 95. M.K. (see paragraph 88 above) was also traced and on 25 March 2005 he was questioned by police at Kyrenia police headquarters. He denied any involvement in the murders. 96. On 15 April 2006 the authorities investigated a well in the village of Myrtou (“Çamlibel”) in the Kyrenia district for evidence. Nothing, however, was found. 97. Throughout the investigation the “TRNC” police questioned and took statements from numerous persons who knew or were somehow connected or related to the suspects. As can be seen from a document in the internal police files entitled “Time/Work Sheet” (İs Cetveli) and the copies of the statements provided, statements were taken from various witnesses, and also from the suspects. They also searched for evidence and took fingerprints. 98. According to a note/direction in the “Time/Work Sheet”, on 30 January 2006 the “TRNC” Police Chief Inspector (Başmüfettiş - Tahkikat Memuru) wrote to the “TRNC” Nicosia Judicial Police Director –Assistant Police Director (Polis Müdürü Müavini – Adli Polis Müdürü) that upon the oral instructions of the “TRNC” Attorney-General (Başsavcı) a copy of the file in respect of the murder of Elmas, Zerrin and Eylül Güzelyurtlu had been prepared and would be submitted for the opinion of the “TRNC” Attorney-General. A note bearing the same date from the “TRNC” Nicosia Judicial Police Director informed the “TRNC” Attorney-General’s Office that the file regarding the case was ready and had been submitted to the “TRNC” Attorney-General. 99. The Turkish Government submitted that, following a report by the “TRNC” Police Chief Inspector, the case had been classified as “unresolved”. They provided a copy of this report, which was not dated. According to this report, the last action undertaken as part of the investigation appears to have occurred on 22 March 2007, when the fifth suspect’s car, which had been inspected by the “TRNC” police, had been handed over to the “TRNC” Nicosia Customs and Tax Office (Lefkoşa Gümrük ve Rüsumat Dairesi). The inspection had not resulted in the collection of any evidence concerning the crime. In his report the “TRNC” Police Chief Inspector concluded that, on the basis of the investigation that the police had conducted from the date of the murders until the time when he wrote the report, the police had not been able to resolve the case. He therefore suggested that the case be logged as “unresolved for the time being”. 100. On 19 August 2009 the “TRNC” Attorney-General’s office sent a copy of the case file to the “TRNC” Ministry of Foreign Affairs. They informed the latter that the case had been classified as “unresolved for the time being” on the instructions of the previous “TRNC” Attorney-General. 101. The Turkish Government submitted that the case file was with the “TRNC” Attorney-General and remained open pending the submission of evidence by the Republic of Cyprus authorities. 102. The Turkish Government submitted that after they had received the investigation file from the Cypriot Government through the Court, having been given notice of the present case, the “TRNC” police had again questioned the first and second suspects on 24 February 2010. The suspects had denied their involvement in the killings. 103. Subsequently, in other proceedings, on 31 August 2010 the Kyrenia Assize Court found the first and second suspects guilty of, inter alia, the murder of the first applicant’s bodyguard and passed sentences amounting to thirty years’ imprisonment each. An appeal by the first and second suspects was dismissed by the “TRNC” Supreme Court on 4 January 2012. They are both currently serving their sentences. 104. The Turkish Government submitted that, in the context of those proceedings, the first suspect had written on a piece of paper that the second suspect had killed three people. In addition, after being cautioned by the Kyrenia Assize Court that if he made a self-incriminating statement under oath it could be used against him, the second suspect stated: “I saw this Güzelyurtlu incident personally myself. This is what I want to say. There is also one thing, that is what he told me, ... I did not see it, it is what he explained to me. At this stage, I do not want to talk about the Güzelyurtlu murder, your honour”. In its judgment the Kyrenia Assize Court noted that it had to examine the voluntary statements made before it more carefully in the light of the fact that the first suspect had retracted the statements and submitted different statements. The first suspect did not give any further statement to the police. 105. Following the above-mentioned development, the “TRNC” Attorney-General reviewed the investigation file. Taking into account the rules of evidence, he concluded that even if the first suspect had not retracted his statement, in the absence of other evidence, this statement would not have been sufficient for any charges against the suspects to be brought. D. Cooperation attempts through the United Nations
106. Following the murders the Cypriot Government, the “TRNC” and the applicants were in contact with UNFICYP about the case. A number of meetings were held and there was also an exchange of telephone calls and correspondence. The meetings were held between UNFICYP and either the Cypriot police or the “TRNC” police and authorities, including the “TRNC” Prime Minister and Deputy Prime Minister. It appears from the file that the only meeting where both sides were involved was the one held on 24 January 2005 between the private secretary of the “TRNC” Prime Minister, UNFICYP’s Senior Police Adviser and Commander (“the SPA”), the head of UNFICYP’s civil affairs unit, and the envoy of the President of the Republic of Cyprus. Between 2005 and 2006, an exchange of correspondence concerning the investigation into the murders took place between the applicants’ representatives and UNFICYP officials. 1. Information submitted by the parties
(a)  Internal note dated 20 January 2005 (Cyprus)
107. According to this note submitted by the Cypriot Government, the Cypriot authorities made contact with UNFICYP’s Special Representative (“SR”) to see whether UNFICYP could assist. They informed UNFICYP that they intended to carry out a complete investigation into the crime and that the police were working intensively to gather information and evidence. Some of this, however, would have to be collected from the occupied areas. UNFICYP’s SR said that UNFICYP was ready to provide help but suggested, acknowledging the difficulties, that it might be better for the two sides to be in direct contact with each other and to exchange information. The Cypriot authorities had informed him that this was not possible as the Cypriot police could not have direct contact with the “TRNC” police and that it was for this reason they had sought UNFICYP’s intervention. (b)  Internal note by the Cypriot police dated 21 January 2005
108. According to this note, a meeting was held on that day at UNFICYP headquarters in Nicosia on the initiative of the SPA between the SPA and the assistant of the Cypriot Chief of Police. The SPA stated that she had had, on the same day, a long meeting concerning the murders with the “TRNC” Attorney-General. She had informed the “TRNC” Chief of Police that the Cypriot police had in their possession genetic material linking three of the suspects to the crime (although she was not in a position at that time to tell them who these suspects were), as well as other evidence linking another two persons to the crime, and that one of the cartridges found at the scene had been made in Turkey. She had also informed him that five arrest warrants had been issued by a Cypriot court against the suspects, four of whom were detained in “TRNC” prisons. She had expressed her concerns that if the suspects were released they might leave the “TRNC” and their future arrest would not be possible. The “TRNC” Chief of Police had informed her that these suspects had been detained for minor offences (car theft) and that it was possible that their detention would not be extended by the judge. Although the “TRNC” authorities would try to have their detention extended, they had no evidence to charge them with murder. Although the suspects had already been questioned about the murders and had given some information, this was not enough. No voluntary statements had been made. The “TRNC” Chief of Police had also told her that he was aware that the Cypriot police did not have enough evidence and that only if the two police forces cooperated could more evidence be collected. He had also asked her if, and how, UNFICYP could help; she had informed him that UNFICYP could only intervene if one of the two sides made an official request for assistance. 109. The “TRNC” Chief of Police had expressed his concerns in respect of the problems that had arisen and might also arise in the future and considered it advisable that the two police forces come to an agreement to enable cooperation in such cases. The “TRNC” Minister of Foreign Affairs was ready to discuss matters of policing and public safety with the Minister of Foreign Affairs of Cyprus and other members of the Cypriot police in order to facilitate cooperation without any political ramifications (προεκτάσεις). 110. UNFICYP’s liaison officer had asked if there was a possibility that Turkey could be involved, so that the suspects could be extradited to Turkey and from there to the Republic of Cyprus. The “TRNC” Chief of Police had answered in the negative; it appeared that the “TRNC” authorities had already examined the matter but could not take such action as it was not provided for by their legislation. The “TRNC” Chief of Police had suggested that the Cypriot police hand over the evidence to the “TRNC” police so that the latter could arrest and try the suspects. If the Cypriot police informed their authorities officially about the evidence and exhibits in respect of the case and officially requested the extradition of the suspects, the “TRNC” authorities could cooperate and possibly extradite them. One of the suspects was in Turkey but appeared not to be connected to the murders. The “TRNC” authorities also had information in their possession linking other persons to the murders. 111. According to the SPA the “TRNC” authorities were sincere and wished to cooperate. They had mentioned, inter alia, their concerns that there could be more crimes of this nature – that is to say criminals going through crossing points, committing crimes and then returning to the other side in order to avoid arrest and punishment. UNFICYP was ready to provide advice as to how the Cypriot Government should act and to sit in any negotiations in order to see how UNFICYP could intervene so as to help investigate (εξιχνιαστει) the murders. The SPA had asked the Cypriot authorities whether Interpol could intervene as she considered it unfair that, although the perpetrators of an atrocious crime had been identified, they remained free because of a political problem. The “TRNC” police had requested to be kept informed by the United Nations (UN) of developments in the case and she had promised that they would be. (c)  From the minutes of a meeting on 24 January 2005 (Turkey)
112. On 24 January 2005 a meeting was held between the private secretary of the “TRNC” Prime Minister, the SPA, the head of UNFICYP’s civil affairs unit, and the envoy of the President of the Republic of Cyprus. According to the minutes of the meeting, the “TRNC” authorities needed the results of the DNA tests that been carried out by the Cypriot authorities, which were reluctant to transmit them on the pretext that this would constitute recognition of the “TRNC”. The “TRNC” authorities suggested that these could be transmitted through UNFICYP. A non-paper dated 24 January was given to the envoy. It stated as follows:
“According to the Constitution of Cyprus (article 159), any case confined among Turkish Cypriots should be taken by the Turkish Cypriot courts. In the case of murder of Elmas Güzelyurtlu and his family, all the suspects are Turkish Cypriots hence the case should be heard by Turkish Cypriot courts by Turkish Cypriot judges. Since the act took place in Greek Cypriot side and all of the evidences collected successfully by the Greek Cypriot police, cooperation is needed for the justice to be done. This is an urgent situation therefore we need to act together immediately. As a first step the report concerning the DNA analysis is needed to get the court order to have the suspects in custody during the lawsuit. This is a humanitarian issue and totally out of political concerns. The political concerns should not be in the way to prevent the justice to take place.”
(d)  Letter dated 24 January 2005 from the Diplomatic Office of the President of the Republic of Cyprus to the SPA
113. This letter reaffirmed the Cypriot Government’s determination to bring the suspects to justice. The Cypriot authorities had collected sufficient evidence and requested UNFICYP to facilitate the handing-over of the suspects and evidential material to the Cypriot authorities. It stated that the Cypriot police had issued international arrest warrants in respect of four of the suspects, which had been forwarded to Interpol’s General Secretariat and to all of Interpol’s member States. The Cypriot police were in the process of issuing an international arrest warrant in respect of the fifth suspect. (e)  Internal note dated 25 January 2005 (Cyprus)
114. This note stated that the “TRNC” Attorney-General had notified UNFICYP that he did not intend to hand over to the Cypriot police the three suspects who were detained in the “TRNC” for the murders. He said that there was no legal or constitutional basis for handing over the accused to Cyprus, relying inter alia on the 1960 Constitution of Cyprus (Article 159(2)). The “TRNC’ Attorney-General had notified UNFICYP of this position. (f)  Police note dated 25 January 2005 (Cyprus)
115. This note stated that the SPA had met the police at Nicosia police headquarters after she had met the “TRNC” Chief of Police on the same day. The latter had suggested that a meeting be organised with the Cypriot police, in secret, on neutral territory chosen by UNFICYP, so that the issue would not become the object of political manipulation. The “TRNC” Attorney-General had consented to such a meeting. According to the “TRNC” Chief of Police, there might be more suspects and the first applicant had given inaccurate information to the Cypriot police, including the wrong photo of the alleged fifth suspect. As a first step, the “TRNC” Chief of Police had suggested the participation in the investigation of an equal number of officers of the same grade from both sides and the presentation of all exhibits collected which could help solve the crime, such as photographs and fingerprints of the suspects and samples of genetic material. He had also mentioned that in order to ensure the continued detention of the suspects, the “TRNC” authorities would like to have the results of the DNA tests linking the suspects to the case. As a second step, the “TRNC” Chief of Police had suggested that the “TRNC” police be given information concerning the ballistics evidence in order to enable the “TRNC” authorities to compare that evidence with information in their database. The SPA had noted that there would be no discussion in any meeting held as to which side would bring the suspects to justice, as the matter at this stage would be limited to the investigation of the case, without giving rise to any political implications. That matter could be discussed later on a political level. The Cypriot police had expressed their hesitations as to the usefulness and repercussions of such a meeting. They undertook to inform the SPA of the Chief of Police’s decision on the matter. (g)  From the minutes of a meeting on 25 January 2005 (Turkey)
116. The meeting between the SPA and the “TRNC” Chief of Police on that 25 January 2005 was also reflected in the minutes submitted by the Turkish Government. According to these minutes, Elmas Güzelyurtlu had been known throughout Cyprus and had been suspected of many crimes; some had involved the suspects. The information in the hands of the Cypriot police was sufficient for the purpose of issuing arrest warrants in respect of the suspects. Although the “TRNC” police had already issued such warrants, they did not have evidence to bring proceedings against the suspects; more information was necessary. The SPA had asked for suggestions. (h)  From the minutes of a meeting on 26 January 2005 (Turkey)
117. On 26 January 2005 a meeting was held between UNFICYP officials and “TRNC” officials, including the “TRNC” Deputy Prime Minister. According to the minutes, the Deputy Prime Minister had mentioned that if the Cypriot authorities transmitted the evidence, the suspects’ detention would be extended; then if the “TRNC” courts considered the evidence to be credible, the suspects would be handed over to the Republic of Cyprus via UNFICYP. (i)  From the minutes of a meeting on 31 January 2005 (Turkey)
118. On 31 January 2005 another meeting was held between UNFICYP and “TRNC” officials. According to the minutes, the UNFICYP officials had submitted Interpol Red Notices in respect of three of the suspects detained in the “TRNC”. They had mentioned that the Cypriot authorities were reluctant to share the suspects’ DNA test results and did not want to collaborate with the “TRNC”. (j)  From the minutes of a meeting on 7 February 2005 (Turkey)
119. At a meeting held on 7 February 2005 UNFICYP officials and the “TRNC” Prime Minister discussed the reluctance of the Cypriot authorities to cooperate. (k)  From the minutes of a meeting on 18 February 2005 (Turkey)
120. On 18 February 2005 a meeting was held between the head of UNFICYP’s civil affairs unit and the Undersecretary of the “TRNC” Ministry of Foreign Affairs. The former stated that the Cypriot authorities’ attitude concerning their cooperation with the “TRNC” was changing and that they were planning to send the evidence through UNFICYP. He also asked the Undersecretary whether the suspects could be re-arrested and surrendered to the Cypriot authorities through UNFICYP. The Undersecretary replied that under the 1960 agreements if the suspects were Turkish, then they should be tried in a Turkish-Cypriot court. (l)  Email dated 7 March 2005 from the Director of the Diplomatic Office of the President of the Republic of Cyprus to the Chief European Union negotiator for Cyprus
121. According to this email, the Cypriot authorities around this time had forwarded to UNFICYP an interim report by the Laboratory of Forensic Genetics of the Cyprus Institute of Neurology and Genetics in order to facilitate its mediation of the handing-over of the suspects in the instant case. According to an internal note of a telephone conversation the Diplomatic Office was subsequently informed by UNFICYP that the above-mentioned report had been passed on to the “TRNC” authorities, who had found the evidence that it contained to be insufficient. The “TRNC” authorities had requested video tapes but had not clarified whether the suspects would be handed over if such tapes were given to them. (m)  From the minutes of a telephone conversation on 30 March 2005 (Turkey)
122. On 30 March 2005 the head of UNFICYP’s civil affairs unit had a telephone conversation with the “TRNC” Head of Consular Affairs. The former suggested that the courts of the Republic of Cyprus could sit at the British Sovereign Base areas and the hearing could take place there. The Head of Consular Affairs stated that the “TRNC” authorities were not planning to take any steps until the evidence and records were handed over to them because it was unacceptable to the “TRNC” authorities for the Cypriot authorities to work alone on this matter. (n)  From the minutes of a meeting on 5 April 2005 (Turkey)
123. On 5 April 2005 UNFICYP officials had a general meeting with the “TRNC” Head of Consular Affairs who mentioned that the DNA results given to them were not sufficient and that they needed more concrete evidence such as police investigation records and security camera recordings. The head of UNFICYP’s civil affairs unit promised to discuss this with the Cypriot side. (o)  Letter dated 23 February 2006 from the SPA to the applicants’ representatives
124. In reply to a previous letter where the applicant’s lawyer had requested the disclosure of any possible information relating to the UNFICYP’s efforts in the case, the SPA stated that the UNFICYP had become involved in the case on 16 January 2005 at the request of the Cypriot authorities, and that it had limited itself to a mediation role to facilitate the exchange of information between both sides. (p)  Letter dated 18 May 2006 from the Cypriot Chief of Police to the Ministry of Foreign Affairs of Cyprus
125. This letter stated that at meetings held with UNFICYP and the Deputy Senior Police Advisor (“the DSPA”), the SPA had suggested that meetings between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police be held at a technical services level in the mixed village of Pyla, which is located in the UN buffer zone. The Cypriot Chief of Police had rejected this as constituting a move towards recognising a “pseudo-state” which provided refuge to fugitives. He sought to obtain the Cypriot Government’s political position regarding this suggestion. (q)  Note by the Cypriot police to the Chief of Police dated 18 May 2006
126. This note stated that at a meeting held the day before between the SPA, the DSPA and members of the Cypriot police and investigation team, the DSPA had raised his concerns about an increased level of collaboration between Greek Cypriot and Turkish Cypriot criminals and their movements across the island. He had also enquired whether:
- the Cypriot police intended to give the evidence to UNFICYP for it to be forwarded to the “TRNC” authorities in order to enable the suspects’ prosecution;
- the Cypriot police could make the necessary arrangements for the suspects to be taken to a UNFICYP building at the Ledra Palace Hotel in the buffer zone and be questioned through “the video recording interview method”, and – if this was possible – whether such evidence would be admissible before a Cypriot court;
- if one of the suspects were to come over to make a statement against the other suspects, the Cypriot authorities would arrest him and bring criminal proceedings against him. 127. The Cypriot police had informed the DSPA that they would cooperate with UNFICYP but not with the “TRNC” authorities or police. They had also informed him that prosecution decisions were made by the Attorney-General. They had highlighted the fact that, despite the Red Notices, Turkey had refused to cooperate and had not surrendered the fifth suspect, who had gone to Turkey. They had arrested him but subsequently released him. 128. The DSPA had stated that the “TRNC” – pursuant to its own laws –could not surrender Turkish Cypriots. It had been stressed by the Police Chief Superintendent that the “TRNC” was not a State. The DSPA had also put forward the suggestion that the suspects could be surrendered to a third country such as Greece, and that steps to bring them to justice could be taken from there. The Police Chief Superintendent had informed him that this was not an option and that Turkey had an obligation to comply with international law. Finally, the DSPA had suggested that the matter could be discussed by the relevant technical committee in order to avoid the issue taking on a political dimension, to find solutions for cooperation and to bring the perpetrators to justice. He had been informed that this was a sensitive matter and that the political aspects could not be ignored; if the “pseudo-state” authorities were interested in completing the investigation and bringing the perpetrators to justice, they should stop providing refuge to criminals. (r)  Internal note about a meeting on 20 June 2006 between UNFICYP and the Cypriot police (Cyprus)
129. This note stated that at this meeting, the DSPA had noted that he was trying to convince the “TRNC” authorities to surrender the suspects. The Cypriot police had informed him that they would not be providing any evidence to, or cooperating with, the authorities of the “pseudo-state” but that they were willing to cooperate with UNFICYP without this implying any recognition of an illegal entity. (s)  Email dated 25 October 2006 sent by the DSPA to the applicants’ representative
130. In an email sent by the DSPA to the applicants’ representative, Mrs Meleagrou on 25 October 2006, the following, inter alia, was stated:
“I note your request and assure you of the UN’s utmost cooperation in dealing with any matter of a criminal nature, particularly ... in this most serious case. While UNFICYP has been exhausting its efforts to reach some conclusion to this case, it is unfortunate that there is a stalemate at this present time due to the two sides not agreeing on a way forward. I note your comments that:
The [Republic of Cyprus] will hand over to the UN in Cyprus all the evidence on the suspects so that the UN legal team can evaluate the evidence and see whether or not there is a prima facie case against them. The [Republic of Cyprus] will only do so if the ‘TRNC’ authorities give an undertaking that they will hand the suspects over to the [Republic of Cyprus] to be tried if the UN is satisfied (possibly after discussion with the ‘TRNC’ – the italicised parenthesis is not strictly speaking part of the proposal at this stage but might be what we will have to argue in order to facilitate matters) that there is such a prima facie case against the suspects:
1. The [Republic of Cyprus] will not hand over any evidence for the purposes of conducting a trial in the north. This is despite the fact that [an]other jurisdiction (United Kingdom) has in the past successfully caused a trial to be conducted in the north [in respect of] a serious crime committed in the UK. 2. The legal processes conducted in the north do not allow for the handing over of any [Turkish Cypriot] suspects to any authorities in the south or any other country in any other circumstances. Therefore UNFICYP stands ready to facilitate [in any way] it can in this case, I can see no resolution being [arrived at] until such time as one side or the other cedes their current position. Either the [Republic of Cyprus] is willing to hand over all the evidence to the north and offer full police and evidentiary cooperation so that a trial can be conducted in that ‘jurisdiction’, or the north is willing to hand over suspects [on the basis of] sufficient evidence to cause the [issuance] of an arrest warrant in the north, with a view to handling the suspects to UNFICYP for passing on the [Republic of Cyprus]. As always UNFICYP stands ready to cooperate in whatever manner it can.”
(t)  Email dated 16 November 2006 sent by UNFICYP to the applicants’ representative
131. In an email sent by UNFICYP to the applicants’ representative Mrs Meleagrou on 16 November 2006 the following was stated:
“As stated in my previous email to you UNFICYP stands ready to facilitate negotiations between the two sides in respect of this matter and indeed continues in its efforts to find a solution. However, UNFICYP is not in a position to formally engage a suitably qualified expert to officially adjudicate on the evidence held by the Republic of Cyprus. It has already been stated that while the UNFICYP believes that there is enough evidence on face value for the two sides to reach a suitable position, it welcomes the delivery of any further or all evidence, copies or otherwise, from the Republic of Cyprus that can be used to further meaningful dialogue between the two sides. I again reiterate the following options that may in my view facilitate further useful negotiations:
The [Republic of Cyprus], without prejudice, [should] deliver to the UNFICYP all necessary evidence, allowing this to be used as UNFICYP sees fit, with a view to negotiating the alleged offenders’ arrest and handover to UNFICYP for delivery to the authorities in the south for the purposes of a trial. However, without a clear guarantee that the north will arrest and hand over the alleged offenders there is little chance of this being successful. The only other solution is for the [Republic of Cyprus] to hand over all the evidence to UNFICYP for delivery to the relevant persons in the north with a view to having a trial conducted in the north. This option has already been rejected by the [Republic of Cyprus].”
2. Other relevant documents: the UN Secretary-General’s reports on the UN operation in Cyprus 
132. The relevant parts of the UN Secretary-General’s reports on the UN operation in Cyprus are set out below:
133. Report of 27 May 2005:
“23. Official contact between the sides is hampered by a high degree of mistrust. On 15 January 2005, three members of a Turkish Cypriot family living in the south were killed ... . Eight suspects were arrested in the north while all the evidence remained in the south. UNFICYP’s efforts to assist the sides to bring the suspects to justice proved unsuccessful, and all suspects were released in the north. This case is an illustration of the growing number of crimes across the cease-fire line, such as smuggling, drug trafficking, illegal immigration and human trafficking. These problems are implicit in the expanding inter-communal contacts, which though positive, have also the potential for adverse consequences if the present lack of cooperation between the sides persists. 24. The continuing absence of official contacts between the sides has accentuated UNFICYP’s role in promoting bicommunal contacts. Although people from either side can meet freely since the opening of the crossings in 2003, the impartiality of the Ledra Palace Hotel venue and the United Nations umbrella are considered indispensable for sensitive humanitarian and other meetings, including those of political parties from the north and the south. It is hoped that under the auspices of UNFICYP, contacts may be established between the sides, without prejudice to their political positions, on humanitarian and related issues generating a climate of trust and easing tensions. During the reporting period, UNFICYP provided facilities for 57 bicommunal events, including those implemented by the United Nations Development Programme (UNDP)/United Nations Office for Project Services (UNOPS) ...”. 134. Report of 2 June 2008:
“4. On 21 March [2008], ... the two leaders met in the presence of my then Special Representative and agreed on a path towards a comprehensive settlement (see annex II). The agreement entailed the establishment of a number of working groups, to consider the core issues pertaining to an eventual settlement plan, and of technical committees, to seek immediate solutions to everyday problems arising from the division of the island. They also agreed to meet again in three months to review the work of the working groups and the technical committees and, using their results, to start full-fledged negotiations under United Nations auspices. In addition, the leaders agreed to meet as and when needed prior to the commencement of full-fledged negotiations. ... 5. On 26 March [2008], representatives of the leaders agreed to establish six working groups on governance and power-sharing, European Union matters, security and guarantees, territory, property and economic matters, as well as seven technical committees on crime and criminal matters, economic and commercial matters, cultural heritage, crisis management, humanitarian matters, health and the environment. ... On 22 April [2008], the groups and committees began to meet. They have been coming together on a regular basis since then, as foreseen by the leaders, and facilitated by the United Nations.”
135. Report of 15 May 2009:
“9. On 14 April [2009], the leaders agreed to the implementation of 4 of the 23 confidence-building measures identified by the technical committees, which were aimed at improving the daily life of Cypriots across the entire island. They concern the passage of ambulances through crossing points in cases of emergency, the establishment of a communications and liaison facility (operating round the clock) to share information on crime and criminal matters, an initiative funded by the United Nations Development Programme (UNDP) on awareness-raising measures for saving water and the establishment of an advisory board on shared cultural heritage. ...”
136. Report of 9 January 2015:
“10. ... UNFICYP police facilitated meetings of the Technical Committee on Crime and Criminal Matters, and the Joint Communications Room continued to work actively, providing the police services of both sides with a forum for enhanced cooperation. The appointment for the first time of serving police officers as Greek Cypriot representatives to the Technical Committee signaled a significant step forward in cooperation. Over and above the exchange of information on criminal matters that have intercommunal elements, the Joint Communications Room focused on the investigation of crimes that took place within and across the buffer zone, the handover of persons of interest through the UNFICYP police and humanitarian cases.”
II. RELEVANT DOMESTIC LAW
A. Extradition
137. Article 9 § 1 of the former Turkish Criminal Code (Law no. 765) provided that:
“A request for the extradition to foreign States of a Turkish national on account of a criminal offence cannot be accepted.”
138. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Article 18 § 2 provided as follows:
“A citizen cannot be extradited on account of a criminal offence except under the obligations arising out of [Turkey] being a party to the International Criminal Court.”
139. The Law on International Judicial Cooperation in Criminal Matters (Law no. 6706), which entered into force on 5 May 2016, replaced Article 18 of Law no. 5237. Article 11 § 1 (a), concerning the extradition of Turkish nationals, provides as follows:
“1. In the circumstances listed below an extradition request shall be rejected:
(a) If the person whose extradition is requested is a Turkish citizen, except for the obligations arising out of [Turkey] being a party to the International Criminal Court; ...”
140. Section 5 of the “TRNC” Law on Extradition of Criminals, Mutual Enforcement of Court Decisions and Judicial Cooperation (Law 43/1988), in so far as relevant, provides that extradition will be refused when, inter alia, the person whose extradition is sought is a national of the country to which the request is addressed (section 5(1)(C)) or if the crime that is the subject of the extradition request was committed, wholly or partially, in the requested State or in a place/location under its jurisdiction (section 5(1)(F)). Section 19 of the above-mentioned law provides for the reciprocity principle and states that this law applies in respect of countries which have executed agreements with the “TRNC” regarding matters that fall within the scope of this Law, on the basis of reciprocity. B. Criminal jurisdiction
141. According to the law of the Republic of Cyprus, Assize Courts have jurisdiction to try all offences punishable under the Criminal Code or any other law, which were committed within the bounds of the Republic (section 20(1)(a) of the Courts of Justice Law 1960 (14/1960)). 142. Under the Constitution of the Republic of Cyprus of 16 August 1960, “a court exercising criminal jurisdiction in a case where the accused and the person injured belong to the same Community[1], or where there is no person injured, shall be composed of a judge or judges belonging to that Community” (Article 159(2)). Following the inter-communal problems in 1963, the Administration of Justice (Miscellaneous Provisions) Law (“Law no. 33/1964”) was enacted in order to address an emergency situation and to set up the necessary judicial machinery for the continued administration of justice (see Kamenos v. Cyprus, no. 147/07, § 34, 31 October 2017). By virtue of section 12 of that law any subordinate court shall be composed of such judge or judges, irrespective of the Community of the litigants, as the Supreme Court may direct, and any District Judge may hear and determine any case within his jurisdiction, irrespective of the Community of the litigants. Provisions for the establishment, composition and jurisdiction of the Assize Courts can be found in the Courts of Justice Law, Law no. 14/1960 (as amended – sections 3, 5 and 20). 143. Section 31(1) of the “TRNC” Courts of Justice Law (Law no. 9/1976) provides that without prejudice to the constitutional provisions, the appropriate Assize Court has jurisdiction to try, inter alia, offences punishable under the criminal law or any other law which have been committed (a) in the “TRNC” (section 31(1)(a)); or (b) outside the “TRNC” but on the island of Cyprus (section 31(1)(b)). III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. Council of Europe instruments on extradition
144. The European Convention on Extradition of 13 December 1957 (“the Extradition Convention”) was ratified by Turkey on 7 January 1960 and entered into force in respect of Turkey on 18 April 1960. The four Additional Protocols to the Convention were ratified on 10 July 1992 (the Second Protocol) and 11 July 2016 (the Additional, Third and Fourth Protocols) and entered into force in respect of Turkey on 8 October 1992 (the Second Protocol), 9 October 2016 (the Additional Protocol), and 1 November 2016 (the Third and Fourth Protocols). Turkey has made a declaration in respect of the Additional Protocol and the Third and Fourth Additional Protocols concerning the Republic of Cyprus. It declared that its ratification of the above Protocols did not amount “to any form of recognition of the Greek Cypriot Administration’s pretention to represent the defunct ‘Republic of Cyprus’ as party” to these instruments, “nor should it imply any obligations on the part of Turkey to enter into any dealing with the so-called Republic of Cyprus within the framework” of these instruments. 145. This Convention was ratified by Cyprus on 22 January 1971 and entered into force in respect of Cyprus on 22 April 1971. The First, Second and Third Additional Protocols to the Convention were also ratified on 22 May 1979, 13 April 1984 and 7 February 2014 and entered into force in respect of Cyprus on 20 August 1979, 12 July 1984 and 1 June 2014 respectively. On 6 December 2016 Cyprus entered an objection to the above declarations by Turkey (see paragraph 144 above), stating that these declarations were tantamount in essence to a reservation contrary to the object and purpose of the Protocols and that they prevented the realisation of cooperation between State Parties foreseen by them. Cyprus added that it considered the Turkish declarations to be null and void and that its objection should not preclude the entry into force of the relevant Protocols, in their entirety, between the Republic of Cyprus and Turkey. 146. The Extradition Convention has been ratified by all member States of the Council of Europe. 147. The relevant provisions of this Convention read as follows:
Article 1 – Obligation to extradite
“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
Article 2 – Extraditable offences
“1. Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months.
...”
Article 6 – Extradition of nationals
“1. (a) A Contracting Party shall have the right to refuse extradition of its nationals. (b) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term ‘nationals’ within the meaning of this Convention.
... 2. If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request.”
Article 12 – The request and supporting documents
“1. The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties. 2. The request shall be supported by:
(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
(b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
(c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.”
Article 13 – Supplementary information
“If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Convention, the latter Party shall request the necessary supplementary information and may fix a timelimit for the receipt thereof.”
Article 16 – Provisional arrest
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought. 5. Release shall not prejudice re-arrest and extradition if a request for extradition is received subsequently.”
Article 18 – Surrender of the person to be extradited
“1. The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition. 2. Reasons shall be given for any complete or partial rejection.
...”
Article 27 – Territorial application
“1. This Convention shall apply to the metropolitan territories of the Contracting Parties.
...”
148. Some States Parties to the Convention (Turkey is not among them) have made specific reservations to the effect that they may refuse extradition if the requesting State does not produce sufficient evidence that the person claimed has committed the offence. B. Council of Europe instruments on other forms of cooperation in criminal matters
1. The European Convention on Mutual Assistance in Criminal Matters
149. The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (“the Mutual Assistance Convention”) was ratified by Turkey on 24 June 1969 and entered into force in respect of Turkey on 22 September 1969. Turkey ratified the two Additional Protocols on 29 March 1990 and 11 July 2016 respectively; they came into force in respect of Turkey on 27 June 1990 and 1 November 2016. Turkey made the same declaration as the one made under the Extradition Convention (see paragraph 144 above) in respect of the Second Additional Protocol concerning the Republic of Cyprus (declaration of 11 July 2016). 150. The Mutual Assistance Convention was ratified by Cyprus on 24 February 2000 and entered into force on 24 May 2000. Cyprus ratified the two Additional Protocols on 24 February 2000 and 12 February 2015 respectively; they came into force in respect of Cyprus on 24 May 2000 and 1 June 2015. On 6 December 2016 Cyprus made an objection to the above declaration made by Turkey, in the same terms as the one made under the Extradition Convention (see paragraph 145 above). 151. The Mutual Assistance Convention has been ratified by all member States of the Council of Europe. 152. The relevant provisions of this Convention read as follows:
Article 1
“1. The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.
...”
Article 2
“Assistance may be refused:
(a) if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence;
(b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country.”
Article 3
“1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. 2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it. 3. The requested Party may transmit certified copies or certified photostat copies of records or documents requested, unless the requesting Party expressly requests the transmission of originals, in which case the requested Party shall make every effort to comply with the request.”
Article 6
“1. The requested Party may delay the handing over of any property, records or documents requested, if it requires the said property, records or documents in connection with pending criminal proceedings.
...”
Article 15
“1. Letters rogatory referred to in Articles 3, 4 and 5 as well as the applications referred to in Article 11 shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and shall be returned through the same channels. 2. In case of urgency, letters rogatory may be addressed directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. They shall be returned together with the relevant documents through the channels stipulated in paragraph 1 of this article.
... 7. The provisions of this article are without prejudice to those of bilateral agreements or arrangements in force between Contracting Parties which provide for the direct transmission of requests for assistance between their respective authorities.”
Article 19
“Reasons shall be given for any refusal of mutual assistance.”
153. Some State Parties to the Convention (Cyprus is not among them) have made reservations reserving their right to refuse the assistance in case of pending criminal proceedings. 2. The European Convention on the Transfer of Proceedings in Criminal Matters
154. The European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 (“the Transfer of Proceedings Convention”) was ratified by Turkey on 27 October 1978 and entered into force in respect of Turkey on 28 January 1979. Turkey made at that time a reservation to the effect that it did not consider itself bound to carry out the provisions of the Convention “in relation to the Greek Cypriot Administration, which is not constitutionally entitled to represent alone the Republic of Cyprus”. This Convention was ratified by Cyprus on 19 December 2001 and entered into force in respect of Cyprus on 20 March 2002. 155. The Transfer of Proceedings Convention has been ratified by 25 member States of the Council of Europe. 10 other member States have only signed it. 156. The relevant provisions of this Convention read as follows:
Article 3
“Any Contracting State having competence under its own law to prosecute an offence may, for the purposes of applying this Convention, waive or desist from proceedings against a suspected person who is being or will be prosecuted for the same offence by another Contracting State. Having regard to Article 21, paragraph 2, any such decision to waive or to desist from proceedings shall be provisional pending a final decision in the other Contracting State.”
Article 6
“1. When a person is suspected of having committed an offence under the law of a Contracting State, that State may request another Contracting State to take proceedings in the cases and under the conditions provided for in this Convention. 2. If under the provisions of this Convention a Contracting State may request another Contracting State to take proceedings, the competent authorities of the first State shall take that possibility into consideration.”
Article 8
“1. A Contracting State may request another Contracting State to take proceedings in any one or more of the following cases:
a. if the suspected person is ordinarily resident in the requested State;
b. if the suspected person is a national of the requested State or if that State is his State of origin;
c. if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested State;
d. if proceedings for the same or other offences are being taken against the suspected person in the requested State;
e. if it considers that transfer of the proceedings is warranted in the interests of arriving at the truth and in particular that the most important items of evidence are located in the requested State;
f. if it considers that the enforcement in the requested State of a sentence if one were passed is likely to improve the prospects for the social rehabilitation of the person sentenced;
g. if it considers that the presence of the suspected person cannot be ensured at the hearing of proceedings in the requesting State and that his presence in person at the hearing of proceedings in the requested State can be ensured;
h. if it considers that it could not itself enforce a sentence if one were passed, even by having recourse to extradition, and that the requested State could do so;
...”
C. The principle of non-recognition
157. The International Law Commission (ILC), at its fifty-third session, in 2001, adopted a set of “Draft articles on Responsibility of States for Internationally Wrongful Acts”. This text was submitted to the United Nations General Assembly, which took note of it (Resolution A/RES/56/83 of 12 December 2001). The following Articles are of particular interest:
Chapter III
Serious breaches of obligations under peremptory norms of general international law
Article 40
Application of this chapter
“1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”

Article of the Convention at issue: Article 2
Outcome: no_violation