Introduction*

On 29 January 2019, the Grand Chamber of the European Court of Human Rights (“ECtHR”, or “Court”) issued a judgment in the case of Güzelyurtlu and others v. Cyprus and Turkey. The judgment represents an interesting evolution of the Court’s case law concerning procedural obligations under Article 2 ECHR (right to life). The ECtHR addressed the topic of obligations incumbent on a State with respect to a murder occurred outside its territory. It examined two main issues: the criteria for establishing a jurisdictional link between the State and the murder, and the duty of the State to cooperate with foreign authorities in the ensuing criminal investigations.

The judgment is particularly interesting as the Court established a clear connection between the obligations under Article 2 ECHR and those deriving from the international instruments of judicial cooperation to which that State is bound. The present contribution aims at highlighting how the conclusion reached in this judgment may constitute the basis of an interesting interplay between the European Convention on Human Rights and EU instruments of judicial cooperation in criminal matters.

After a brief description of the facts of the case, the post will examine the principles affirmed in Güzelyurtlu and formulate hypotheses about how they may be applied in the future to cases concerning cooperation between EU Member States under the Framework Decision on the European Arrest Warrant (FDEAW).

Facts of the case

The facts of the case took place in Cyprus. Since the 1970s, following clashes between the Turkish and the Greek communities living in the island, Cyprus has been de facto divided in two areas: the southern part, under the control of the Republic of Cyprus (“RC”), and the northern part, under the control of the Turkish Republic of Northern Cyprus (TRNC). While the Republic of Cyprus is officially recognized by the international community, the TRNC is a political entity whose self-proclamation has been declared legally invalid by the UN. The ECtHR has long established that Turkey exercises effective control over this area, and can thus be held responsible for violation of human rights committed there.

The Güzelyurtlu case originates in the murder of three Turkish Cypriots, committed in the part of the island controlled by the Republic of Cyprus. The RC authorities opened an investigation and identified eight suspects, who had all fled to the TRNC. Investigations were also opened by the TRNC authorities, who initially arrested the suspects. However, both investigations came to an impasse when the TRNC authorities refused to surrender the suspects to the Republic of Cyprus, and the latter refused to surrender the case-file to the TRNC authorities. Currently, the suspects have been released and none of them has been tried for murder. The victims’ relatives lodged an application with the ECtHR, complaining under Articles 2 and 13 ECHR of the ineffectiveness of the investigations.

Establishing a jurisdictional link between a State and a murder committed outside its territory

Turkey’s preliminary objections included its lack of jurisdiction for acts committed outside its territory. Under Article 1 ECHR, State parties must secure “within their jurisdiction” the rights and freedoms protected by the Convention and its Protocols. According to the the Court’s case law, “jurisdiction” is primarily territorial, which means that it is presumed to be exercised normally throughout the State’s territory. [1]  However, in exceptional cases, the notion of jurisdiction may also extend to acts performed, or producing effects, outside the territory of the State: this is the case, for instance, of acts committed on area outside the national territory on which the State exercises effective control as a consequence of a military action ; of acts carried out on board aircraft and vessels registered in, or flying the flag of, that State; of acts committed in respect of an individual on whom the State, through its agents, exercises control and authority.

In Güzelyurtlu, no particular issue arose as regards Turkey’s jurisdiction for the acts and omissions attributable to TRNC authorities, in light of the abundant case law acknowledging that Turkey exercises effective control over the Turkish Republic of Northern Cyprus. However, it was debated whether Turkey’s jurisdiction could be established in respect of events, such as the murder of the applicants’ relatives, that had occurred in the part of the island which is under the control of the Republic of Cyprus. Turkey maintained that a State is obliged to investigate a death under Article 2 ECHR only if there is a “jurisdictional link” between the victim and the State, and that in the present case there was no “jurisdictional link”, either on the basis of territoriality, State agent authority and control, or effective control over an area.

The Grand Chamber noted that an investigation had been opened in northern Cyprus as regards the applicants’ relatives’ deaths, and, drawing from previous case law, concluded that the institution of such investigation was sufficient to establish a jurisdictional link for the purposes of Article 1 ECHR. In addition, recalling the principles laid down in Rantsev v. Cyprus and Russia, the Court clarified that, even if no investigation had been instituted, a jurisdictional link would have been established because of the “special features” of case, namely the fact that the murder suspects were known to have fled to the part of the Cypriot territory which was under the effective control of Turkey, therefore preventing the Republic of Cyprus from fulfilling its own Convention obligations.

Article 2 ECHR and the duty to cooperate with foreign authorities

Article 2 ECHR, protecting the right to life, is source of different obligations. Under the Court’s case law, it requires, inter alia, some form of effective official investigation when individuals have been killed as a result of the use of force.[2] When an incident of unlawful violence leading to loss of lives has cross-border elements, the ECtHR has held that the procedural obligation falls primarily on the respondent State under whose jurisdiction the victim was at the time of death. As regards the obligations incumbent upon other States, the ECtHR has examined issues concerning the gathering of evidence, reaching the conclusion that Article 2 imposes on the State where evidence is located to render any assistance within its competence and means sought under a legal assistance request.

In Güzelyurtlu, the Court elaborated on the duty of the State to cooperate with foreign authorities, and for the first time found a violation of Article 2 based solely on the lack of cooperation. Notably, the Grand Chamber assessed the following:

 “232. (…) In cases where an effective investigation into an unlawful killing which occurred within the jurisdiction of one Contracting State requires the involvement of more than one Contracting State, the Court finds that the Convention’s special character as a collective enforcement treaty entails in principle an obligation on the part of the States concerned to cooperate effectively with each other in order to elucidate the circumstances of the killing and to bring the perpetrators to justice.

233. The Court accordingly takes the view that Article 2 may require from both States a two-way obligation to cooperate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case (…)”

In addition to establishing an autonomous obligation to cooperate under Article 2 ECHR, the Grand Chamber pronounced on the relationship between this obligation and those incumbent upon the State under other instruments of international law:

“235. (…) This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters.

236. (…) Therefore, the procedural obligation to cooperate under Article 2 should be interpreted in the light of international treaties or agreements applicable between the Contracting States concerned, following as far as possible a combined and harmonious application of the Convention and those instruments, which should not result in conflict or opposition between them …. In this context, the procedural obligation to cooperate will only be breached in respect of a State required to seek cooperation if it has failed to trigger the proper mechanisms for cooperation under the relevant international treaties; and in respect of the requested State, if it has failed to respond properly or has not been able to invoke a legitimate ground for refusing the cooperation requested under those instruments.”

Applying these principles to the specific case, the Court’s finding of a violation of Article 2 ECHR was grounded, inter alia, on the fact that Turkey had not complied with its obligation under Article 18 of the 1957 European Convention on Extradition to examine and provide a reasoned reply to the Republic of Cyprus’ extradition request.

Conclusion

In the Güzelyurtlu judgment, the ECtHR has found, for the first time, a violation of Article 2 ECHR on the sole basis of a failure to cooperate with another State. It is worth noting that, in order to establish this failure, the Grand Chamber referred to the international instruments on mutual legal assistance and cooperation in criminal matters binding the two States concerned, and concluded in favor of an interpretation of Article 2 consonant with the obligations deriving from these instruments.

The conclusions reached by the Grand Chamber are likely to be relevant in future cases concerning cooperation in criminal matters between EU Member States. The Court has already examined at least three cases[3] in which the complaint concerned a Member State’s failure to cooperate under the terms of the Framework Decision on the European Arrest Warrant (FDEAW). In two of these cases, the Court has found no violation because the respondent State(s) had “genuinely and diligently sought” cooperation. In one case[4] the Court has found a violation of Article 2 deriving from a number of shortcomings in the criminal proceedings, which included (but were not limited to) the lack of diligence in using the tools provided for under the FDEAW.

The conclusion reached by the Grand Chamber in Güzelyurtlu clear the path for finding violations of Article 2 ECHR on the basis of non-compliance with EU instruments of judicial cooperation in criminal matters, such as the FDEAW. As in Güzelyurtlu the violation was grounded on lack of compliance with Article 18 of the 1957 European Convention on Extradition , in future cases a violation may be grounded, for instance, on non-compliance with Article 17 FDEAW, which requires EU Member States to render a final decision on the execution of a European arrest warrant within a period of 60 days after the arrest of the requested person. Non-compliance with this time limit may thus be considered not only as an infringement of EU law,  but also as a violation of the obligation to cooperate under Article 2 ECHR. The same reasoning may apply to any other failure to comply with EU law obligations in the field of judicial cooperation in criminal matters, thus creating an interesting interplay of “double violations”: infringements of EU law which also constitute violations of the obligations under Article 2 ECHR.

* The views in this post represent the personal opinion of the author in her private capacity.

[1] The relevant principles are summarized in Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012.

[2] The relevant principles are summarized in Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, 14 April 2015.

[3] Minneker and Engrand v Belgium n. 45870/12 (dec) 07 February 2017; Zoltai v. Hungary and Ireland n. 61946/12 (dec) 29 September 2015 ; Agache and Others v. Romania n. 2712/02, 20 October 2009

[4] Agache, cit.