CASE OF GÜZELYURTLU AND OTHERS v. CYPRUS AND TURKEY

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) (Cyprus);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) (Turkey);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Ganna Yudkivska;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Iulia Motoc;Pere Pastor Vilanova

The application concerns the murder on 15 January 2005 of Elmas, Zerrin and Eylül Güzelyurtlu, all Cypriot nationals of Turkish Cypriot origin.

The applicants are the family 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.

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 the “TRNC”. The second, third and fourth applicants live in the United Kingdom.

Elmas Güzelyurtlu was a businessman and used to live with his wife Zerrin and daughter Eylül in the “TRNC”. In 2000, following the collapse of the bank that Elmas Güzelyurtlu owned, Elmas Güzelyurtlu 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.

On 15 January 2005 at about 8.00 a.m. on the Nicosia-Larnaca highway, near the Athiainou exit, 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.

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 her daughter 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.

The particulars of the investigation and the measures taken, as submitted by the Cypriot Government and as can be seen from the documents contained in the case file, may be summarised as follows.

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 sealed off.

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.

An investigation team consisting of eight officers was set up.

The car was taken away for further inspection.

At about 9.25 a.m. officers went to the victims’ house in Ayios Dometios. The house was secured and sealed off. An investigation was carried out by the investigation team and a forensic pathologist. 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.

Numerous exhibits were collected from the scene of the crime and the victims’ home. These were sent for forensic examination.

On the same day the victims’ bodies were taken to the mortuary at Larnaca General Hospital for a post-mortem examination. Death certificates were issued.

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 (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.

The investigation included the tracing and questioning of numerous witnesses, 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 discs 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).

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.

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 11.00 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.

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.

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.

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.

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”). It appears from the documents submitted to the Court that the first, second, third and fourth suspects were Cypriot nationals and “TRNC” citizens and that the fifth suspect was a Turkish national.

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.

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.

The other two suspects were linked to the murder through other evidence. DNA belonging to two unidentified persons was also found.

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).

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.

On 23 January 2005 the police submitted “Red Notice” requests to Interpol to search for and arrest the suspects with a view to their extradition.

On 24 January 2005 an official request was made by the Director of the Diplomatic Office of the President of the Republic to the Special Representative and Chief of Mission (“the Special Representative”) of the United Nations Peacekeeping Force in Cyprus (“UNFICYP”) to facilitate the handing over to the appropriate authorities of the Republic of Cyprus of all the suspects and all evidential material relating to the crime and/or suspects in northern Cyprus (see paragraph 129 below).

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.

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.

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”). It appears from the documents submitted to the Court that the sixth and eighth suspects were Cypriot nationals and “TRNC” citizens and that 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.

On 4 February 2005 the Larnaca District Court issued arrest warrants against all three suspects on the same grounds as those issued in respect of the other suspects (see paragraph 31 above).

On 10 February 2005 the same court issued European arrest warrants against them.

On 11 February 2005, at the request of the Cypriot authorities, Red Notices were published in respect of the latter three suspects.

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.

On 15 February 2005 the police authorities transmitted “stop list” messages to the immigration authorities (see paragraph 32 above).

As can be seen from an email dated 7 March 2005 from the Director of the Diplomatic Office of the President of the Republic to the Chief European Union negotiator for Cyprus, the Cypriot authorities around this time 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. The European Commission was asked for any assistance that it might be in a position to provide in bringing the perpetrators of the murders to justice. 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 requested video tapes but did not clarify whether the suspects would be handed over if such tapes were given to them.

The 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. The applicants’ representatives had also met and had been in telephone contact with the Attorney-General.

On 12 July 2006 the eighth suspect was arrested by Cypriot police in Limassol (in the 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 Act (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.

In a letter dated 26 July 2006 the Attorney-General 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 that might be involved [were 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.

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.

As the authorities were not able to execute the arrest warrants in the “TRNC” or undertake other steps through UNFICYP, 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.

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.

On 19 May 2008 the case file were transferred to the coroner for the inquest proceedings (inquest nos. 9/05, 10/05 11/05) before the Larnaca District Court. The proceedings were scheduled by the court for 18 August 2009. According to the Cypriot Government, on that date the proceedings were adjourned until October 2009 due to the non-attendance of the first applicant. The first applicant was notified by the officer in charge of the investigation of the inquest proceedings and was requested to attend, as the testimony of a relative of the victims was necessary. No further information has been provided about these proceedings by the Cypriot Government.

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 – that international arrest warrants be issued in respect of the suspects and that Turkey – who had, pursuant to the Court’s judgments, responsibility for whatever occurred in the occupied areas – be requested to enforce them. He requested that, if this had not been done already, international arrest warrants be issued as quickly as possible for the surrender of the suspects to the Republic of Cyprus.

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.

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 164 and 165 below).

On 23 September 2008, extradition requests in respect of the six remaining suspects (see paragraphs 45 and 52 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.

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 and 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.

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 had left (παράτησε) the envelope and departed in haste.

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 of Extradition, due to Turkey’s refusal to recognise the Republic of Cyprus as a State.

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 countersigned 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.

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.

The particulars of the investigation and measures, according to the submission of the Turkish Government and as can be seen from the documents they provided, may be summarised as follows.

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.

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.

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.

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 27 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 morning hours. There was no record of the entry and exit of the other suspects on that day.

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.

The first suspect’s BMW car was inspected, but no evidence was found.

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 fake registered vehicle with falsified documents and statements (Sahte Belge Düzenleme –Yalan Belge ve Beyanlarla Sahte Kayitla Araç Temin Etme).

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 registry records, etc.” (Hirsizlik, Sahte Belge Düzenlemek, Sahte Kayut Temin Etmek v.s.).

The second suspect was arrested the next day and was detained at Lapithos (“Lapta”) police headquarters.

The fifth suspect had already left for Turkey (on 18 January 2005) when the Red Notice was published by Interpol on 28 January 2005 (see paragraph 35 above).

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.

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.

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.

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.

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.

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.

On 23 January 2005 the fifth suspect was arrested as, in the meantime, he had returned to the “TRNC” (see paragraph 75 above).

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.

On 25 January 2005 “TNRC” 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. The above-mentioned 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, in particular, whether or not they had Turkish nationality.

The Turkish Government submitted that on 23 and 28 January 2005 the Turkish Ministry of Internal Affairs received emails from Greek Cypriot Interpol stating that they 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 into Turkey.

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.

On the same day the “TRNC” Nicosia District Court issued a warrant in respect of the sixth and seventh suspects (see paragraph 37 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.

By a letter dated 27 January 2005 “TRNC” Nicosia police headquarters provided the Turkish Ministry of Internal Affairs with information about the suspects’ identities.

On 28 January 2005 the “TRNC” Nicosia District Court remanded the sixth, seventh and eighth suspects (see paragraph 37 above) in custody for three days on suspicion of premeditated murder. It also issued a search warrant for the house of the eighth suspect.

On the same date the “TRNC” police also took a statement from the fifth suspect.

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.

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.

On 1 February 2005 the “TRNC” Nicosia District Court extended the first five suspects’ detention for seven further days on suspicion of premeditated murder.

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., who they also considered to be a suspect in the case. It transpired that this suspect had left for Turkey on 19 January 2005.

On 7 February 2005 “TRNC” Nicosia police headquarters requested the Turkish Ministry of Internal Affairs police headquarters to carry out a criminal record check on M.K. and to inform them whether he was in Turkey or not.

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.

On or around 11 February 2005 all the suspects were released due to a lack of evidence connecting them to the crime.

The Turkish Government submitted that on 11 February 2005 another email was sent to the Turkish Ministry of Internal Affairs by Greek Cypriot Interpol informing them that they had information that the fifth suspect was going to travel to Mersin in Turkey the same day and requesting the Turkish authorities to take the necessary measures.

The fifth suspect was arrested on the above date as he was entering Mersin. On 15 February 2005 he 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 was released in the absence of any evidence connecting him to the crime in question and in the absence of an extradition request.

M.K. (see paragraph 89 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.

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.

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” (İş Cetveli) and the copies of the statements provided, statements were taken from various witnesses, including the suspects. They also searched for evidence and took fingerprints.

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.

The Turkish Government submitted that, following a report by the “TRNC” Police Chief Inspector, the case had been classified as “non-resolved”. 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 of his writing the report the police had not been able to resolve the case. He therefore suggested that the case be logged as “non-resolved for the time being”.

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 “non-resolved for the time being” on the instructions of the previous “TRNC” Attorney-General.

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.

The Turkish Government submitted that after they received the investigation file from the Cypriot Government through the Court following communication of the case, the “TRNC” police questioned again the first and second suspects on 24 February 2010. The suspects denied their involvement in the killings.

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.

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 refused to give any statement to the police.

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.

In a summary of the first applicant’s statements to his lawyers between 2006 and 2007, the first applicant stated, inter alia, the following:

On the morning of 15 January 2005 the Cypriot police informed the first applicant of the death of his parents and sister. He went to Larnaca morgue to identify the victims. He signed a form authorising police officers to enter the family home in Ayios Dometios and conduct an investigation. The first applicant was present for part of the investigation and then went with the police to his father’s office in Nicosia, where the police took documents as part of the investigation.

The next day the first applicant went to Larnaca morgue and then Larnaca police station, where he spent nine hours giving a statement. In his statement he informed the police of the identities of the persons he suspected of committing the murders and the grounds for his suspicions.

On 17 January 2005 the first applicant took the victims’ bodies back to the “TRNC”, where a funeral was held.

On 18 January 2005 the first applicant had meetings with the “TRNC” police.

On 19 January 2005 the first, second and fourth applicants went to Nicosia police headquarters, where they were shown pictures and sketches of a number of people and asked whether they recognised them. Some of the photos had been taken at the funeral. The first applicant identified one of the suspects. The next day they returned to Nicosia police headquarters and were informed that the Cypriot police had DNA matches for at least three of the suspects and had found other DNA which they could not, however, match to any person in their records. The first applicant also gave them information concerning the investigation by the “TRNC” police.

During the two weeks following the killings the first applicant met often with the Cypriot and the “TRNC” police and was informed by both sides of their respective investigations. He also updated each side on the other side’s progress in an effort to prevent the suspects’ release for lack of evidence and to convince the “TRNC” police to surrender them to the Cypriot Government for trial.

The first applicant had meetings with a number of “TRNC” high-ranking officials.

In March 2007 the Cypriot police informed the first applicant that the car and the material removed from the victims’ home and office could be returned. They also informed the first applicant of the circumstances of the killings, that the investigation remained open and that the evidence had been shown to UNFICYP but that the “TRNC” authorities refused to cooperate. Although the Cypriot police showed the first applicant copies of the Red Notices and witness statements, they refused to give him copies. They also informed him that only a court could take possession of the case file (at the appropriate time).

The applicants’ representatives had meetings about the case with the Attorney-General of the Republic of Cyprus in January 2006 and July 2006.

Furthermore, on 1 February 2006, at a meeting at Nicosia Police Headquarters, the applicants’ lawyers were informed that one of the suspects had been briefly detained in Turkey. The Cypriot police had received this information from the office of Interpol in Athens.

On 15 March 2006 the applicants, upon their request, were given a progress report by the Cypriot police on the case. The applicants submitted that they had requested all the evidentiary material but this was not provided with the report.

On 15 July 2007 there was an attempt to kill the first applicant at his home in the “TRNC”. During that month the applicants were also informed by the Cypriot police that the arrest warrant in respect of one of the suspects had been cancelled.

In May 2009 the first applicant’s bodyguard was murdered.

With regard to the inquest, the applicants submitted that the Larnaca District Court had adjourned the inquest on 19 August 2009 for administrative reasons and not because of the first applicant’s absence. The court had resumed the inquest proceedings on 14 and again on 20 October 2009. Three of the applicants had attended with their counsel and a local lawyer. The inquest had confined itself to investigating whether the deaths had been the result of an unlawful killing. The judge had referred the matter to the Attorney-General as she was functus officio in so far as the criminal proceedings were concerned.

The applicants, through their representatives, sent a number of letters to various Cypriot, Turkish and “TRNC” high-ranking officials about the case, including the President of the Republic of Cyprus, the Prime Minister of Turkey and the President of the “TRNC”.

In a letter dated 30 November 2006 the applicants’ counsel informed the Prime Minister of Turkey about the case and all the steps that had been taken until that date. They informed him, inter alia, that the Government of Cyprus had stated that they were prepared to hand over the relevant evidence to UNFICYP in order for the latter to decide whether there was a prima facie case against the suspects with the proviso that if UNFICYP concluded that there was indeed such a case, the “TRNC” would undertake to surrender the suspects. As UNFICYP was not prepared to take on this task (see paragraph 149 below) and the “TRNC” insisted on making a decision only after receiving the evidence, the applicants’ counsel stated that “I believe that I have now exhausted the possibilities for reaching the desired compromise through negotiation and mediation”.

Following the murders the Cypriot Government, the “TRNC” authorities and the applicants were in contact with UNFICYP officials concerning the case. A number of meetings were held. There was also an exchange of telephone calls and correspondence. The relevant information provided by the parties is set out below.

According to this note, the Cypriot authorities made contact with UNFICYP’s Special Representative 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 Special Representative 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.

According to this note, a meeting was held on that day at UNFICYP headquarters in Nicosia on the initiative of UNFICYP’s Senior Police Adviser and Commander (“the SPA”) between the SPA and the assistant of the Cypriot Chief of Police. The UNFICYP’s liaison officer was also present. The SPA stated that she had had, on the same day, a long meeting concerning the murders with the “TRNC” Chief of Police in the presence of other officers and 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 with 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 get 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 help.

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).

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.

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.

This letter reaffirmed the Cypriot Government’s determination to bring the suspects to justice. The Cypriot authorities had collected sufficient evidence, issued arrest warrants for five suspects and requested UNFICYP to facilitate the handing over of the suspects and evidential material to the relevant authorities of the Republic of Cyprus. 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.

This note stated that the “TRNC” Attorney-General did not intend to hand over to the police of the Republic of Cyprus the three suspects that were detained in the “TRNC” for the murders, relying on the 1960 Constitution. The “TRNC” Attorney-General had notified UNFICYP of this. An attached memo by UNFICYP stated as follows:

“I have seen the [Attorney-General]. Mr A.S. with regard to the inquiries [made in respect of] and the prosecution of the culprits in respect of the Elmas Güzelyurtlu murder. He says that there is no legal and/or constitutional basis for handing over the accused to the Republican Authorities, for the following reasons:

The Constitution of Cyprus

Articles: 133,153,158,159 (2), (3) and (4)

Admin. of Justice Law 14/60

Section 4

Section 5

Section 20

Section 23

He made representation to UN for the Turkish suspect kept by the Greek Police to be handed over to Turkish for prosecution, together with others”.

This note stated that the SPA had met with the police at Nicosia police headquarters after she had met the same day with the “TRNC” Chief of Police. The latter had suggested that a meeting be organised with the Cypriot police, in secret, in 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 were possibly 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 ballistic 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. This 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 would inform her of the Chief of Police’s decision on the matter.

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 (τεχνικό υπηρεσιακό επίπεδο) in the mixed village of Pyla, which is located in the UN buffer zone between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police. The Cypriot Chief of Police had rejected this as constituting a move towards recognising a “pseudo-state” which provided refuge to fugitives. It was true that UNFICYP’s arguments for the meetings of the technical committees was valid in that there was a risk that the village of Pyla would become a safe haven for criminals. This could be dealt with, however, through more efficient cooperation between UNFICYP and the Cypriot authorities. The Cypriot Chief of Police sought to obtain the Cypriot Government’s political position regarding this suggestion.

This note stated that as concerned a meeting held on 17 May 2006 between the SPA, the DSPA, and members of the Cypriot police and investigation team, the DSPA had raised his concerns as to an increased level of collaboration between Greek Cypriot and Turkish Cypriot criminals and their movements across the island. The DSPA had been informed generally about evidence that had been collected. He had also enquired whether:

- the Cypriot police intended to give the evidence to UNFICYP for forwarding to the “TRNC” authorities 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.

The Cypriot police had informed him that prosecution decisions were made by the Attorney-General. They had also informed him that they would cooperate with UNFICYP but not with the “TRNC” authorities or police. 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.

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 Superintendant 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 Superintendant 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 (see paragraphs 154, 155 and 156 below) 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.

The 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 any illegal entity.

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 concerning the suspects held in detention. According to the minutes of the meeting, the “TRNC” authorities needed the results of the DNA tests that had been carried out by the Greek Cypriot authorities, which were reluctant to transmit them on the pretext that this would constitute the [de facto] recognition of the “TRNC”. The “TRNC” authorities suggested these could be transmitted through UNFICYP. A “non-paper” dated 24 January 2005 was given to the envoy. This 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.”

On 25 January 2005 the “TRNC” Chief of Police held a meeting with the SPA, who gave details about the circumstances of the murders. According to the 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 Greek 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.

On 26 January 2005 a meeting was held between UNFICYP officials and “TRNC” functionaries, including the “TRNC” Deputy Prime Minister. According to the minutes, the question had been raised as to whether the Greek Cypriot authorities were willing to transmit the evidence. The “TRNC” Deputy Prime Minister had mentioned that if this was done 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.

On 31 January 2005 another meeting was held between UNFICYP and “TRNC” officials. According to the minutes, the UNFICYP officials had submitted Interpol’s Red Notices in respect of three of the suspects detained in the “TRNC”. They had mentioned that the Greek Cypriot authorities were reluctant to share the suspects’ DNA test results and did not want to collaborate with the “TRNC”.

At a meeting held on 7 February 2005 UNFICYP officials and the Prime Minister of the “TRNC” discussed the reluctance of the Greek Cypriot authorities to cooperate.

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 Greek 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 given to the Greek 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 court.

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 informed the latter that the courts of the British Sovereign Base areas did not have jurisdiction to try the suspects; however, the courts of the Republic of Cyprus could sit at the bases 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 given over to them because it was unacceptable to the “TRNC” authorities for the Greek Cypriot authorities to work alone on this matter.

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 in order to proceed further with the case file. The “TRNC” authorities needed more concrete evidence such as police investigation records and security camera records. The head of UNFICYP’s civil affairs unit promised to discuss this with the Greek Cypriot side.

Between 2005 and 2006, an exchange of correspondence concerning the investigation of the murders took place between the applicants’ representatives and UNFICYP officials. The text of the most relevant communications between UNFICYP and the applicants’ representatives is set out below:

In a communication to UNFICYP dated 19 December 2005, the applicant’s lawyer, requested, inter alia, the disclosure of any possible information relating to the UNFICYP’s efforts in the case, in particular, concerning the mistrust and lack of cooperation between the two sides. He wanted to ensure that all local remedies were properly exhausted and UNFICYP to help him to form a view in general terms about the attitude of both sides. If all legal means to bring about the prosecution of suspects of this heinous crime failed, he had instructions to bring an application before the Court against Turkey and Cyprus.

In a letter to the applicants’ representatives dated 23 February 2006 the SPA, stated, inter alia, the following:

“1. The Senior Police Advisor (SPA) of the UN police in Cyprus first became involved in the case on 16 January 2005 at the request of the Assistant Chief of Police of the Republic of Cyprus, ... who at that time briefed the Senior Police Adviser on the case. A request was made to the SPA to facilitate the exchange of information between the sides.

At no time was the SPA asked to operationally assist in the investigation of the murder or apprehend the suspects. If [she had been] asked this would not have been agreed to as this is not within UNFICYP’s mandate.

...(Illegible)

A copy of the preliminary investigation report prepared by the authorities in the south was provided to the Turkish Cypriot authorities, with the SPA’s facilitation. UNFICYP limited itself to a mediation role and therefore neither verified the contents nor kept a copy of the report.

At what point the trial venue became an issue cannot be ascertained as this was not within the control or knowledge of the SPA.

UNFICYP attempts to facilitate the exchange of information on criminal enquiries when asked to do so by one side or the other. ...

(Illegible)

As you may be aware, UNFICYP is not part of the internal justice system of the Republic of Cyprus and does not have executive power. UNFICYP is not in any sense an element of the “domestic remedies” available to victims of a crime in the [Republic of Cyprus]”.

In an e-mail sent by the DSPA to the applicants’ representative, Ms 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:

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.

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.”

In an e-mail sent by UNFICYP to the applicants’ representative Ms 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].”

The relevant parts of the UN Secretary-General’s reports on the UN operation in Cyprus are set out below:

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.

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) ...”.

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. ...

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.”

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. ...”

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.”


CASE OF MAKRADULI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicant was born in 1965 and lives in Skopje. At the time of the events he was vice-president of the SDSM opposition party and a member of parliament. The present applications concern criminal libel proceedings brought against the applicant by Mr S.M., who at the time was a senior member of the then ruling political party and at the same time head of the Security and Counter Intelligence Agency (“the Agency”). According to the Internal Affairs Act (sections 24 and 25), the head of the Agency is appointed by the Government and is accountable to it and the competent Minister. The impugned proceedings concerned statements made by the applicant at press conferences held at his political party’s headquarters.

On 14 December 2007 the applicant held a press conference that was broadcast by the main news programme of the A1 television channel, which had national coverage and was the most popular channel at the time. The relevant part of the applicant’s statement at the press conference reads as follows:

“In the year and a half he has formally been head of the Security and Counter Intelligence Agency and practically the head of the police, has M. (the plaintiff’s surname), abused his powers in order to influence the Macedonian Stock Exchange and have timely information to enable him to obtain a profit? Is there any truth in the rumours (гласини), which have become stronger, that police wiretapping equipment is being misused for trading on the Stock Exchange? ...”

The applicant submitted a transcript of the broadcast, which was also viewed at the trial (see paragraph 11 below). Besides the information described above, the transcript included a journalist suggesting that the applicant’s political party had asked the head of the Public Revenue Office whether Mr S.M. had paid taxes on his property, which had been assessed as being worth several million euros (EUR). The same programme also gave Mr S.M.’s reply, denying the allegations and stating that the money in question had been transferred to the respondent State from a foreign bank account. The transcript of the broadcast was published on the channel’s website on the same day under the headline: “SDSM: M. has wrongfully used wiretapping equipment”.

The applicant submitted articles published over the following days on the channel’s website, which described the subsequent exchange of comments and replies between the applicant and his political party, on the one hand, and various State institutions on the other. The articles stated that the applicant’s political party had asked the relevant institutions to investigate the origin of Mr S.M.’s assets and that the Ministry of the Interior had requested that it submit any evidence in support of its allegations.

On 1 February 2008 Mr S.M. brought private criminal proceedings accusing the applicant for libel, which was punishable at the time under Article 172 § 1 of the Criminal Code. He claimed that the applicant’s statement at the press conference (see paragraph 7 above) had contained defamatory allegations about him. The applicant did not submit any comments in reply.

The Skopje Court of First Instance (“the trial court”) scheduled twelve hearings. The applicant, who was legally represented, did not personally attend any of the scheduled hearings. Several hearings were adjourned owing to the applicant’s work in Parliament. At the trial, the court heard Mr S.M. and was provided with audio-and video-recordings of the programme on A1. The relevant part of the transcript of the hearing of 24 March 2009, when the court examined that material, reads as follows:

“... The court views ... the video and audio-recording of the news programme broadcast on A1 television on 14 December 2007 on which ... there is a photo of the plaintiff S.M. and the voice of a journalist who states the following:

‘The (SDSM) ask(s) whether the head of the (Agency), S.M., earned hundreds of thousands of euros by misusing police wiretapping equipment for trading on the Stock Exchange. Their suspicions are based on a declaration of assets (анкетен лист), which S.M. submitted half a year ago, in which he specified that he possessed shares valued at EUR 300,000. SDSM ask(s) whether M. obtained any of that property during the nine months he has been in office, without submitting a declaration, and whether that was the reason for his failing to submit the declaration within the first nine months of his mandate’

The recording continues with a photograph of [the applicant] at a stand in front of the SDMS logo and states that [statement described in paragraph 7 above] ...

The video material continues with a commentary by the journalist stating that:

‘S.M. replied to the allegations by SDSM by saying that the money in question was linked to a lawful business which he had abroad’ and the tape continues with the plaintiff’s statement ...”

The defence did not submit any evidence (including the evidence described in paragraphs 8 and 9 above). In the concluding remarks, the applicant’s lawyer stated that the applicant had made the impugned statement in an interrogatory form and as the vice-president of an opposition political party, which had the role of expressing concerns about and assessing the work of State officials.

On 3 November 2009 the trial court, sitting as a single-judge (Judge V.M.), found the applicant guilty of defamation and fined him EUR 1,500 with seventy-five days’ imprisonment in default. It also ordered him to pay court fees of EUR 30 and a further EUR 230 to cover Mr S.M.’s costs. The court further ruled that the operative part of the judgment should be published at the applicant’s expense via A1 television’s news programme. The relevant parts of the judgment read as follows:

“... The accused is the vice-president of SDSM ...

... [the applicant] said [the words described in paragraph 7 above] from a podium which had the SDMS logo behind it ...

... a statement ... must contain certain facts and ... be false ... The fact of that which ... is expressed or disseminated being false constitutes the core of the criminal offence of libel. Consequently, a victim is not required to prove that a defamatory statement is false, rather the accused is obliged to prove (the veracity of) what was said ...

... based on the audio and video material to hand the court finds that [the applicant] made statements about [Mr S.M.] in a form capable of persuading an ordinary viewer ... that they are truthful ...

... the court does not deny that questions can be put to and answers sought from State officials ... It is true that every person, including a member of a political party, as is [the applicant], has the right to put questions of public interest, to criticise the work of the Government and to express concerns about someone who holds the highest office in the executive. This makes the victim a ‘legitimate target’ of constructive criticism and public debate, but not of statements and assertions that had no factual basis, as in the present case.

... the court cannot accept, as contrary to the evidence, [the applicant’s] defence that the allegations were made in an interrogatory form (in an attempt) to obtain an answer from the victim as a State official. (Given) the manner in which the applicant expressed his allegations and other circumstances, the court has found that the [applicant’s] allegations are false and (represent) an assertion made in an interrogatory form, which have had a considerable effect on the claimant’s reputation and dignity. The defence cannot rely on Article 176 of the Criminal Code and (claim) that the (impugned) expression should have been examined in the context of the position he held, namely vice-president of an opposition political party. Such a status does not entitle him to express or disseminate untruthful allegations which are detrimental to the reputation and dignity of a third party.

... the court considers that the fact that [the applicant] has already been convicted by a final judgment of the same offence is an aggravating factor ...”

On 11 May 2010 the Skopje Court of Appeal, sitting as a three-judge panel composed of Judges M.S., L.I.Sh. and S.K., upheld the trial court’s judgment, finding no grounds to depart from the established facts and the reasoning.

Based on legislative amendments of November 2012, on 12 February 2013 (see paragraph 36 below) the trial court stayed the execution (се запира постапката за извршување на санкција) of the sanction (a fine) imposed on the applicant.

The applicant paid Mr S.M.’s costs for the criminal proceedings. He did not pay the court fees and did not publish the trial court’s judgment via A1, which ceased to exist in 2011.

The applicant lodged a constitutional appeal with the Constitutional Court in which he complained that his conviction had violated his right to freedom of expression. He reiterated his arguments that he had been punished for a question that he had raised at a press conference that had been held on behalf of his political party. The question had been addressed to the public and had been based on information submitted to his political party about suspected irregularities in the work of a State official. The aim had been to stimulate public debate on whether the official had been diligent in performing his official duty.

By a decision of 23 February 2011 (served on the applicant on 30 March 2011), the Constitutional Court by a majority dismissed the applicant’s appeal. It noted that he had not attended any of the scheduled hearings and held that freedom of expression was not absolute and could be restricted in accordance with the law. In that connection, it referred to Article 172 of the Criminal Code, which punished the dissemination of untrue information that could affect the reputation and dignity of a third party. The court further held that:

“The way in which [the applicant] expressed his opinion (мислење) in public concerning the performance of public duties by a public official (in an interrogatory form, as a member of an opposition political party, from a political party’s podium (говорница), the consequences of his public action ...), without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds that public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).”

In comments submitted in reply to the Government’s observations (November 2015), the applicant informed the Court that Mr S.M. had brought civil proceedings against him after his conviction, seeking compensation for non-pecuniary damage. The claim was examined at three levels of jurisdiction. By a final judgment of 9 April 2014 the applicant was ordered to pay 550,000 Macedonian denars (MKD) plus interest in respect of non-pecuniary damage and MKD 46,180 for the trial costs incurred by Mr S.M. in the compensation proceedings.

On 9 September 2007 the applicant held a press conference at SDSM’s offices regarding the public sale of State-owned building land in the central area of Skopje, where the construction of a hotel was planned. It was broadcast on local television news. According to a transcript of the entire press conference (evidence not submitted to the criminal courts), the applicant presented the events involved and information obtained from the State authorities regarding the sale in question. He further detailed the conclusions of research done by his political party, showing that the company that had been selected was incorporated in the respondent State at the same address as O. Holding (a local company) and was partly owned by a company which had business ties with O. Holding. In that connection, he alleged that a deal had been done so that “the land would be given to people who had close family or party ties” with the Prime Minister. As described in the trial court’s judgment (see below), the applicant stated that:

“The attractive location behind the ‘Ramstor’ shopping mall planned for the construction of a hotel was granted to a company supported (зад која стои) by O. Holding ... After the revelation of this megascandal, the biggest dilemma is whether the Academy Award for the most corrupt politician should be given to the Prime Minister or his cousins? To those who created or to those who carried out the deal?”

By a press release of the same date (9 September 2007) sent “in relation to the press conference held by the political party SDSM and with a view to provide the public with objective and correct information” the Ministry of Transport and Communication informed the media about the procedure and the selected company.

In reply to a request for information, SDSM notified the public prosecutor on 1 October 2007 about the company that had been selected (it was registered at the same address as O. Holding and its manager was a former O. Holding employee), alleging that it had not met the requirements of the sale. It further requested that the public prosecutor investigate whether the transaction had been in conformity with the Anti-Corruption Act.

On 19 September 2007 Mr S.M. brought private criminal charges, accusing the applicant of making (see paragraph 20 above) defamatory allegations about him. He denied ever having had any connection, private or professional, with the public sale of the land. He had also not signed the sale contract with the company that had been chosen. The applicant did not submit any comments in reply.

The trial court scheduled seventeen hearings. The applicant was represented by a lawyer, but did not attend any of the scheduled hearings in person. Some of the scheduled hearings were adjourned because the court bailiff was unable to serve summonses on the applicant. At the trial, the court heard Mr S.M. and viewed audio and video material of television coverage of the applicant’s statement. The defence did not submit any evidence, not even the information submitted to the public prosecutor (see paragraph 22 above).

On 23 February 2011, after one remittal, the trial court, sitting as a single-judge (Judge D.G.I.), convicted the applicant of defamation. It fined him EUR 1,000 with one hundred days’ imprisonment in default, ordered him to pay a court fee of EUR 30 and a further EUR 375 to cover Mr S.M.’s trial costs. Relying on the latter’s testimony, the court held that the applicant’s allegations had concerned Mr S.M., regardless of the fact that he had not been identified by name. That was because the applicant had previously given false statements about Mr S.M. and had often referred to him as “the Prime Minister’s cousin”. Mr S.M. admitted that he had had contact with the managers of O. Holding, although that had been as friends. He had had no cooperation with them in business terms or been involved in any way in the construction of the hotel.

The relevant parts of the trial court’s judgment read as follows:

“... the court considers ... that [the applicant’s] [statement described in paragraph 20 above] could have a considerable effect on the complainant’s reputation and dignity ... since he is the holder of a public office and (such) statements are disseminated quickly and aggressively in public.

That the complainant was not identified by his full name by the [applicant] is irrelevant since the relevant circumstances clearly and unequivocally suggest that the matter concerned [Mr S.M.]. Furthermore, the news presenter identified the complainant by his surname.

... The [applicant’s] assertion, (which he made) as vice-president of a political party, contained untrue allegations about the complainant susceptible of violating his honour and reputation ... [The statement in question] was not substantiated with any evidence because the private complainant, as head of the Agency, does not have the competence to participate in the public sale of State-owned land and the accused did not present any evidence that [Mr S.M.] was privately involved in the sale transaction in question ...”

On 18 May 2011 a three-judge panel (Judges Z.N., L.I.Sh. and G.S.) of the Skopje Court of Appeal dismissed an appeal by the applicant in which he had complained, inter alia, that the complainant had not been identified in his statement, which had been made in an interrogatory form and in a political context and, accordingly, not punishable, as specified in Article 176 of the Criminal Code (see paragraph 34 below). The court upheld the trial court’s judgment, finding that the applicant had made a false assertion (тврдење со невистина содржина) about the complainant. It continued:

“It is a statutory presumption that a statement of fact harmful to the honour and reputation of a third party is untrue. The burden of proof therefore rests with the accused to prove that the assertion is true. Accordingly, [the applicant] was required to prove that his statement was true, which is not the case ... The contents of the statement, the time, place and way in which it was given imply that it was serious and that it could objectively create a perception in the minds of third parties about certain facts. This court finds [the statement] defamatory since the factual assertion contained therein was able objectively to affect the reputation and dignity of the private complainant.”

On 12 February 2013 the trial court stayed the execution of the fine it had imposed (see paragraph 36 below). The applicant paid the court fees and the trial costs incurred by Mr S.M., who did not claim compensation for damage in respect of this criminal conviction for defamation.

The applicant lodged a constitutional appeal with the Constitutional Court in which he claimed that as a representative of a political party he had been required to bring to light information that had been brought to his attention. He had not made a factual statement but had raised a question regarding allegations of corruption.

By a decision of 12 September 2012 (served on the applicant on 1 October 2012) the Constitutional Court unanimously dismissed the applicant’s constitutional appeal for protection of the right to freedom of expression. The court held that:

“In the concrete case, the court ... punished [the applicant] ... as a necessary measure for the protection of the reputation, dignity and authority of another person. That was because [the applicant], by relying on freedom of public expression, interfered with the protected right of another person, namely Mr S.M ...

[The applicant] is a member of parliament and vice-President of the SDSM and he made the statement in SDSM’s headquarters (if the statement had been given in Parliament, he would have enjoyed immunity and private charges would not have been possible). Although freedom of expression is important for all, it is particularly important for representatives of the people ... Therefore, interference with a Member of Parliament’s freedom of expression calls for the closest scrutiny by the court.

Analysis must be made ... of whether (the applicant’s) conviction and sanction represent a justified restriction of his rights and freedoms ... namely whether the courts struck a fair balance between the need to protect the reputation and dignity of the victim and [the applicant’s] freedom of public expression. The freedom of political debate is not of an absolute nature ... the court notes that the impugned statement concerns the public sale of State-owned building land ... and should be considered in the context of a debate concerning an issue of public interest, which in particular was of prime political interest ...

The court considers that the veracity of the statement ... was of primary importance for the courts. Those courts ... established that [the applicant’s] statement was not true or that there was no evidence to prove the contrary.

... the court has the right and duty to assess whether the courts enabled [the applicant] to prove the veracity of (his) statement. In this connection the court finds that [the applicant] was able, during the entire proceedings, to present evidence as to the veracity of his statement. In the absence of proof to confirm the veracity (of the statement) or the existence of a strong basis for it to be regarded as truthful, the court must accept the courts’ findings that the statement was false.

Despite the fact that the statement is part of a public debate, the question is whether (it) ... had any impact or was relevant for the public as a contribution to a better understanding of the issue subject to public debate ...

The way in which the (applicant) expressed his opinion (мислење) in public concerning the performance of a public office by a public official (in an interrogatory form, as a member of an opposition party, from the podium (говорница) of the political party, the consequences of his public action ...) without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds the public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).”

By a judgment of 20 May 2008 the trial court, sitting as a singlejudge (Judge D.G.I.), had found the applicant guilty of making defamatory allegations about the then Minister for Transportation and Communications regarding the public sale of the same State-owned land subject to application no. 24133/13 above. The applicant was convicted and fined EUR 1,000 for the following statement, which was made at a press conference on 12 September 2007 at the offices of his political party:

“... by selling land to a company that does not fulfil the (statutory) conditions, Minister J. obviously committed a criminal offence-abuse of office. We therefore expect that the public prosecutor will immediately lodge an indictment”.

As explained in the judgment, the court established that when the applicant had made the statement, the procedure for the public sale of the land was still ongoing, namely the relevant standing committee within the Ministry had not yet submitted its proposal to the Minister about the best bidder. The Minister had then granted the land to the best bidder in December 2007. Furthermore, several institutions, which had reviewed the work of the committee, had not found any irregularities. The court did not accept the applicant’s defence (he did not attend any of the scheduled hearings) that his statement had been an expression of a reasonable suspicion about the public sale of the land. The court refused the following defence applications: to examine a member of the standing committee; to admit committee minutes in evidence regarding the public sale; and to hear information from the public prosecutor about the committee’s work. It held that the proposed evidence concerned the committee’s work which was not the subject of the proceedings. A three-judge panel of the Skopje Court of Appeal (Judges M.S., L.I.Sh. and V.Dz.) upheld the lower court’s judgment. Both courts considered that the applicant had made the statement in his own name and not on behalf of his political party.