European Court of Human Rights - Guzëlyurtlu and Others v. Cyprus and Turkey - Application no. 36925/07

giurisprudenza e prassi internazionale - international case-law and practice

Data – Date :

29/01/2019

Note – Notes:

Ruling:

For these reasons, the Court, […] Holds, unanimously, that there has been a violation by Turkey of Article 2 of the Convention under its procedural limb, on account of the failure to cooperate.

Reference to obligations of criminalization:

Paragraph 188. In the light of the above-mentioned case-law it appears that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law (e.g. under provisions on universal jurisdiction or on the basis of the active or passive personality principle), the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the Court (see, mutatis mutandis, Markovic and Others, cited above, §§ 54-55).

Paragraph 189. The Court would emphasise that this approach is also in line with the nature of the procedural obligation to carry out an effective investigation under Article 2, which has evolved into a separate and autonomous obligation, albeit triggered by acts in relation to the substantive aspects of that provision (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 132, ECHR 2013). In this sense it can be considered to be a detachable obligation arising out of Article 2 and capable of binding the State even when the death occurred outside its jurisdiction (see, mutatis mutandis, Šilih, § 159, in relation to the compatibility ratione temporis).
190. Where no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, “special features” in a given case will justify departure from this approach, according to the principles developed in Rantsev, §§ 243-44. However, the Court does not consider that it has to define in abstracto which “special features” trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.

Norme penali italiane rilevanti – Relevant italian rules:

art. 2 ECHR

Parole chiave – Keywords:

Cooperazione Internazionale - International Judicial Cooperation, Corte Europea dei Diritti Umani - European Court Of Human Rights, Giurisdizione - Jurisdiction, Obbligo di Incriminazione Implicito - Implicit Criminalization Obligation, Trattato - Treaty