ANDRONICOU AND CONSTANTINOU v. CYPRUS



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 25052/94

Andreas and Paraskevoula Andronicou

and Gregoris and Yiolanda Constantinou

                            against

                            Cyprus

                   REPORT OF THE COMMISSION

                   (adopted on 23 May 1996)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-11) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 12-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-156). . . . . . . . . . . . . . . . . . . . .4

     A.   Introduction

          (paras. 17-19). . . . . . . . . . . . . . . . . . .4

     B.   The early phases of the incident

          (paras. 20-48). . . . . . . . . . . . . . . . . . .4

     C.   The rescue plan

          (para. 49). . . . . . . . . . . . . . . . . . . . .8

     D.   Later phases of the incident

          (paras. 50-79). . . . . . . . . . . . . . . . . . .9

     E.   Armed intervention - Deaths

          of Elsie Constantinou and Lefteris Andronicou

          (paras. 80-98). . . . . . . . . . . . . . . . . . 14

     F.   The immediate aftermath

          (paras. 99-102) . . . . . . . . . . . . . . . . . 17

     G.   The Commission of Inquiry

          (paras. 103-107). . . . . . . . . . . . . . . . . 17

     H.   Expert evidence before the Commission of Inquiry

          (paras. 108-133). . . . . . . . . . . . . . . . . 18

     I.   Findings of the Commission of Inquiry

          (paras. 134-150). . . . . . . . . . . . . . . . . 23

     J.   Subsequent Developments

          (paras. 151-156). . . . . . . . . . . . . . . . . 26

III. OPINION OF THE COMMISSION

     (paras. 157-200) . . . . . . . . . . . . . . . . . . . 28

     A.   Complaints declared admissible

          (para. 157) . . . . . . . . . . . . . . . . . . . 28

     B.   Points at issue

          (para. 158) . . . . . . . . . . . . . . . . . . . 28

     C.   As regards Article 2 of the Convention

          (paras. 159-189). . . . . . . . . . . . . . . . . 28

     1.   General considerations

          (paras. 160-162). . . . . . . . . . . . . . . . . 28

     2.   The obligation to protect the right to life

          by law in Article 2 para. 1

          (paras. 163-164). . . . . . . . . . . . . . . . . 30

     3.   Requirements of Article 2 para. 2

          (paras. 165-189). . . . . . . . . . . . . . . . . 30

          CONCLUSION

          (para. 190) . . . . . . . . . . . . . . . . . . . 34

     D.   As regards Article 6 para. 1 of the Convention

          (paras. 191-197). . . . . . . . . . . . . . . . . 35

          CONCLUSION

          (para. 198) . . . . . . . . . . . . . . . . . . . 36

     E.   Recapitulation

          (paras. 199-200). . . . . . . . . . . . . . . . . 36

PARTLY CONCURRING AND PARTLY DISSENTING OPINION

BY MR. L. LOUCAIDES . . . . . . . . . . . . . . . . . . . . 37

PARTLY DISSENTING OPINION BY MR. C.L. ROZAKIS . . . . . . . 41

PARTLY DISSENTING OPINION BY MM. C.A. NØRGAARD

AND G. JÖRUNDSSON . . . . . . . . . . . . . . . . . . . . . 42

PARTLY DISSENTING OPINION BY MR. H.G. SCHERMERS . . . . . . 43

PARTLY DISSENTING OPINION BY MM. J.-C. GEUS and C. BÎRSAN . 45

APPENDIX:      DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 46

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   All applicants are Cypriot citizens. The first applicant was born

in 1938, he is living in Paphos and is a farmer by profession. The

second applicant was born in 1961, she is living in Paphos and is a

housewife by occupation. The third applicant was born in 1945, he is

living in Limassol and is a carpenter by profession. The fourth was

born in 1947, she is living in Limassol and is a housewife by

occupation. The first two applicants were the father and sister of

Lefteris Andronicou, deceased. The third and fourth applicants were the

parents of Elsie Constantinou, deceased. All applicants were

represented before the Commission by Mr. M. Kyprianou, a barrister

practising in Nicosia, Cyprus.

3.   The application is directed against Cyprus. The respondent

Government were represented by their Agent, Mr. A. Markides, the

Attorney General of the Republic of Cyprus.

4.   The case concerns the use of lethal force by the security forces

which resulted in the deaths of Lefteris Andronicou and Elsie

Constantinou and the possibility for the families of the deceased to

institute proceedings for damages in this connection. The applicants

invoke Articles 2 and 6 para. 1 of the Convention.

B.   The proceedings

5.   The application was introduced on 22 August 1994 and registered

on 31 August 1994.

6.   On 17 October 1994 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on 4 January 1995.

The applicants replied on 13 February 1995. On 20 January 1995, the

Commission granted the applicants legal aid for the presentation of

their case.

8.   On 10 April 1995 the Commission decided to hold a hearing of the

parties. The hearing was held on 5 July 1995.  The Government were

represented by their Agent, Mr. A. Markides, , Attorney General of the

Republic of Cyprus, Mrs. L. Koursoumba, Senior Counsel in the Law

Office of the Republic of Cyprus, Mrs.  T. Polychronidou, Counsel in

the Law Office of the Republic of Cyprus and Mrs. Marianna Santama-

Patsalidou of the Ministry of Justice and Public Order. The applicants

were represented by Mr. M. Kyprianou, Ms. M. Kyrmizi and

Mr. M. Kyprianou, all of them barristers practising in Nicosia, Cyprus.

9.   On 5 July 1995 the Commission declared the application

admissible.

10.  The text of the Commission's decision on admissibility was sent

to the parties on 14 September 1995. The Government was invited to

submit a copy of the transcript of the proceedings before the

Commission of Inquiry which examined the case at the domestic level.

The parties were also invited to submit such further information or

observations on the merits as they wished. The Government submitted the

transcript of the proceedings on 21 September 1995. It also submitted

further observations on the merits on 3 November 1995, to which the

applicants replied on 28 November 1995.

11.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

12.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          MM.  S. TRECHSEL, President

               C.L. ROZAKIS

               C.A. NØRGAARD

               E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               H.G. SCHERMERS

               F. MARTINEZ

          Mrs. J. LIDDY

          MM.  L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               N. BRATZA

               E. KONSTANTINOV

               A. PERENIC

               C. BÎRSAN

13.  The text of this Report was adopted on 23 May 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

15.  The Commission's decision on the admissibility of the application

is annexed hereto.

16.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   Introduction

17.  The events in this case have been surrounded with some

controversy and, although the case has been fully examined at the

domestic level by a Commission of Inquiry, several factual issues are

still in dispute between the parties.

18.  The Commission has had the benefit of examining a full transcript

of the proceedings before the Commission of Inquiry. It has also

examined a video recording of the last phase of the incident made by

a journalist on the spot, a set of photographs taken and a video made

by the police after the incident and the report of the state

pathologist. All these pieces of evidence had been at the disposal of

the Commission of Inquiry.

19.  The evidence before the Commission as well as the findings of the

Commission of Inquiry are summarised in the section below. Insofar as

there is need to resolve conflicts of evidence in the determination of

issues under the Convention, the Commission's findings appear in its

Opinion (see paras. 157-212).

B.   The early phases of the incident

20.  Lefteris Andronicou and Elsie Constantinou, at the time thirty-

three and twenty-two years old respectively, were engaged to be

married. On 22 December 1993, when their engagement was announced in

the local press, they were living together in Lefteris Andronicou's

flat, which was situated on the ground floor of a block of flats,

called Trifonos Court, in Chloraka, Paphos.

21.  On 24 December 1993 at around 8:30 in the morning, three of

Lefteris Andronicou's neighbours, D. Papapetru, G. Georgiu and

H. Hrisanthu, heard a woman calling for help from inside Lefteris

Andronicou's flat. Initially, they decided not to interfere and

D. Papapetru and G. Georgiu left. However, as the woman continued to

shout "Stop beating me", H. Hrisanthu decided to call A. Trifonos, the

owner of the block of flats, and the third applicant,

Elsie Constantinou's father. At one stage H. Hrisanthu saw a woman

trying to jump from the window and somebody pulling her inside. At

around 10:30 he called the Paphos police station.

22.  Two police officers of the minor offences department,

K. Kleanthus and Z. Psathitis, were immediately dispatched.

K. Kleanthus rang Lefteris Andronicou's bell, but did not get an

answer. When he announced that he was a police officer, he heard a

woman calling "Lefteris leave the gun aside; what are you going to do?"

23.  The two officers withdrew and called the Paphos police station

on the radio. At that stage D. Papapetru and G. Georgiu returned to the

scene and saw a girl getting out of Lefteris Andronicou's flat and

signalling to them. Then she went in the flat again. They were not in

a position to say whether she returned of her own will or whether

somebody pulled her inside.

24.  At around 11:30 I. Hatzipashalis, the deputy head of the Paphos

Criminal Investigations Department (hereinafter C.I.D.), together with

A. Stavrinidis and two other police officers arrived on the scene.

I. Hatzipashalis knocked on the door and spoke with Lefteris

Andronicou, who told him that he had quarrelled with Elsie Constantinou

and that they had beaten each other. He also heard Elsie Constantinou

asking to be let out. Then he heard Elsie Constantinou asking Lefteris

Andronicou why he was charging the gun and pointing it at her.

I. Hatzipashalis tried to calm Lefteris Andronicou down by telling him

that many couples quarrel and then make up without the help of the

police. However, when he approached the window, Lefteris Andronicou

threatened that he would fire at him. I. Hatzipashalis asked Lefteris

Andronicou to let him see Elsie Constantinou, specifying that, if Elsie

Constantinou told him that she had no complaint, he would leave.

Lefteris Andronicou did not reply.

25.  D. Papapetru, having obtained the authorization of

I. Hatzipashalis, succeeded in engaging Lefteris Andronicou in a

conversation. Lefteris Andronicou asked him for some cigarettes,

telling him that "afterwards he would think what he should do and would

open the door". D. Papapetru pushed some cigarettes under the door. At

one stage Elsie Constantinou cried to D. Papapetru that Lefteris

Andronicou was pointing the  gun at her and that he was going to shoot

her. Later on Lefteris Andronicou drew the curtain and D. Papapetru saw

him holding a hunting gun.

26.  I. Hatzipashalis, A. Stavrinidis, and D. Papapetru continued

their efforts to persuade Lefteris Andronicou to liberate Elsie

Constantinou and D. Papapetru gave Lefteris Andronicou cigarettes

again. However, as they did not obtain any results, I. Hatzipashalis

decided to inform A. Nikolaidis, the deputy police director of Paphos,

and G. Georgiagis, the head of the Paphos C.I.D.

27.  The deputy police director of Paphos, A. Nikolaidis, arrived on

the scene at around 13:00. He talked to Lefteris Andronicou, who asked

in an angry manner for the police to withdraw. A. Nikolaidis promised

Lefteris Andronicou help and protection and invited him to state his

claims. Lefteris Andronicou repeated that he just wanted the police to

go. Elsie Constantinou started shouting for help, claiming that she was

afraid that her life was in danger. She also claimed that Lefteris

Andronicou was pointing his gun at her. A. Nikolaidis called

D. Konstantinidis, the police director of Paphos.

28.  In the meantime the third applicant, Elsie Constantinou's father,

arrived in Trifonos Court together with Andreas Onufriu, Elsie

Constantinou's cousin. They found there Antonis Onufriu, another cousin

of Elsie Constantinou, who had also made an attempt to persuade

Lefteris Andronicou to release the young woman. A. Nikolaidis started

gathering information concerning the relationship of Lefteris

Andronicou and Elsie Constantinou. It was established that they were

living together. As it emerged, however, in the course of the

proceedings before the Commission of Inquiry, the police was not aware

during the operation that Elsie Constantinou and Lefteris Andronicou

were engaged to be married.

29.  D. Konstantinidis, the police director of Paphos, arrived in

Trifonos Court at around 14:15. He told Lefteris Andronicou that he had

nothing to fear, as there would be no consequences. Lefteris Andronicou

demanded once more the complete withdrawal of the police.

30.  At around 15:00 I. Hatzipashalis, the deputy head of the Paphos

C.I.D., ordered another policeman to obtain an arrest and search

warrant on the ground that Lefteris Andronicou was holding Elsie

Constantinou against her will threatening her with a hunting gun.

31.  D. Konstantinidis, the police director of Paphos,  discussed the

situation with Elsie Constantinou's father in H. Hrisanthu's shop,

which was next to Lefteris Andronicou's flat and which was being used

as an operation room. As A. Nikolaidis, the deputy police director of

Paphos, confirmed before the Commission of Inquiry, Elsie

Constantinou's father suggested that the police should withdraw and

leave the family to deal with the problem on their own.

32.  D. Konstantinidis also asked for the assistance of G. Poliviu,

for whom Lefteris Andronicou used to work and who was present.

G. Poliviu talked to Lefteris Andronicou and found out that Lefteris

Andronicou's telephone was not functioning. G. Poliviu, having obtained

D. Konstantinidis's approval, left outside Lefteris Andronicou's window

a telephone which belonged to H. Hrisanthu. It was later established

that the telephone had a loudspeaker facility.

33.  D. Konstantinidis called the fourth applicant, Elsie

Constantinou's mother, and persuaded her to come. He also asked Elsie

Constantinou's father to talk to Elsie Constantinou, but the applicant

did not accept. At a certain stage, Lefteris Andronicou requested from

G. Poliviu cigarettes and food, specifying that Elsie Constantinou was

hungry and must have something to eat.  D. Konstantinidis decided that

no food should be given to him. G. Poliviu left outside Lefteris

Andronicou's window some cigarettes.

34.  D. Konstantinidis had several telephone conversations with

Lefteris Andronicou promising him help. He also talked to Elsie

Constantinou on the phone who said that she was being held against her

will since 23:00 the previous night. D. Konstantinidis concluded that

Lefteris Andronicou did not want to negotiate. At around 16:50 he

called A. Potamaris, the chief of police, and explained the situation.

He volunteered to conduct a rescue operation should the need arise.

A. Potamaris, however, decided to dispatch to Chloraka the platoon of

the Police Special Forces (Mihanokiniti Monada Amesis Drasis -

hereinafter "MMAD") which, in his opinion, was specially trained for

such type of action.

35.  At a certain stage Elsie Constantinou's mother arrived, but

Lefteris Andronicou refused to talk to her on the phone. Elsie

Constantinou's mother suggested that the police should leave and let

the family handle the situation.

36.  Shortly before 17:00 G. Georgiadis, the head of the Paphos

C.I.D., arrived. A great number of persons had already gathered at the

scene and the area around Lefteris Andronicou's flat had been cordoned

off. At around 17:00, the police director of Paphos, D. Konstantinidis,

went away leaving his deputy, A. Nikolaidis, in charge.  A. Nikolaidis

testified before the Commission of Inquiry that it was the first time

in his career that he had been involved in such an operation or such

negotiations.

37.  At around 17:10 A. Potamaris, the chief of police, ordered

H. Mavros, to lead to Chloraka the specially trained platoon of MMAD

of which he was in charge.

38.  A. Nikolaidis, the deputy police director of Paphos, repeatedly

tried to communicate with Lefteris Andronicou, but the telephone was

engaged. At a certain point Lefteris Andronicou's sister and niece

arrived and talked to Lefteris Andronicou through the door. Lefteris

Andronicou told them that he was afraid of the police. Elsie

Constantinou confirmed that this was so.

39.  At around 18:00 Lefteris Andronicou called A. Hatzimitsi, a

general practitioner whom he had consulted on occasions during the past

three months. He told her that he had beaten Elsie Constantinou up and

that there was police outside his flat. He said that he was going to

lose Elsie Constantinou. He asked the doctor to call his sister and

tell her that he had left money on the fridge. He specified that, after

he would have done what he intended to do, his sister might have health

problems and need the money. When A. Hatzimitsi tried to reason with

Lefteris Andronicou, he said that he did not want to talk. He warned

her that he would hang up on her if she tried to call him back.

A. Hatzimitsi called G. Poliviu, who had introduced Lefteris Andronicou

to her, and asked him to inform the police.

40.  At 18:10 A. Potamaris, the chief of police, called his deputy,

K. Papakostas and put him in charge of the operation. He also ordered

N. Konstantinu, the deputy director of MMAD, to go to Paphos.

41.  At 18:15 A. Potamaris, in the course of his daily telephone

conversation with the Minister of Justice and Public Order, informed

the latter of the incident.

42.  At around 18:30 Lefteris Andronicou agreed to talk with the

deputy police director of Paphos, A. Nikolaidis, on the phone. He told

A. Nikolaidis that Elsie Constantinou was finished for him, that she

had behaved very badly towards him and that he had lost her forever.

Lefteris Andronicou appeared to be concerned about Elsie Constantinou's

health and A. Nikolaidis offered to take her to the doctor. However,

Lefteris Andronicou refused, telling A. Nikolaidis that he should wait

until midnight. Lefteris Andronicou specified that, after celebrating

Christmas with Elsie Constantinou, A. Nikolaidis could come and get her

at 00:05. When A. Nikolaidis asked Lefteris Andronicou whether he meant

that he would let Elsie Constantinou free, Lefteris Andronicou did not

reply. He claimed that he was tired and hung up.

43.  At around 19:30 H. Mavros, the head of the MMAD platoon, arrived

on the scene together with three other officers of MMAD. He was briefed

by A. Nikolaidis, the deputy police director of Paphos, who told him

that Lefteris Andronicou was carrying a double-barrelled hunting gun.

It was later established that the gun could only contain two bullets

at a time. H. Mavros asked him whether there was any indication that

Lefteris Andronicou might be in possession of other weapons and

A. Nikolaidis replied that this possibility could not be excluded.

H. Mavros also discussed with N. Konstantinu, the deputy director of

MMAD, who was already there. H. Mavros noticed the presence of a great

number of bystanders which he considered "unacceptable". A. Nikolaidis

ordered some persons to be removed.

44.  H. Mavros asked A. Trifonos, the owner of the block of flats,

who had also previously tried to persuade Lefteris Andronicou to

release Elsie Constantinou, to show him the scene. H. Mavros visited

the flat above Lefteris Andronicou's as well as the flat next door,

which was identical to that of Lefteris Andronicou. A. Trifonos made

a sketch of Lefteris Andronicou's flat for him.

45.  The flat consisted of two rooms and a bathroom. The living room

was in the front, it measured 5 by 3,6 meters and had a door and a

window. There was a skylight above the door. The bedroom and bathroom

were in the back. They had one window each.

46.  At some point after 19:30 G. Poliviu told A. Nikolaidis, the

deputy police director of Paphos, that Lefteris Andronicou had told

Dr. A. Hatzimitsi on the phone that around midnight he would set Elsie

Constantinou free and commit suicide. A. Nikolaidis conveyed this

information to his director, D. Konstantinidis, and to the deputy chief

of police, K. Papakostas. K. Papakostas ordered A. Nikolaidis to act

as the principal negotiator, since he had gained Lefteris Andronicou's

confidence. He also told him to engage in the negotiations Dr. A

Hatzimitsi, as well as a psychologist or a psychiatrist and other

persons who could influence Lefteris Andronicou. Finally, A. Nikolaidis

and K. Papakostas discussed the possibility of administering soporifics

to Lefteris Andronicou.

47.  A. Nikolaidis called Lefteris Andronicou and told him that Elsie

Constantinou's mother and grand-mother wished to talk to him, but

Lefteris Andronicou refused. Then he called the district doctor in

order to find out where the psychiatrists of the Paphos hospital were.

He was informed that both psychiatrists lived in Limassol.

A. Nikolaidis also called the pharmacist of the Paphos hospital and

ordered drugs. P. Hatzimitsis, the pharmacist, testified that he had

provided one packet of 1 mg and one packet of 2 mg Lorezabam pills. The

hospital did not store 3 mg pills.

48.  Two police officers were dispatched to Dr. A. Hatzimitsi's

surgery. Dr. A Hatzimitsi discussed with them Lefteris Andronicou's

telephone call. In reply to their questions, she expressed the view

that Lefteris Andronicou did not have any psychological problems. She

also expressed doubts as to whether she could help, since Lefteris

Andronicou had already told her not to call him again.

C.   The rescue plan

49.  At around 20:00 H. Mavros went to the Paphos police station where

the rest of the MMAD platoon had arrived. According to the testimony

of the police witnesses before the Commission of inquiry the platoon

included two officers, whom the police witnesses described as "trained

negotiators". H. Mavros explained to the officers of the platoon the

plan, the aim of which was to rescue Elsie Constantinou and capture

Lefteris Andronicou. The key elements of the plan were surprise, speed

and accurate execution. As soon as the platoon would be placed outside

Lefteris Andronicou's flat, H. Mavros would inform the commanding

officer, via a link person. The commanding officer would in turn ask

the negotiator to call Lefteris Andronicou. While Lefteris Andronicou

would be busy talking on the phone, which was in the front room to the

left of the door, tear-gas would be thrown into the flat through the

three glass windows by four officers. Two other officers would  force

the door with a battering ram. Four men would enter the front room. The

first two would seize Lefteris Andronicou who would be expected to be

less than two meters away from the door. A third officer would seize

Elsie Constantinou. A fourth officer would enter the flat to provide

any form of assistance which might prove necessary. All communications

would be made by walkie talkie on a secure frequency. The members of

the platoon would carry their pistols and machine guns. They were

informed by their head, H. Mavros, that Lefteris Andronicou had a

double-barrelled hunting gun. They were also told that the possibility

could not be excluded that Lefteris Andronicou could be in possession

of other arms. They were instructed to use proportionate force and fire

only if Elsie Constantinou's or their own lives were in danger. If the

room was dark, they were to use the lights with which their machine

guns were equipped.

D.   Later phases of the incident

50.  At 20:40 the chief of police, A. Potamaris, had a meeting with

his deputy, K. Papakostas. It was decided that the deputy police

director of Paphos, A. Nikolaidis, should continue to conduct the

negotiations, that two additional negotiators should be sent and that

the police, after obtaining appropriate medical advice, should

administer soporifics to Lefteris Andronicou, if he asked for food.

51.   While the meeting between A. Potamaris and K. Papakostas was

still in progress and at around 20:50, the deputy police director of

Paphos, A. Nikolaidis, talked with Lefteris Andronicou on the phone

again. Lefteris Andronicou was very negative because of the media

coverage that the incident had received. He did not allow A. Nikolaidis

to talk to Elsie Constantinou. Elsie Constantinou shouted that Lefteris

Andronicou would kill her. N. Hatziharalambus, a police officer who

knew Lefteris Andronicou, also tried to persuade Lefteris Andronicou

to release Elsie Constantinou.

52.  The meeting between A. Potamaris and K. Papakostas ended at

21:00. K. Papakostas ordered two additional negotiators from the police

force to be dispatched to Chloraka. He also called the deputy police

director of Paphos, A. Nikolaidis, who informed him that he had not

been able to contact the psychiatrists of the Paphos hospital and that

Lefteris Andronicou would not talk to Elsie Constantinou's parents.

K. Papakostas ordered A. Nikolaidis to look for psychologists in the

private sector.

53.  At around 21:30 D. Konstantinidis, the police director of Paphos,

returned to the scene together with H. Mavros, the head of the MMAD

platoon. He was briefed by the deputy police director of Paphos,

A. Nikolaidis. He called the deputy chief of police K. Papakostas. He

also called Dr. A. Hatzimitsi who agreed to go to Trifonos Court.

54.  Then he saw H. Athinodoru, Lefteris Andronicou's last employer,

talking with Lefteris Andronicou on his mobile phone. H. Athinodoru had

already made various unsuccessful efforts to persuade Lefteris

Andronicou to release Elsie Constantinou. Lefteris Andronicou had

threatened that he would shoot Elsie Constantinou, if H. Athinodoru

tried to enter the flat.

55.  The police director of Paphos, D. Konstantinidis, interrupted the

conversation between H. Athinodoru and Lefteris Andronicou and

instructed H. Athinodoru to tell Lefteris Andronicou that they wanted

to help him. He specified that he had been authorised by his superiors

to promise Lefteris Andronicou that there would be no consequences if

he let Elsie Constantinou go. Lefteris Andronicou could leave by car,

together with Elsie Constantinou if he wished. H. Athinodoru conveyed

the message to Lefteris Andronicou.

56.  In the course of the second part of his conversation with

Lefteris Andronicou, H. Athinodoru threatened Lefteris Andronicou with

the possibility of being left to starve and being beaten up. This is

heard in the video recording. Moreover, D. Konstantinidis accepted

before the Commission of Inquiry that he heard such a statement being

made by H. Athinodoru. He also testified that H. Athinodoru talked to

Elsie Constantinou on the phone who said that Lefteris Andronicou had

been pointing his gun at her.

57.  Then D. Konstantinidis called the chief of police, A. Potamaris,

and told him about the telephone conversation between Lefteris

Andronicou and Dr. A. Hatzimitsi. In the meantime, H. Mavros returned

to the Paphos police station and led the MMAD platoon to a warehouse

situated 200 to 300 meters away from Lefteris Andronicou's flat, where

they could not be seen by the bystanders.

58.  Dr. A. Hatzimitsi arrived in Trifonos Court escorted by

G. Georgiadis, the head of the Paphos C.I.D. She talked with Lefteris

Andronicou from the operation room. She offered to help him end the

incident without any consequences. Lefteris Andronicou refused to let

her enter the flat, saying that he was afraid of the police. Having

obtained the authorization of the police director of Paphos,

D. Konstantinidis, Dr. A. Hatzimitsi made the following proposal to

Lefteris Andronicou. A car would be brought to his door, the police

would withdraw, Lefteris Andronicou would leave his gun and get in the

car alone or with Elsie Constantinou. The doctor, or any other person

whom Lefteris Andronicou wished to accompany him, could get in the car

as well. They could all leave together and go to another location to

discuss. Lefteris Andronicou refused. Elsie Constantinou intervened and

asked the doctor whether Lefteris Andronicou had psychological

problems. The latter replied that she was not aware of any such

problems. Lefteris Andronicou repeated that he was afraid of the police

and of the consequences. He insisted that he would let Elsie

Constantinou out of the flat at 00:00 to 00:05 and then he would commit

suicide. In the course of the telephone conversation, Lefteris

Andronicou and Elsie Constantinou quarrelled and Lefteris Andronicou

threatened Elsie Constantinou: "Sit down and do not move". He also told

the doctor not to call again because it made Elsie Constantinou

nervous. At one stage Dr. A. Hatzimitsi passed Lefteris Andronicou to

D. Konstantinidis who promised once again that there would be no

consequences.

59.  At 21:50 D. Konstantinidis, the police director of Paphos, called

the deputy chief of police,  K. Papakostas, and told him that Dr. A.

Hatzimitsi was of the view that Lefteris Andronicou had decided to kill

Elsie Constantinou and commit suicide. In the first statement she gave

to the police, Dr. A. Hatzimitsi confirmed that this was the view which

she had formed and conveyed to D. Konstantinidis. In a letter she

addressed to applicants' counsel on 28 December 1995, Dr. A. Hatzimitsi

claimed that, in the course of her telephone conversation with Lefteris

Andronicou, she had formed the view that he was intransigent and

"capable of doing harm to himself and Elsie". She further specified

that this was the personal opinion of somebody who was not a

psychiatrist. She also protested that the police had tried to attribute

to her more responsibility for the operation than she could have had.

In her testimony before the Commission of Inquiry, when under

examination by counsel for the police, Dr. A. Hatzimitsi adopted her

initial statement, specifying that that was her personal opinion.

60.  Then H. Athinodoru told D. Konstantinidis that Lefteris

Andronicou had asked on the phone for food. D. Konstantinidis told his

deputy, A. Nikolaidis, to call Lefteris Andronicou. A. Nikolaidis

called Lefteris Andronicou and two kebab pies (seftalia) were ordered.

61.  A person whom A. Nikolaidis could not identify had told

A. Nikolaidis that he had received a telephone call from Lefteris

Andronicou asking for a written assurance that he would not go to jail.

A. Nikolaidis called Lefteris Andronicou again, who told him that he

was afraid that he would go to jail. A. Nikolaidis told him that the

situation was not so serious and offered to enter the flat and hand

Lefteris Andronicou a written assurance that he would not go to jail.

However, Lefteris Andronicou told A. Nikolaidis not to be in a hurry;

he would enter the flat at 00:05. A. Nikolaidis told Lefteris

Andronicou that he would break the door down and enter the flat

unarmed. Lefteris Andronicou warned him that if he tried, he would kill

Elsie Constantinou and commit suicide. At a certain point, Elsie

Constantinou shouted that Lefteris Andronicou was not serious about

letting her go.

62.  Lefteris Andronicou's threats, combined with some information

that Lefteris Andronicou had wanted in the past to shoot a person who

had insulted Elsie Constantinou with his hunting gun, led A. Nikolaidis

to the conclusion that Lefteris Andronicou was planning to kill Elsie

Constantinou and commit suicide at around midnight.

63.  At 22:15 the police director of Paphos, D. Konstantinidis, called

the deputy chief of police, K. Papakostas, and requested his

authorization to administer soporifics. K. Papakostas called a doctor

in Nicosia hospital and the chief of police, A. Potamaris, who approved

the plan. D. Konstantinidis was duly informed.

64.  S. Zinonos, a police officer, testified before the Commission of

Inquiry that he had been ordered to bring some food for Lefteris

Andronicou at 22:20. Three to five minutes after he had left he was

called on the radio and the order was changed. I. Pavlu,  another

officer, claimed in his original statement to the police that

S. Zinonos had been ordered to bring food at around 22:40 and that the

order had been changed fifteen minutes later. Before the Commission of

Inquiry he specified that the times he had given were very approximate,

because he had not looked at his watch when S. Zinonos left. He had

merely estimated that this must have been the time. He also specified

that it was possible that the order had been changed eight to eleven

minutes after S. Zinonos's departure. S. Zinonos testified that it took

ten to fifteen minutes for the kebabs to be prepared.

65.  At 22:30 the head of the MMAD platoon, H. Mavros, called the

deputy chief of police, K. Papakostas, and explained to him the rescue

plan. K. Papakostas asked whether it had been envisaged to use

explosives to open the door and stun grenades. These options were,

however, discarded for fear that Lefteris Andronicou and Elsie

Constantinou might be hurt. It was also noted that it normally took

four seconds for the stun grenades to explode and that that might give

Lefteris Andronicou time to react.

66.  At 22:40 there was another meeting between the chief of police

and his deputy in the chief's house. The deputy chief, K. Papakostas,

told the chief, A. Potamaris, that Lefteris Andronicou was planning to

kill Elsie Constantinou and commit suicide. At 22:45 A. Potamaris

called the Minister who was of the view that "the police should decide

whether MMAD should conduct a rescue operation on the basis of their

appreciation of the situation at the time after having reviewed all

relevant information and eliminated all other possibilities". Then

K. Papakostas explained to A. Potamaris the rescue plan. A. Potamaris

instructed K. Papakostas to delay the involvement of MMAD as much as

possible to enable the efforts to persuade Lefteris Andronicou to

continue. The meeting ended at 23:00.

67.  When the food which Lefteris Andronicou had ordered arrived,

Dr. A. Hatzimitsi put in the pies the Lorezabam pills that

P. Hatzimitsis, the hospital pharmacist, had provided. Before the

Commission of Inquiry she testified that she had placed six 3 mg

Lorezabam pills in each pie. She also testified that earlier on it had

been suggested that another drug called Dormicum could be used, but

that the police did not have sufficient time to find such pills.

68.  The food was then delivered to Lefteris Andronicou by the deputy

police director of Paphos, A. Nikolaidis, who left it by the window.

All the police officers who testified on this issue agreed that the

food had been delivered around 23:00. Dr. A. Hatzimitsi's testimony

supported their version of events. Antonis Onufriu, Elsie

Constantinou's cousin, testified that the food had arrived at around

23:30. G. Poliviu, an ex-employer and friend of Lefteris Andronicou

claimed, in his original statement to the police, that the food had

arrived at 23:15. Before the Commission of Inquiry he testified that

the food had arrived between 23:30 and 23:40. H. Athinodoru Lefteris

Andronicou's last employer testified that the drugs had been put in the

food at around 23:10, immediately before he left the scene.

69.  The head of the MMAD platoon, H. Mavros admitted before the

Commission of Inquiry that he had not been aware that soporifics had

been administered to Lefteris Andronicou.

70.  At around 23:00 two additional negotiators arrived. Elsie

Constantinou was repeatedly heard screaming that Lefteris Andronicou

was going to kill her.

71.  After 23:00, the police director of Paphos, D. Konstantinidis,

held a meeting with his deputy, A. Nikolaidis, the head of the Paphos

C.I.D, G. Georgiadis, the deputy director of MMAD, N. Konstantinu, and

the head of the MMAD platoon, H. Mavros. They came to the conclusion

that Lefteris Andronicou was planning to kill Elsie Constantinou and

commit suicide at 00:00 or 00:05. As a result, there could be no

further negotiations and the MMAD platoon should take action. H. Mavros

affirmed that he was prepared to lead the operation.

72.  D. Konstantinidis, the police director of Paphos, accepted before

the Commission of Inquiry that, although some notes were being taken

during the incident, he had not been involved in this process. Neither

did he consult these notes during the final meeting or before.

A. Nikolaidis, the deputy police director of Paphos, made a similar

statement.

73.  Immediately after the meeting, the police director of Paphos,

D. Konstantinidis, called the deputy chief of police, K. Papakostas,

and told him that they were awaiting instructions from the headquarters

as to whether they should continue the negotiations or break into the

flat. If the instructions were to continue the negotiations and Elsie

Constantinou was nevertheless killed, responsibility would lie with the

headquarters. K. Papakostas testified that he received

D. Konstantinidis's telephone call at 23:10.

74.  H. Mavros left to inform his platoon about the new development,

namely the information that Lefteris Andronicou was planning to kill

Elsie Constantinou. The platoon was then moved closer to Lefteris

Andronicou's flat, behind the block of flats.

75.  The deputy chief of police, K. Papakostas, met with the chief,

A. Potamaris, in the latter's house. A. Potamaris agreed that MMAD

should be used. K. Papakostas called the police director of Paphos,

D. Konstantinidis, and informed him that the rescue plan had been

approved. Then K. Papakostas talked to the head of the MMAD platoon,

H. Mavros, who had in the meantime returned and the two men agreed that

the plan remained unchanged. Then K. Papakostas talked again to

D. Konstantinidis who had in the meantime given instructions that an

ambulance be dispatched to the scene. D. Konstantinidis had specified

that the lights of the ambulance and its siren should be switched off

so as not to alert Lefteris Andronicou. According to the evidence

presented to the Commission of Inquiry, the order for the ambulance

reached Paphos hospital at 23:45.

76.  H. Mavros asked for all bystanders to be pushed back and

D. Konstantinidis gave the relevant orders.

77.  After the final meeting of the police officers, E. Parmatzia,

Lefteris Andronicou's cousin, arrived in Trifonos Court with her

husband and her sister. E. Parmatzia claimed before the Commission of

Inquiry that she had received two telephone calls from Lefteris

Andronicou in the course of the day and that Lefteris Andronicou had

told her that he would open his door only if the police left. The

police director of Paphos, D. Konstantinidis, called Lefteris

Andronicou on the phone. Lefteris Andronicou talked to E. Parmatzia but

declined her offer to meet her. He also questioned her identity and

then, according to E. Parmatzia, D. Konstantinidis interrupted the

conversation.

78.  E. Parmatzia further testified that, when she talked to Lefteris

Andronicou on G. Poliviu's mobile phone five to six minutes later,

Lefteris Andronicou asked for the withdrawal of the police.

E. Parmatzia's husband testified that he had also talked to Lefteris

Andronicou on that occasion.

79.  According to a detailed telephone bill produced by G. Poliviu

before the Commission of Inquiry, three telephone calls were made from

his mobile phone to Lefteris Andronicou' phone that night, one at

23:18, one at 23:39 and one at 23:49. According to G. Poliviu, when he

last talked with Lefteris Andronicou, Lefteris Andronicou indicated

that he wanted to be left alone to prepare some coffee.

E.   Armed intervention - Deaths of Elsie Constantinou

     and Lefteris Andronicou

80.  Shortly before midnight the members of the MMAD platoon silently

took their positions around Lefteris Andronicou's flat. They were

filmed by the journalist who made the video recording.

81.  H. Mavros testified before the Commission of Inquiry that he

stood 60 meters away from the flat. Six officers were placed in front

of the flat (in the proceedings before the Commission of Inquiry these

were referred to as officers Nos. 1, 2, 3, 4, 5 and 6) and two at the

back (for the purposes of the inquiry officers Nos. 7, 8). Officers

Nos. 5 and 6, who would fire tear-gas into the living-room, were by the

front window. Officers Nos. 1 and 3 were placed on the right of the

door and officers Nos. 2 and 4 on the left. The two men with the

battering ram were placed opposite the door. Five other MMAD officers

took positions around the flat for security purposes.

82.  The police director of Paphos, D. Konstantinidis, testified that,

once the officers had taken their positions, he called the deputy chief

of police, K. Papakostas, on the phone once more at 23:55.

83.  H. Mavros testified that he called on his radio the link person.

According to H. Mavros, the link person called the commanding officer,

D. Konstantinidis, who ordered the deputy police director of Paphos,

A. Nikolaidis, to call Lefteris Andronicou. When H. Mavros was told by

the link person that A. Nikolaidis was talking with Lefteris

Andronicou, he gave the signal for the armed intervention.

84.  A. Nikolaidis testified that he called Lefteris Andronicou when

he was told to do so by D. Konstantinidis at 23:59 or 00:00. Lefteris

Andronicou said "Hello". Then A. Nikolaidis tried to say something but

he heard shootings. He shouted Lefteris Andronicou's name two or three

times but received no answer.

85.  Officers No. 1, 3 and 5 testified that they heard Lefteris

Andronicou's telephone ring three times. They considered that it was

the telephone call intended to distract Lefteris Andronicou. They did

not hear Lefteris Andronicou reply. Then they heard the telephone ring

again followed by the signal "Inside, inside, inside". According to

officer No. 1, there was a one-minute interval between the two

telephone calls.

86.  When the signal was given, officer No. 5 shot two tear-gas

bullets through the front window and then officer No. 6 sprayed the

living room with tear-gas. Officer No. 8 fired two tear-gas bullets

into the bathroom. Officer No. 7 inadvertently, as he subsequently

testified, fired two real, instead of tear-gas, bullets into the

bedroom.

87.  The door was broken and officer No. 1 entered the flat. In his

testimony, he claimed that he saw Lefteris Andronicou standing in front

of him, three to four meters away, with his gun pointed at him. Elsie

Constantinou was in front of Lefteris Andronicou and both appeared to

make a slight movement. Lefteris Andronicou' gun was over Elsie

Constantinou. Officer No. 1 moved and Lefteris Andronicou shot him on

the right shoulder. He fell back pushing officer No. 3 as well. Officer

No. 3 fell down.

88.  It was subsequently established that immediately after the first

shot Lefteris Andronicou fired a second one, which hit Elsie

Constantinou. In their testimony, officers Nos. 1, 2, 3 and 5 claimed

that they only heard one shot.

89.  Officer No. 2 testified that he saw Nos. 1 and 3 falling back.

He also heard officer No. 1 crying out "He shot me". He believed that

officer No. 1 had been seriously injured and that No. 3 had been

killed. He entered the flat three seconds later, having decided to use

his machine gun, as opposed to his pistol, because he needed light. He

switched on his gun-light and saw Lefteris Andronicou and Elsie

Constantinou in the diagonally opposite corner. Lefteris Andronicou's

knees were bent as if he was preparing to sit down. Elsie Constantinou

was in front of Lefteris Andronicou, facing Lefteris Andronicou.

Officer No. 2 could only see the left side of Lefteris Andronicou's

body. He did not notice whether Lefteris Andronicou had a gun but

believed that he did. He considered that he did not have time to

ascertain whether his belief corresponded to reality. He distinguished

Lefteris Andronicou and shot two to three times. Lefteris Andronicou

and Elsie Constantinou moved and officer No. 2 could not see Lefteris

Andronicou any longer. He moved to the right and could then see

Lefteris Andronicou's left side. Lefteris Andronicou was sitting on the

floor and Elsie Constantinou was covering the right side of his body.

Officer No. 2 shot again at Lefteris Andronicou several times. He

stopped shooting when Lefteris Andronicou was lying on the floor. He

wanted to make sure that Lefteris Andronicou was no danger to him or

Elsie Constantinou. Lefteris Andronicou's moves appeared menacing to

officer No. 2. Officer No. 2 further testified that all his shots were

aimed at the left side of Lefteris Andronicou's body, because this was

the only side he could see. He affirmed that he had been trained to

shoot to kill, when shot at. He did not exclude that he might have shot

one or two bullets when Lefteris Andronicou was already lying on the

floor. It was later ascertained that officer No. 2 shot 13 bullets.

90.  Officer No. 4 testified that he entered the flat after officer

No. 2 had fired the first bullets and had moved on. He saw Lefteris

Andronicou in the diagonally opposite corner sitting on the floor, his

legs stretched-out in front of him. Elsie Constantinou was lying on

Lefteris Andronicou' right shoulder. He did not notice whether Lefteris

Andronicou was holding a gun. When the firing was over, he saw Lefteris

Andronicou lying on the floor and Elsie Constantinou covering his right

side. He refused to answer any other questions in the Inquiry invoking

his right not to incriminate himself. It was later ascertained that he

fired 16 bullets.

91.  In the video recording, once the officers enter the flat, a small

number -approximately six- of distinct shots are heard. A burst of fire

follows. It was accepted by all parties that these were all single

shots, as opposed to automatic fire.

92.  Officer No. 1 testified that he re-entered the flat after

officers Nos. 2 and 4. He pointed his light at Lefteris Andronicou, who

was being lit up by the gun-lights of officers Nos. 2 and 4 who were

still shooting at him. As officer No. 1 entered the room, officer No. 2

was on his right and officer No. 4 on his left. He saw Lefteris

Andronicou sitting on the ground with his back against the wall. Elsie

Constantinou was covering part of Lefteris Andronicou's right side, her

face down. He did not count how many shots he heard. Neither did he

notice where Lefteris Andronicou's gun was. He testified that he had

been trained to shoot to kill, when shot at. He also testified that he

would not have stopped firing, even if it had been clear to him that

Lefteris Andronicou, when he was sitting with his back against the

wall, had no gun. He had been told that it could not be excluded that

Lefteris Andronicou might have had another weapon, for example a knife,

which he could have used to kill the young woman.

93.  Officer No. 3 testified that he entered the flat after officer

No. 1, having heard two or three shots when moving towards the door.

As he entered he saw Lefteris Andronicou and Elsie Constantinou in the

diagonally opposite corner. Lefteris Andronicou was sitting on the

floor, his legs stretched out in front of him. Elsie Constantinou was

covering his right side. He saw officers Nos. 2 and 4 shooting. He did

not count the shots. He wanted to seize Elsie Constantinou without

getting in the line of fire. He looked at officer No. 4 and before

looking at the bodies again the firing stopped. Then he saw Lefteris

Andronicou lying down, his knees bent against the wall, his head on the

stereo. Elsie Constantinou was on him, the right part of her body on

Lefteris Andronicou's right side covering half his chest. Their bodies

were not touching from the waist down. He did not see a gun. He seized

Elsie Constantinou and headed for the door shouting "An ambulance, an

ambulance". At the door step he stumbled and let Elsie Constantinou sit

on the floor. He then gave her to two other MMAD officers. He testified

that, according to his training, when it was necessary to shoot, one

always shot to kill.

94.  In the video recording, as Elsie Constantinou is being taken out

of the flat, several persons are heard shouting for an ambulance.

According however, to all the witnesses, no ambulance was present and

Elsie Constantinou had to be transported to Paphos hospital in a police

car. Dr. A. Hatzimitsi escorted her. The ambulance arrived in Trifonos

Court shortly afterwards.

95.  While Elsie Constantinou is being taken to the police car two

more shots are heard in the video recording. Officer No. 1 testified

that he and officer No. 2 realised that the bedroom door of Lefteris

Andronicou's flat was locked. He called No. 5 on the radio who carried

a gun which could be used for breaking open doors. Officer No. 5

testified that he entered the flat when Elsie Constantinou was being

carried out. He shot once, kicked the door and shot again. The door did

not open. When they realised that nobody was in, they went out. Officer

No. 1 saw the head of the MMAD platoon, H. Mavros, and told him that

Lefteris Andronicou was dead.

96.  G. Georgiadis, the head of the Paphos C.I.D., testified that he

was informed by a person whom he could not identify that Lefteris

Andronicou was dead. He went to the door of Lefteris Andronicou's flat

and shone his torch in. He saw Lefteris Andronicou lying in a pool of

blood but did not move in because of the tear-gas. He was satisfied

that Lefteris Andronicou was dead and informed his superiors. In the

course of the proceedings before the Commission of Inquiry, it emerged

that the next person to approach Lefteris Andronicou's body was the

state pathologist, Dr. M. Matsakis, who visited the scene at 5:00 on

the morning of 25 December 1993 and confirmed Lefteris Andronicou's

death. Dr. M. Matsakis considered that Lefteris Andronicou's death had

occurred five hours earlier.

97.  When Elsie Constantinou arrived in Paphos hospital, she was in

deep shock. She was operated for four and a half hours. Then she was

admitted to the intensive care unit, where she succumbed to her wounds

at around 5:10 on the morning of 25 December 1993.

98.  Officer No. 1 was also taken to the Paphos hospital. First aid

was administered to him and X-rays were taken. Although he was advised

to stay in hospital, he left on his own will shortly afterwards.

F.   The immediate aftermath

99.  At around 8:30 on the morning of 25 December 1993, the police

started photographing the scene of the incident and a video recording

was made. Lefteris Andronicou's body was half-naked, in the sense that

he was only wearing a pair of trousers at the time of his death. A

hunting gun bullet was found in one of his pockets. The telephone was

on a table to the left of the door. The receiver was not off the hook.

On the same table there was a half-full cup of coffee, one kebab pie

which was intact and the remains of a second kebab pie. The bedroom

door was still locked, with two bullet holes near the lock. Lefteris

Andronicou's  gun was lying across the arms of an armchair near his

body. The gun was not broken for re-loading and there was no blood on

the armchair. None of the police officers involved suggested that the

gun had been moved after the incident.

100. A senior police officer, Mr. Onisiforu started an inquiry and

written statements were taken from a number of witnesses. Later on in

the day the police issued a first press release entitled: "Operation

for the rescue of an abducted young woman".

101. At around 11:00 on 26 December 1993 the Minister of Justice and

Public Order participated in a meeting at the police headquarters.

After the meeting he told the journalists that Elsie Constantinou had

been abducted.

102. On the same day the families of Lefteris Andronicou and Elsie

Constantinou requested that a criminal investigation be opened, in

accordance with Article 4 of the Criminal Procedure Law. Moreover, an

application for an inquest into Lefteris Andronicou's and Elsie

Constantinou's deaths was filed with the Coroner of the District Court

of Paphos.

G.   The Commission of Inquiry

103. On 27 December 1993 the Council of Ministers mandated the

President of the Supreme Court, Mr. A. N. Loizou, judge of the European

Court of Human Rights, to carry out an inquiry, in accordance with the

Commissions of Inquiry Law. The terms of the mandate were "to

investigate in full the circumstances under which the deaths of

Lefteris Andronicou and Elsie Constantinou occurred in Chloraka,

Paphos, on the night of 24 to 25 December 1993, to determine who, if

any, was responsible and to make any recommendations or observations

which (the President of the Supreme Court) would deem necessary".

104. The Attorney-General ordered Mr. Onisiforu to continue his

inquiry, but not to interfere with any of the real evidence, on the

ground that the inquiry was not a criminal one within the meaning of

Article 4 of the Criminal Procedure Law but of an internal, purely

administrative, character. Moreover, the Coroner decided to refrain

from fixing a hearing date.

105. On 29 December 1993 the Council of Ministers decided to grant the

applicants ex gratia legal aid for the purposes of the inquiry which

would cover their legal representation and obtaining expert evidence.

106. The hearings before the one-member Commission of Inquiry opened

on 3 January 1994. The applicants promptly objected to the appointment

of the Commission of Inquiry, considering that the matter should have

been dealt with by way of a criminal investigation. The Commission

considered, however, that it was not competent to examine the legality

of the decision of the Council of Ministers setting it up.

107. The Commission of Inquiry held forty-six hearings, which were

attended by the Attorney General on behalf of the Republic and counsel

on behalf of the families of the deceased, the police and MMAD.

Directions were given concerning the collection and preservation of all

real evidence and the carrying out of all appropriate forensic tests.

One hundred and thirteen exhibits were examined and seventy-two

witnesses were heard. The witnesses testified under oath and were

examined and cross-examined by all interested parties. Although the

proceedings were public, the agents of MMAD who took part in the armed

intervention testified in camera. Their identities were disclosed only

to the President of the Supreme Court who conducted the inquiry. The

minutes of the inquiry, totalling 2389 pages, were made public in their

entirety.

H.   Expert evidence before the Commission of Inquiry

108. The following expert evidence was tendered to the Commission of

Inquiry:

i.   Planning of the operation

109. R. Bagg, an ex-colonel of the Israeli army and a professional

anti-terrorist and negotiations trainer, criticized the following

aspects of the rescue operation. The witness considered that in most

cases which did not involve terrorists or hardened criminals

negotiations could secure the liberation of the persons held and render

the use of force unnecessary. In the case under examination, however,

some of the main rules concerning negotiations had not been followed.

The witness considered that the result of the negotiations could have

been much more satisfactory if they had been based on a "give and take"

approach. In general it was better for the negotiations to be conducted

by persons who were not or did not appear to be police officers. The

police could have ensured that no unauthorised calls reached Lefteris

Andronicou by disconnecting his telephone and providing him with

another line. Lefteris Andronicou should not have been able to see the

crowd outside.

110. The MMAD platoon should have used multiple entries for their

armed intervention. An observer should have been placed by the skylight

who could have informed the police of Lefteris Andronicou's movements.

Special care should have been taken, however, because the head of the

person at the skylight could have been seen by Lefteris Andronicou. The

armed intervention should have taken place earlier on. Stun grenades

should have been used instead of tear-gas. A fire engine could have

poured water in the flat in order to neutralise Lefteris Andronicou.

In this case, however, it would have been necessary to ascertain

Lefteris Andronicou's exact  position. The witness did not exclude the

possibility that the officers might have mistaken Lefteris Andronicou's

two shots for one. In this case, however, they should have lured

Lefteris Andronicou into using his second bullet. Well-trained officers

like those of MMAD should have realised that Lefteris Andronicou was

not holding a gun and, in any case, should have fired the least number

of bullets possible. No bullets should have been fired after Lefteris

Andronicou had fallen on the ground.

111. W. Spalding, an ex-police officer from the United States and a

professional crisis management and hostage negotiations trainer who had

trained some of the officers of MMAD, was not critical of the rescue

operation. Although persons holding hostages often extended their

deadlines, symbolic deadlines were to be taken more seriously. The

failure to use the skylight was not "a big issue". It was not a mistake

to use tear-gas instead of stun grenades. In W. Spalding's view, it

could not have been the intention of H. Mavros to wait for the tear-gas

to produce its effects, since that usually took some time. The tear-gas

was thrown to divert Lefteris Andronicou's attention. In the United

States there were two schools of thought regarding multiple entry.

Although he tended to prefer it, others avoided it for fear that the

hostage might be caught in the crossfire. In any event, there was

nothing reproachable in the plan of the head of the MMAD platoon,

H. Mavros, who had considered and excluded all other possible options.

112. W. Spalding also testified that he had trained the officers of

MMAD to such a level that they had to fire real bullets at balloons

attached to his body. He had trained the officers of MMAD to use lethal

force as the last option. When it was necessary, however, the officers

had been trained to shoot at the thorax. They had been trained to shoot

until the target ceased to be a threat. In the case under examination,

the use of lethal force became justified when Lefteris Andronicou

opened fire. The officers of MMAD should not have been concerned as to

the number of bullets fired. When cross-examined by applicants'

counsel, the witness accepted that he had taken part in a number of

operations involving ordinary civilians who held others under the

threat of a gun where a negotiated solution had been found.

ii.  Drugs

113. K. Konari, a state chemist who tested the kebab pie which had not

been consumed, testified that the quantity of Lorezabam that she had

found in the pie indicated that five 2 mg pills had been used. Elsie

Constantinou had consumed a very large part of her pie. Lorezabam was

a tranquillizer, anti-anxiety drug which also had soporific effects.

It started producing its effects within thirty-five minutes

approximately. Its maximum effects were produced in two hours.

114. P. Hatzimitsis, the pharmacist who provided the soporifics,

testified that Lorezabam started producing its effects in half an hour.

Its maximum effects were produced in between one and six hours.

115. Dr. A. Hatzimitsi, the general practitioner who placed the

soporifics in the food, testified that, if Lefteris Andronicou and

Elsie Constantinou had eaten the pies, the drug would have produced its

effects in half an hour and they would have fallen asleep. If Dormicum

had been administered, they would have fallen asleep in ten minutes.

iii. Sequence of events

116. N. Adan, a forensic expert from Israel, who had prepared a noise

time chart on the basis of the video recording, testified that the

second shot from Lefteris Andronicou's gun was shot 0,8 seconds after

the first. In the witness's view, Lefteris Andronicou's second shot,

similarly with the first, was directed towards the door. The witness

had reached this conclusion on the basis of the small number of pellets

found in the flat. The noise time chart indicated that a number of

distinct shots were fired after the entry of the officers of MMAD in

the flat in the following sequence: one single shot, one triple shot

and one double shot. These shots started 5.8 seconds and ended 8.5

seconds after the first tear-gas shot. N. Adan considered that Elsie

Constantinou must have been wounded at that stage because her screams,

which could be heard on the video, were significantly reduced after the

six shots. However, the witness was not sure that the screaming had

stopped entirely. The noise time chart further indicated that a burst

of firing followed the single shots. It began 11 seconds and ended

13 seconds after the first tear-gas shot.

117. Dr. A.C. Hunt, a university reader in forensic pathology in the

United Kingdom, an ex-Home Office pathologist and an examiner in

forensic pathology for the Royal College of Pathologists, testified

that Elsie Constantinou must have received her wounds at the early

stage of the operation because she was not heard shouting after the

first shots in the video recording. However, he did not exclude that

she might have stopped shouting for another reason or that the noise

of the shooting might have covered her screams.

iv.  Lefteris Andronicou's death

118. Dr. M. Matsakis, the state pathologist, conducted a post-mortem

examination on Lefteris Andronicou's body on 27 December 1993. He found

seven wounds to Lefteris Andronicou's head and neck, twenty-eight

wounds to the thorax, abdomen and pelvis, nine wounds to the right arm,

sixteen wounds to the left arm and four other wounds, all caused by

bullets fired by the machine guns of the officers of MMAD. The number

of bullets which had hit Lefteris Andronicou were at least twenty-five.

The position of the wounds was such that, in Dr. M. Matsakis opinion,

for at least part of the firing, the arms of Lefteris Andronicou had

been interposed between the guns and his thorax. Before the Commission

of Inquiry Dr. M. Matsakis testified that these could have been among

the first wounds inflicted.

119. In his report D. M. Matsakis also specified that it was possible

that the wounds inflicted to the left and right side of Lefteris

Andronicou's body had been caused by bullets fired from different

directions. Many of the bullets had been fired when Lefteris Andronicou

was not in an upright position. At least some of bullets which had

entered the right front side of the body (mainly the abdomen) and had

exited from the right lumbar region, had been fired while Lefteris

Andronicou's body had been lying on the floor. Before the Commission

of Inquiry, Dr. M. Matsakis specified that the last bullets had hit

Lefteris Andronicou's body while the right side of his back was in

contact with the floor.

120. Dr. A.C. Hunt testified that, if Elsie Constantinou had been

covering the right side of Lefteris Andronicou during the shootout as

MMAD officer No. 2 had testified, Lefteris Andronicou would not have

received the wounds he had received to the right side of his thorax,

his right shoulder and his abdomen. He further testified that the

position of Lefteris Andronicou's wounds was such that Elsie

Constantinou could not have been covering his right side, as officer

No. 4 had testified. Moreover, the position of the wounds inflicted

when Lefteris Andronicou was already lying on the floor could not be

reconciled with the testimony of the officers of MMAD that Elsie

Constantinou had been found covering his abdomen.

121. In the course of the examination of Dr. A.C. Hunt it was accepted

by both sides that Lefteris Andronicou was already dead when the last

shots were fired.

v.   Elsie Constantinou's death

122. Dr. M. Matsakis, the state pathologist, also performed a post-

mortem examination on Elsie Constantinou's body on 26 December 1993.

Her body had been penetrated by two bullets fired by the machine guns

of the officers of MMAD. The first bullet had entered the left lower

postero-lateral region of the thorax and had exited from the right side

of the mid thorax. The second bullet had entered the lower right back

and exited from the right side of the abdomen. The distance between

Elsie Constantinou's body and the machine guns must have been greater

than one meter.

123. Dr. M. Matsakis also found four areas of wounding caused by

bullets fired from Lefteris Andronicou's hunting gun. A wound to the

right hand was caused by contact or near-contact firing. Dr. M.

Matsakis considered it very likely that it had been caused by the same

shot which had injured officer No. 1. There was a second wound to the

left hand also caused by contact or near-contact firing. A third wound

to the upper left thoracic region and the front region of the left

upper shoulder had been caused by the same shot which had injured Elsie

Constantinou's left hand. The same shot had also caused slight wounding

to Elsie Constantinou's left ear.

124. There were also signs that Elsie Constantinou had been beaten in

the face before her death.

125. Dr. M. Matsakis concluded in his report that Elsie Constantinou's

death had been caused by the wound inflicted by the machine gun bullet

which had penetrated her right lung, liver, stomach and spleen. A

second machine gun wound to the abdominal area and the hunting gun

wounds to the anterior left upper thorax and hands had contributed to

her death.

126. Before the Commission of Inquiry, Dr. M. Matsakis specified that

the first wound was capable of causing Elsie Constantinou's death on

its own. The chances that Elsie Constantinou might have died, if she

had only received the wounds to the anterior left upper thorax and

hands, were very slim. However, this could not be excluded, in the

sense that even the most insignificant wound could cause death if it

became seriously infected. The state pathologist was invited to explain

what he meant when he stated in his report that the wounds in the

anterior left upper thorax and hands contributed to Elsie

Constantinou's death. He replied that Elsie Constantinou had died

because her brain was not receiving oxygen due to the bleeding.

Although the principal wound had caused intense bleeding, the wounds

to the left upper thorax and arms had also caused bleeding.

127. Dr. F. Konstantinidis, the doctor who had operated Elsie

Constantinou, testified that the presence of an ambulance at the scene

would not have prevented Elsie Constantinou's death.

128. Dr. H. Fotiu, a surgeon called on behalf of the families of the

deceased who was present during the post-mortem examination, accepted

before the Commission of Inquiry that the wounds inflicted by Lefteris

Andronicou's gun had contributed to Elsie Constantinou's death.

However, he specified that Elsie Constantinou would have died even if

these wounds had not been inflicted. In his view, there could be no

doubt that Elsie Constantinou would have survived, if she had only

received the wounds caused by Lefteris Andronicou's gun. He specified

that she would have had to spend only three days in hospital.

129. Dr. A.C. Hunt testified that the wounds to the anterior left

upper thorax and the hands "should (not) have been put as a

contributory cause. It is like saying ... that somebody who has had

their head cut off, death was influenced by a broken leg. The wounds

described in the first paragraph are so catastrophic that there would

be no need for any contributory cause. And, I have never seen a death

from a discharge of a shot gun which has not penetrated a body cavity

or the head or neck. Finally, it would be also more a matter for the

surgeon who saw the wound in life."

vi.  Lefteris Andronicou's gun

130. Ar. Haralambus, the police officer who had collected the finger

prints, testified that he was sure that all the fingerprints on

Lefteris Andronicou's gun, with the exception of two, belonged to

Lefteris Andronicou. One fingerprint could have belonged to Lefteris

Andronicou and one did not. H. Diogenus, a bio-chemist in Nicosia

hospital, was not in a position to testify that Lefteris Andronicou's

blood was found on his gun.

131. A. Nikolaidis, a police officer and an expert in ballistics,

testified that Lefteris Andronicou's gun had not been hit by any

bullets and that it could not be excluded that the gun might have

fallen accidentally, instead of having been placed, on the armchair.

The state pathologist, Dr. M. Matsakis, expressed the view that

Lefteris Andronicou's gun could have fallen on the armchair as Lefteris

Andronicou was collapsing.

132. Dr. A.C. Hunt also testified that, if Lefteris Andronicou had

been holding a gun when being shot at, the gun would have fallen on the

floor. It could not have fallen on the armchair in the position in

which it had been found. It might have fallen on the armchair only if

the armchair had been in front of Lefteris Andronicou when he dropped

the gun.

133. N. Adan testified that the position in which Lefteris

Andronicou's gun had been found, its muzzle pointing towards the door,

and the absence of blood suggested that it had been placed there by

Lefteris Andronicou. He considered that Lefteris Andronicou had

sufficient time to do that after he had fired the shots and until the

entry of the first officer of MMAD.

I.   Findings of the Commission of Inquiry

134. The investigation was concluded on 27 April 1994 and the report

of the Commission of Inquiry, totalling 258 pages, was published on

15 June 1994. The main findings of the Commission of Inquiry were the

following:

135. The negotiations between the police and Lefteris Andronicou were

conducted in the best possible manner under the circumstances, given

in particular Lefteris Andronicou's stance. Lefteris Andronicou was

granted all he had requested, i.e. a telephone, cigarettes and food.

Although the latter arrived with a certain delay, this had been done

on purpose to exhaust Lefteris Andronicou and make him surrender.

Lefteris Andronicou was also given assurances that there would be no

consequences if he agreed to release Elsie Constantinou. However,

Lefteris Andronicou would not ask for anything less than the departure

of the police. There were no indications that Lefteris Andronicou had

any particular enmity vis-à-vis the police. In any event, it would have

been extremely improvident for the police to withdraw and leave Elsie

Constantinou in the hands of Lefteris Andronicou.

136. The non-involvement of psychologists, who had been sought but not

found, did not affect the validity of the Commission's conclusion

concerning the manner in which the negotiations had been conducted. The

police used the deputy police director of Paphos as principal

negotiator, an officer with great experience in dealing with people,

who immediately won Lefteris Andronicou's confidence and who

communicated with him until the end. Trained negotiators members of the

police force were present as well, whose knowledge was used and who

could have intervened if mistakes had been made. Moreover, the police

used all available persons who could have influenced Lefteris

Andronicou in the direction of abandoning his plan.

137. No attempt to extend the negotiations further could be made, as

there were grounds to believe that Lefteris Andronicou was determined

to abide by his deadline. Lefteris Andronicou made repeated and

consistent references to something which would happen at midnight on

the 24th of December. The symbolic importance of the time chosen could

not be easily ignored.

138. There was nothing reproachable in the Paphos police director's

acting as commanding officer. An attempt was made to disperse the

crowd. The suggestion of counsel for the families of the deceased that

the police missed several opportunities to neutralise Lefteris

Andronicou, when he opened the window to take the telephone, the

cigarettes and the food, was entirely unrealistic.

139. When deciding to dispatch MMAD the chief of police acted

responsibly, correctly and within his competence. All necessary

information had been made available to him. There was no indication

that the involvement and deployment of MMAD had been decided and

planned in a sloppy manner. MMAD was a body specially trained to deal

with such situations, which could not be handled by ordinary police

officers. It was wrong to assume that MMAD could only be used against

terrorists or in war-time operations.

140. Despite some testimony to the contrary, the Commission was

satisfied that the food which Lefteris Andronicou had ordered arrived

at 23:00 approximately. The pharmacist who provided the drugs and

Dr. A. Hatzimitsi agreed that the soporifics which were placed in the

food would have started producing their effects in half an hour. The

other expert, K. Konari, made a distinction between the time which the

particular soporific took to produce its effects, which she put at

thirty-five minutes approximately, and the time the drug took to

produce its maximum effects, which she put at two hours. These

estimates, however, applied to situations where a normal dose had been

administered. In any event, even if the wrong dose or the wrong drug

had been administered as suggested by the applicants, Lefteris

Andronicou did not eat the food and the operation could not have been

planned around that factor exclusively.

141. The police formed the view that Lefteris Andronicou was planning

to kill Elsie Constantinou and commit suicide at midnight on the basis

of all necessary and available information. This was the opinion of

Lefteris Andronicou's doctor who had had extensive discussions with

him.  Lefteris Andronicou had told the police director of Paphos

verbatim that "there is no Christmas for us, I will celebrate Christmas

with Elsie and at 00:05 you will come inside and take her". Elsie

Constantinou herself claimed that Lefteris Andronicou intended to kill

her. Lefteris Andronicou had not accepted any of the assurances offered

to him and had threatened to shoot whenever it had been suggested to

him that somebody might try to enter the flat.

142. There was no indication that the police were in a hurry to close

the matter before midnight because it was Christmas eve, as suggested

by the applicants. The fact that the police had not been fully informed

about the particulars of Lefteris Andronicou's relationship with Elsie

Constantinou could not have affected the validity of their assessment

of the situation. Although reference had been made to Elsie

Constantinou having been abducted, the police knew that Elsie

Constantinou had not initially been taken to Lefteris Andronicou's flat

against her will.

143. The head of the MMAD platoon carefully inspected the scene,

gathered information about the layout of Lefteris Andronicou's flat and

was fully briefed about the events preceding his arrival. He was also

in possession of all the information which had been made available to

him subsequently or which he had himself acquired. That the sole aim

of the operation was to save Elsie Constantinou's life was proven by

the fact that no explosives were used to break through the door and no

stun grenades were thrown. The use of a water hose, multiple entries

or an observer by the skylight would not have been advisable in the

circumstances.

144. The armed intervention was planned for around midnight in the

hope that Lefteris Andronicou could be persuaded to release Elsie

Constantinou. The head of the MMAD platoon had relied on surprise,

quickness and accuracy to ensure success for the armed intervention.

No disproportionate importance should be attached to the fact that some

of the expert witnesses would have planned the armed intervention in

another manner. The test to be applied was whether the head of the MMAD

platoon had planned the armed intervention in a "reasonable" manner,

which he had done.

145. Lefteris Andronicou was not taken by surprise because of an

unauthorised telephone call which he received just before the armed

intervention. Lefteris Andronicou could have answered the phone without

lifting the receiver, by activating the loudspeaker facility. When the

first officer of MMAD entered the flat he found Lefteris Andronicou

hiding behind Elsie Constantinou and pointing a gun at him. Lefteris

Andronicou fired two shots, one at the agent of MMAD and one at Elsie

Constantinou. The Commission of Inquiry did not accept expert testimony

to the effect that the second shot was not aimed at Elsie Constantinou.

146. The Commission of Inquiry rejected the suggestion that the

officers entered the flat with the intention to kill Lefteris

Andronicou out of vengeance. It also considered that the officers of

MMAD could not exclude the possibility that the second bullet in

Lefteris Andronicou's gun had not been used, because the two shots had

been fired immediately one after the other. When the officers entered

the flat, they did not see whether Lefteris Andronicou was still

carrying his gun. Moreover, the possibility could not be excluded that

Lefteris Andronicou could be in possession of other weapons. As a

result, the Commission of Inquiry did not consider it necessary to

determine whether Lefteris Andronicou's gun could have accidentally

fallen on the armchair where it had been eventually found. The officers

saw Elsie Constantinou in front of Lefteris Andronicou her back turned

at the door. She moved together with Lefteris Andronicou and, as a

result, they considered that he was using her as a shield.

147. The officers were justified in their decision to start shooting

as soon as they entered the flat, because they were under the

impression that their lives and that of Elsie Constantinou were in

danger and this was "normal". As long as Lefteris Andronicou moved,

they considered that the threat persisted. They shot repeatedly at

Lefteris Andronicou's torso and head, as they had been trained to do

in order to neutralise him as quickly as possible. Twenty-nine bullets

were used. When Elsie Constantinou fell on Lefteris Andronicou's right

shoulder, her body left part of his torso and his pelvis uncovered. All

shots were fired in a very short period of time and that explained why

the last two bullets penetrated Lefteris Andronicou's body when his

back or part of it was very close to or already touching the ground.

The situation was comparable with that in the McCann, Farrell and

Savage case where the European Commission considered that firing nine

shots against a person lying on the ground engaged no responsibility

when the aim of the person firing was to neutralise a perceived risk.

No inferences could be drawn from the exercise by one officer of MMAD

of his right not to incriminate himself.

148. The Commission of Inquiry considered that, taking into

consideration the explanations the state pathologist provided when he

appeared before it, he was right in considering that the wounds

inflicted on Elsie Constantinou by the pellets fired from Lefteris

Andronicou's gun contributed to her death. Although Dr. A.C. Hunt had

a different view, he specified that "it would be also a matter for the

surgeon who saw the wound in life". Dr. H. Fotiu also accepted that the

wounds inflicted by Lefteris Andronicou contributed to Elsie

Constantinou's death. However, he specified that Elsie Constantinou

would have died even if these wounds had not been inflicted.

149. The Commission considered that Elsie Constantinou was injured by

the officers of MMAD because "she had moved when they were shooting to

save her". In accordance with expert testimony, the presence of an

ambulance at the scene would not have made any difference to Elsie

Constantinou's fate.

150. In the light of all the above and relying, among others, on the

findings of the European Commission of Human Rights on the merits of

application No. 18984/91 McCann, Farrell and Savage v. United Kingdom,

the Commission of Inquiry concluded that the use of force by the

officers of MMAD, as a result of which Lefteris Andronicou and Elsie

Constantinou died, was no more than absolutely necessary for the rescue

of Elsie Constantinou and the self-defence of those who carried out the

rescue operation and fell within the exceptions of Article 7 para. 3

(a) of the Cyprus Constitution and Article 2 para. 2 (a) (Art. 2-2-a)

of the Convention. Neither was there any lack of due care in the

planning of the operation. Although no criminal acts had been committed

and the police could not be criticized in any way for its handling of

the case, the Commission of Inquiry recommended that the Government

should examine the possibility of making an ex gratia payment to the

families of the deceased, on the basis of the judgment of the European

Court of Human Rights of 26 April 1994 in the Diaz Ruano case.

J.   Subsequent Developments

151. By letter of 28 September 1994 the Attorney General informed the

applicants' lawyer that, in the light of the findings of the Commission

of Inquiry, no criminal proceedings would be instituted in connection

with the deaths of Lefteris Andronicou and Elsie Constantinou. He

indicated, however, that he would propose to the Government the ex

gratia payment of "full and substantial compensation" to the heirs of

the two deceased.

152. On 26 October 1994 Lefteris Andronicou's former wife asked the

District Court of Paphos to appoint her, jointly with her lawyer,

administrator of Lefteris Andronicou's estate, in her capacity as

representative of the two underage children Lefteris Andronicou had

from his marriage with her. On 7 November 1994 the first and second

applicants entered a caveat arguing that the children's mother could

not be appointed administrator and asking the court not to take any

steps without notifying them.

153. On 18 January 1995 the first and second applicants instituted

proceedings before the District Court of Paphos against Lefteris

Andronicou's former wife and her lawyer. They asked that they be

appointed administrators of Lefteris Andronicou's estate.

154. On 17 May 1995 the Attorney General offered the applicants legal

aid for the proceedings before the Coroner in Paphos. A hearing had

been planned for 29 May 1995, which was, however, adjourned at the

request of the applicants' lawyer.

155. On 7 June 1995 the Attorney General informed the applicants'

lawyer that "the State (would) cover any advocates costs that the

dependants of the deceased may sustain if and when they decide to bring

a civil action for damages against anyone on the basis of the facts

which led to the tragic death of Elsie Constantinou and Lefteris

Andronicou".

156. On 20 July 1995 the Attorney-General withdrew both offers of

legal aid. No agreement for the payment of ex gratia compensation was

reached between the applicants and the Government.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

157. The Commission declared admissible the applicants' complaints

concerning the deaths of Lefteris Andronicou and Elsie Constantinou and

the lack of any real possibility of instituting proceedings for damages

in this connection.

B.   Points at issue

158. The issues to be determined is, first, whether there has been a

violation of Article 2 (Art. 2) of the Convention and, secondly,

whether there has been a violation of Article 6 para. 1 (Art. 6-1) of

the convention.

C.   As regards Article 2 (Art. 2) of the Convention

159. Article 2 (Art. 2) of the Convention provides:

     "1.  Everyone's right to life shall be protected by law.  No one

     shall be deprived of his life intentionally save in the execution

     of a sentence of a court following his conviction of a crime for

     which this penalty is provided by law.

     2.   Deprivation of life shall not be regarded as inflicted in

     contravention of this Article when it results from the use of

     force which is no more than absolutely necessary:

          a.   in defence of any person from unlawful violence;

          b.   in order to effect a lawful arrest or to prevent the

     escape of a person lawfully detained;

          c.   in action lawfully taken for the purpose of quelling

     a riot or insurrection."

1.   General considerations

160. The Court in its McCann and others judgment of 27 September 1995

established the following general principles for the examination of

complaints under Article 2 (Art. 2) of the Convention, which the

Commission will apply, mutatis mutandis, in the present case:

          "The Court's approach to the interpretation of Article 2

     (Art. 2) must be guided by the fact that the object and purpose

     of the Convention as an instrument for the protection of

     individual human beings requires that its provisions be

     interpreted and applied so as to make its safeguards practical

     and effective.

          It must also be borne in mind that, as a provision which

     not only safeguards the right to life but sets out the

     circumstances when the deprivation of life may be justified,

     Article 2 (Art. 2) ranks as one of the most fundamental

     provisions in the Convention - indeed one which, in peacetime,

     admits of no derogation under Article 15 (Art. 15) . Together

     with Article 3 (Art. 3) of the Convention, it also enshrines one

     of the basic values of the democratic societies making up the

     Council of Europe. As such, its provisions must be strictly

     construed.

          The Court considers that the exceptions delineated in

     paragraph 2 indicate that this provision extends to, but is not

     concerned exclusively with, intentional killing. As the

     Commission has pointed out, the text of Article 2 (Art. 2) , read

     as a whole, demonstrates that paragraph 2 does not primarily

     define instances where it is permitted intentionally to kill an

     individual, but describes the situations where it is permitted

     to 'use force' which may result, as an unintended outcome, in the

     deprivation of life. The use of force, however, must be no more

     than 'absolutely necessary' for the achievement of one of the

     purposes set out in sub-paragraphs (a), (b) or (c).

          In this respect the use of the term 'absolutely necessary'

     in Article 2 para. 2 (Art. 2-2) indicates that a stricter and

     more compelling test of necessity must be employed from that

     normally applicable when determining whether State action is

     'necessary in a democratic society' under paragraph 2 of Articles

     8 to 11 (Art. 8-2, 9-2, 10-2, 11-2) of the Convention. In

     particular, the force used must be strictly proportionate to the

     achievement of the aims set out in sub-paragraphs 2 (a), (b) and

     (c) of Article 2 (Art. 2-2-a, 2-2-b, 2-2-c).

          In keeping with the importance of this provision in a

     democratic society, the Court must, in making its assessment,

     subject deprivations of life to the most careful scrutiny,

     particularly where deliberate lethal force is used, taking into

     consideration not only the actions of the agents of the State who

     actually administer the force but also all the surrounding

     circumstances including such matters as the planning and control

     of the actions under examination" (Eur. Court H.R., McCann and

     others judgment of 27 September 1995, to be published in Series A

     no. 324, paras. 146-150).

161. Moreover, in its opinion on the merits of the same case the

Commission made the following statement concerning the evaluation of

evidence:

          "(T)he Convention organs in the exercise of their

     supervisory jurisdiction are not in any formal sense bound by the

     domestic decisions but must examine the circumstances of a case

     as a whole to determine whether the justifications adduced are

     compatible with the provisions of the Convention" (McCann and

     others v. United Kingdom, Comm. Report 4.3.94, para. 176).

162. The Court agreed (McCann and others judgment cited above,

para. 171). It added the following considerations, which the Commission

will follow as well:

          "The Court, in determining whether there has been a breach

     of Article 2 (Art. 2) ..., is not assessing the criminal

     responsibility of those directly or indirectly concerned. In

     accordance with its usual practice therefore it will assess the

     issues in the light of all the material placed before it by the

     applicants and by the Government or, if necessary, material

     obtained of its own motion" (McCann and others judgment cited

     above, para. 173).

2.   The obligation to protect the right to life by law in Article 2

     para. 1 (Art. 2-1)

163. In their application form the applicants submitted that the laws

of Cyprus on the use of lethal force were vague and general and that

this constituted a violation of Article 2 (Art. 2) of the Convention.

However, they did not pursue the particular point in their written

observations or in their oral submissions at the hearing.

164. As a result and in the absence of any further substantiation, the

Commission considers that there has been no failure to comply with the

first sentence of Article 2 para. 1 (Art. 2-1) of the Convention.

3.   Requirements of Article 2 para. 2 (Art. 2-2)

165. The applicants submit that the force used was more than

"absolutely necessary" in the particular circumstances. They contend

that no recourse to force was necessary to resolve a domestic dispute

between two persons who were engaged to be married. Alternatively, they

argue that the operation was not planned in a manner which would have

minimised the need for the use of lethal force. They also argue that

the two officers who fired against Lefteris Andronicou and Elsie

Constantinou used excessive force.

166. The Government submit that the force used by the police was no

more than absolutely necessary for the purposes set out in Article 2

para. 2 (a) and (b) (Art. 2-2-a, 2-2-b) of the Convention for the

reasons stated in the report of the Commission of Inquiry.

167. The Commission recalls that the use of force which results, even

as an unintended outcome, in the deprivation of life gives rise to a

violation of Article 2 (Art. 2) of the Convention if it is more than

absolutely necessary for the achievement of one of the purposes set out

in the second paragraph of the provision. It also notes that the

operation in the context of which the two deaths occurred was mounted

in order to rescue Elsie Constantinou who was held at gunpoint by

Lefteris Andronicou and to arrest the latter. Moreover, the two

officers claim to have opened fire in order to defend themselves and

Elsie Constantinou after Lefteris Andronicou had used his gun.

168. It follows that the applicants' complaints concerning the deaths

of both Lefteris Andronicou and Elsie Constantinou must be examined

under Article 2 para. 2 (a) and (b) (Art. 2-2-a, 2-2-b) of the

Convention. In particular, the Commission must examine whether the

Cypriot authorities planned and controlled the operation to rescue

Elsie Constantinou so as to minimise, to the greatest extent possible,

recourse to lethal force and create the least possible risks for the

life of Elsie Constantinou. It must also examine whether the force used

by the two officers, the bullets of whom hit Lefteris Andronicou and

Elsie Constantinou, was no more than absolutely necessary in order to

defend Elsie Constantinou and themselves from unlawful violence and

effect a lawful arrest.

i.   Planning and control of the operation

169. The applicants point to a number of shortfalls in the planning

and control of the operation. They argue that no force at all was

necessary to resolve a domestic dispute. The decision to break into the

flat was taken prematurely, before all other methods of persuasion were

exhausted. The police did not know that Lefteris Andronicou and Elsie

Constantinou were engaged and consistently referred to the abduction

of a young woman. The negotiations were conducted by unqualified and

untrained police officers as well as unauthorised persons against the

background of a large crowd which had been allowed to gather on the

scene. As a result, Lefteris Andronicou was at one stage threatened

with beating. No psychologist was involved. No proper records were kept

and no follow-up was secured.

170. The applicants submit that the police wrongly assumed that

Lefteris Andronicou was planning to kill Elsie Constantinou at

midnight. They relied on Lefteris Andronicou's various "idle" threats

and the "rash" statements of a general practitioner and chose to ignore

several indications pointing in the opposite direction. If Lefteris

Andronicou truly intended to kill Elsie Constantinou he had ample

opportunity to do so before midnight. Elsie Constantinou had been seen

walking out of the flat on the morning of 24 December 1993. On several

occasions Lefteris Andronicou expressed his concern about Elsie

Constantinou's well-being. Shortly before midnight, he indicated that

he intended to have a coffee.

171. The applicants point out that, although soporifics had been

administered at 23:35, the police did not wait for them to have effect.

The level of lack of coordination was such that the Special Forces were

not aware that drugs had been administered. Moreover, it was wrong to

involve the Special Forces who were trained to shoot to kill without

warning. The briefing and the instructions given were wholly

inappropriate. There was expert evidence that Lefteris Andronicou could

have been neutralised with water power from a fire engine.

172. Finally, the applicants contend that there was no element of

surprise, as the action of the Special Forces was planned very close

to the supposed deadline. The Special Forces entered through the front

door against a background of complete silence. Stun grenades should

have been used instead of tear-gas which does not produce effects

immediately. Finally, no ambulance was present at the scene of the

operation.

173. The Government submit that the operation was planned in the best

possible manner. They refer to the findings of the Commission of

Inquiry (see paras. 135-150).

174. The Commission will first examine the applicants' argument that

no recourse to force was necessary to resolve a domestic dispute

between two persons who were engaged to be married. The Commission

notes that the applicants' submissions before it appear to refer, inter

alia, to the view taken by the third and fourth applicants quite early

on the day of the incident when they invited the police to leave to

enable the family to deal with the problem on their own. It also notes

that Lefteris Andronicou had stated on many occasions that he was

afraid of the police and asked for their withdrawal.

175. The Commission considers, however, that it is inappropriate to

speculate as to how the situation might have developed, if the police

had adopted a lower profile during the incident. In the particular

circumstances, the police were reasonably entitled to believe that they

would have failed in their duty to protect Elsie Constantinou, if they

had not persisted in their efforts to obtain her release.

176. Having observed that, the Commission nevertheless has misgivings

about certain aspects of the planning and control of the operation

leading up to the rescue attempt. In particular, legitimate doubts may

be raised as to the coordination of the negotiations with Lefteris

Andronicou and the failure to involve psychologists or psychiatrists

in the negotiating process, as the authorities themselves had

considered necessary; the fact that a large crowd had been allowed to

collect at the scene; the failure to control all communications with

Lefteris Andronicou; the timing and implementation of the plan to

neutralise Lefteris Andronicou by introducing soporific drugs into his

food; the decision to delay the armed intervention until shortly before

the expiry of the "ultimatum" of Lefteris Andronicou, with the

consequent loss of the element of surprise; and the failure of the

authorities to ensure the presence of an ambulance at the scene,

notwithstanding the fact that the possibility of armed action had been

envisaged from the moment the order to mobilise the Special Forces was

given at 17h10.

177. However, in evaluating the way in which the rescue operation was

organised and controlled, the Commission considers it important to bear

in mind two factors. In the first place, the situation with which the

authorities were faced developed from a comparatively minor incident

into a crisis as the day went on. Whether or not the use of other

tactics could have defused the incident at an early stage, the

situation which confronted the authorities rapidly became one of the

utmost gravity - the holding of a young woman against her will by a man

who was armed and apparently unstable and who, by his words and

conduct, gave cause to fear that he intended to take Elsie

Constantinou's life and his own at midnight. In these circumstances the

authorities were presented with acutely difficult choices, each

carrying with it risks and disadvantages. In addition, the time

pressures and atmosphere of crisis in which the authorities were

required to operate made it likely that mistakes and errors of judgment

would occur. In the event mistakes clearly did occur and may have

contributed to the disastrous outcome of the rescue attempt.

Nevertheless, it would be wrong to conclude too readily and with the

benefit of hindsight that, because the rescue operation was or might

have been mishandled in certain material aspects, the operation had

been planned without due regard to the protection of human life.

178. Furthermore, the Commission notes that the events were the

subject of detailed examination at a domestic level by an independent

Commission of Inquiry in the course of which seventy-two witnesses were

heard under oath and were subjected to examination and cross-

examination by all interested parties.  These included all police

officers responsible for planning and controlling the rescue operation.

It is apparent from the report of the Commission of Inquiry that

substantially the same criticisms were made of the planning of the

operation as are now advanced before the Commission. These criticisms

were for the most part rejected in the report. While the grounds for

rejecting certain of the criticisms may be open to question and while

the findings of the Commission of Inquiry cannot be determinative of

the Convention issues before the Commission, due regard must be paid

to these findings.

179. Nevertheless, even making allowances for the errors and omissions

which occurred, the Commission considers that in one fundamental

respect the authorities failed to plan and control the rescue operation

so as to minimise recourse to lethal force. The authorities in the

present case were not concerned with suspected terrorists or hardened

criminals but with a young couple involved in what had originated as

a domestic dispute. Moreover, the only weapon which Lefteris Andronicou

had been seen carrying and to which Elsie Constantinou had made

reference in her various pleas for help was a double-barrel hunting

gun.  There was no good reason to support any belief that Lefteris

Constantinou might have other weapons in his possession. Further, the

flat in which Elsie Constantinou was being held was small, consisting

of two rooms and a bathroom. It was accordingly clear that to open fire

in such a confined space was especially hazardous.

180. In these circumstances the decision to use officers of the

Special Forces who had been trained to shoot to kill when they

perceived themselves to be in danger and to equip them with machine

guns when effecting entry to the flat carried with it a very obvious

risk of injury or death not only to Lefteris Andronicou but to Elsie

Constantinou  herself. This risk was further increased, having regard

to the fact that the officers concerned had been informed that, in

addition to the double-barrelled hunting gun, Lefteris Andronicou could

be in possession of other weapons.

ii.  The actions of the officers Nos. 2 and 4

181. The applicants submit that the two officers of the Special Forces

who fired the bullets which hit Lefteris Andronicou and Elsie

Constantinou used force which was excessive in the particular

circumstances. The two officers fired, without warning, twenty-nine

bullets in a small room against two unarmed civilians. According to the

applicants, Lefteris Andronicou was killed out of vengeance for having

superficially wounded an officer of the Special Forces. If the officers

believed that Lefteris Andronicou had not fired his second bullet, they

should have tried to lure him into using it. All the bullet wounds

which were found to Lefteris Andronicou's body were above waist level

and some bullets were fired while he was already lying on the ground.

Lefteris's second shot was not directed at Elsie Constantinou. The

wounds Lefteris Andronicou caused to Elsie Constantinou did not

contribute to her death. Elsie Constantinou died because of two wounds

inflicted on her by the officers of the Security Forces.

182. The Government submit that the officers used force which was no

more than absolutely necessary in the circumstances of the case. They

refer to the findings of the Commission of Inquiry (see paras. 135-

150).

183. The Commission notes that the Commission of Inquiry did not

determine with precision what happened when the officers of the Special

Forces entered Lefteris Andronicou's flat. Neither did it determine at

which stage of the armed intervention Elsie Constantinou's death

occurred.

184. The Commission notes that Lefteris Andronicou received at least

twenty-five bullets. There was a large number of wounds to his chest

and head. According to expert evidence, some of these bullets were

fired when he was already lying on the ground. Officer No. 2 testified

that he had been trained to shoot to kill when shot at and that he

stopped shooting when he was sure that Lefteris Andronicou was no

danger for him or Elsie Constantinou. The Commission considers, on the

basis of the above, that the two security officers consciously acted

in a manner which inevitably resulted in Lefteris Andronicou' death.

185. The Government argue that the actions of the officers were

absolutely necessary on the basis of the findings of the Commission of

Inquiry which concluded that the two officers were acting in accordance

with their perception of the risk. The two officers knew that Lefteris

Andronicou had a hunting gun which could contain two bullets and had

heard him firing only one bullet. Moreover, they had been instructed

that the possibility could not be excluded that Lefteris might be in

possession of other arms.

186. It is clear that the two officers opened fire in response to the

two shots which were fired by Lefteris Andronicou. The Commission notes

in this regard that it was accepted by the Commission of Inquiry that

the two shots from Lefteris Andronicou's gun were fired so close to

each other in point of time that the officers reasonably believed that

Lefteris had not discharged the bullet of the  second barrel. It also

appears from the evidence before the Inquiry that when officer No. 1

fell back bringing officer No. 3 down, the impression was that officer

No. 3 was dead and officer No. 1 seriously injured (see testimony of

officer No. 2 in para. 89).

187. The Commission is unable to accept the applicant's submission

that Lefteris Andronicou was killed out of revenge. It is however,

accepted that the officers' belief that Lefteris Andronicou had caused

the death of one colleague and the serious injury of another provoked

a reflex response involving a use of force which in the circumstances

would almost inevitably result in the death not only of Lefteris

Andronicou but of Elsie Constantinou herself, the very person for whom

the rescue operation had been mounted. The number of bullets fired

indicates a response which, in the view of the Commission, lacked the

degree of caution in the use of firearms to be expected from law

enforcement personnel in a democratic society, even when dealing with

persons who are posing a threat to the lives of others (see mutatis

mutandis the McCann and others judgment, para. 212). The Commission

nevertheless considers that the responsibility for what occurred is to

a great extent due to the planning and control of the operation, which

by entrusting the rescue attempt to officers who were trained to shoot

to kill and by arming them with machine guns created in the

circumstances a foreseeable danger that there would be unnecessary

recourse to lethal force.

188. In these circumstances the Commission finds that the deaths of

Elsie Constantinou and Lefteris Andronicou resulted from the use of

force which was more than absolutely necessary in defence of persons

from unlawful violence or in order to effect a lawful arrest within the

meaning of Article 2 (2) (a) and (b) (Art. 2-2-a-, 2-2-b) of the

Convention.

189. Accordingly, the Commission finds that there has been a breach

of Article 2 (Art. 2) of the Convention.

     CONCLUSION

190. The Commission concludes, by 15 votes to 3, that in the present

case there has been a violation of Article 2 (Art. 2) of the

Convention.

D.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

191. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a ... hearing ... by a ... tribunal ..."

192. The applicants submit that their financial situation is such that

they cannot bear the cost of civil proceedings in connection with the

deaths and that there is no legal aid system in Cyprus. Their lack of

sufficient means is proved by the fact that they had to rely on legal

aid in the proceedings before the Commission of Inquiry and the

Commission. The action instituted by the first two applicants against

Lefteris's former wife and her lawyer was very simple. The cost of a

civil action against the authorities for the deaths of their relatives

was, however, expected to exceed the cost of the proceedings before the

Commission of Inquiry which amounted to USD 70,000.

193. The Government submit that the applicants are not precluded from

instituting civil proceedings for damages. The first two applicants'

assertion that they did not have sufficient means is disproved by the

fact that they were able to institute proceedings against Lefteris's

former wife and her lawyer on the maximum scale known in Cyprus

entailing maximum legal fees. In any event, the social conditions and

the legal practice in Cyprus are such that no person has ever been

prevented from lodging a civil action as a result of the lack of a

legal aid system.

194. The Commission recalls that Article 6 para. 1 (Art. 6-1)

guarantees to litigants an effective right of access to the courts for

the determination of their civil rights and obligations (Eur.Court

H.R., Airey judgment of 9 October 1979, Series A no. 32, p. 15,

para. 26).

195. It is not disputed by the parties that the applicants required -

-de facto if not de jure- legal assistance for the institution of civil

proceedings for damages which would involve a determination of their

civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

196. The Commission further notes that the applicants had to rely on

legal aid for their participation in the proceedings before the

Commission of Inquiry and that they were at one stage offered legal aid

for the Coroner's inquest and for any civil proceedings they might have

wanted to institute in connection with the deaths of their relatives.

On this basis the Commission considers that the applicants are persons

in need of legal aid. As both parties accept, the laws of Cyprus do not

make provision for legal aid for the institution of civil proceedings.

197. However, on 7 June 1995 the Attorney General informed the

applicants' lawyer that "the State (would) cover any advocates costs

that the dependants of the deceased may sustain if and when they decide

to bring a civil action for damages against anyone on the basis of the

facts which led to the tragic death of Elsie Konstantinou and Lefteris

Andronikou". This offer remained valid until 20 July 1995, when it was

withdrawn. The applicants had for more than a month the possibility to

institute civil proceedings for the deaths of their relatives by

accepting the Attorney General's offer. It follows that they could have

had effective access to the courts for the determination of their civil

rights and obligations.

     CONCLUSION

198. The Commission concludes, by 12 votes to 6, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

E.   Recapitulation

199. The Commission concludes, by 15 votes to 3, that in the present

case there has been a violation of Article 2 (Art. 2) of the Convention

(see para. 190).

200. The Commission concludes, by 12 votes to 6, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention (see para. 198).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)

                                                 (Or. English)

PARTLY CONCURRING AND PARTLY DISSENTING OPINION

BY MR. L. LOUCAIDES

     I agree with the findings of the majority of the Commission

regarding the violation of Article 2 of the Convention in this case.

However, I believe that I must place on record my position that an

objective test of state responsibility as explained in my dissenting

opinion in the McCann, Farrell and Savage Case is the correct test in

examining responsibility under the Convention.

     It seems that in the above mentioned case the Court did not

address its mind to the specific legal question of whether state

responsibility under the Convention should be objective or subjective.

     In deciding such question regard must be had to the provisions

and objectives of the Convention as well as to the relevant principles

of international law. The terms of the Convention do not appear to

allow room for the application of the subjective responsibility

concept: they do not condition the obligation of the High Contracting

Parties to secure the human rights defined in the Convention so as to

depend on the good or bad faith of the parties; mistakes or errors do

not seem to have a place as a justification or defence for failing to

secure the rights in question.

     Article 1 of the Convention provides:

          The High Contracting Parties shall secure to everyone

     within their jurisdiction the rights and freedoms defined in

     Section 1 of this Convention."

     Article 2 of the Convention as far as it relates to the present

case provides:

     "1.  Everyone's right to life shall be protected by law

          ....

     2.   Deprivation of live shall not be regarded as inflicted in

     contravention of this Article when it results from the use of

     force which is no more than absolutely necessary:

          a.   in defence of any person from unlawful violence;

          b.   in order to effect a lawful arrest or to prevent the

               escape of a person lawfully detained;

               ......".

     The formulation of the above rules support the view that the test

of whether there is a breach of the obligations set out therein is

objective. A violation should be considered as sufficiently established

if it is proved that the State concerned has actually caused the

interference with the right or failed to secure it, in circumstances

that do not satisfy strictly the conditions of any permissible

justification prescribed in the Convention. It is useful to add here

that the Court in the McCann, Farrell and Savage Case confirmed the

interpretation of the Commission that the text of Article 2, read as

a whole, demonstrates that paragraph 2 does not primarily define

instances where it is permitted intentionally to kill an individual,

but describes the situations where it is permitted to "use force" which

may result, as an unintended outcome, in the deprivation of life.

     Objective responsibility rests on the doctrine of the voluntary

act: provided that agency and causal connection are established there

is a breach of duty by result alone. To be contrasted with this

approach is the subjective responsibility concept (the "fault"

principle) which rests upon proof of guilty intention ("dolus") or

negligence on the part of the State agents concerned as a prerequisite

for State responsibility. In the case of objective responsibility

defences such as good faith, lack of negligence or bona fide reasonable

mistakes do not exoranate the State and consequently they are

irrelevant. In international law nowadays doctrine and practice support

the objective theory and this is right taking into account the

practical need for an effective application of international law.

     The special nature of the Convention, i.e. that the obligations

provided therein "are essentially of an objective character, being

designed rather to protect the fundamental rights of individual human

beings from infringement by any of the High Contracting Parties than

to create subjective and reciprocal rights for the High Contracting

Parties themselves", is not a sufficient basis to distinguish the

Convention for the purposes of the question in issue from other norms

of international law which govern rights and obligations between

States; the obligations under the Convention remain obligations of

international law in the nature of "a collective guarantee by the High

Contracting Parties of the rights and freedoms set forth in the

Convention [for the maintenance of] the public order of Europe".

     The fact that a mistake can exculpate the agents of the State

labouring under it from personal criminal responsibility under the

domestic law cannot be sufficient to exculpate also the State from

responsibility under the Convention. As rightly observed by the

Commission in the Ribitsch case  "... criminal law responsibility

under the national legal systems should not be confused with the

international law responsibility under the Convention. The Commission

is only concerned with the latter".

     In the Ireland v. United Kingdom the Commission applied the rule

imputing unauthorised acts of its agents to the State by express

reference to what prevails "in connection with responsibility under

international law generally".

     In the light of the above, I hold the opinion that State

responsibility under the Convention should be governed by the same

principles which apply for the determination of State responsibility

under international law and that the objective test is the one that

should be applicable in this case.

     Accordingly it is not necessary to examine whether the various

state organs involved in this case acted negligently or under a bona

fide reasonable mistake or not. These are matters pertaining to a

subjective test of responsibility; they may be relevant in examining

criminal or civil responsibility under the municipal law but they are

not relevant as regards responsibility under the Convention.

     Having applied the objective test of responsibility on the facts

of the present case I have arrived at the same conclusions as the

majority of the Commission and I find that in the present case there

has been a violation of Article 2 of the Convention through the use of

lethal force which was not objectively justified as absolutely

necessary for any of the purposes set out in para. 2 (a) and (b) of

that Article.

     However, I must state that even on the basis of the subjective

test of responsibility I would still come to the conclusion that

Article 2 was violated in this case for the reasons set out in the

Report.

     As regards Article 6 para. 1 of the Convention I find myself in

disagreement with the majority.

     The majority bases its conclusion that there has been no

violation of Article 6 para. 1 on the fact that the applicants had for

more than a month the possibility to institute civil proceedings for

the deaths of their relatives by accepting an offer on behalf of the

respondent Government to cover any costs of their advocates in respect

of such proceedings. This offer was withdrawn on 20 July 1995.

     However, it is an undisputed fact that the offer in question was

not based on any scheme of legal aid under the laws of Cyprus as these

laws do not provide for legal aid for the institution of civil

proceedings. In effect the offer in question amounted to an offer for

an ex gratia payment which depended on the goodwill of the respondent

Government, i.e. the opponent of the applicants in the eventual

relevant civil proceedings. Such goodwill cannot be questioned.

Nevertheless, an ex gratia offer for legal aid, especially when it

originates from the other party of the relevant judicial proceedings,

by its very nature lacks the essential objective safeguards for an

effective legal aid, i.e. the grant by a body independent of the

parties to the proceedings of sums to meet the reasonable costs of the

proceedings in accordance with scales fixed by law and with the

possibility of judicial review in the event of a dispute. In other

words an effective legal aid presupposes that it is regulated by law

and that if the relevant conditions are satisfied it can be claimed as

of right and not ex gratia.

     For the above reasons, I find that in the absence of a legal

right of the applicants to an effective legal aid, the applicants have

no effective right of access to the courts for the determination of

their civil rights and obligations and, therefore, in the present case

there has been a violation of Article 6 para. 1 of the Convention.

                                                 (Or. English)

         PARTLY DISSENTING OPINION BY MR. C.L. ROZAKIS

     I have voted for a violation of Article 6 para. 1 of the

Convention. I note in this connection that the Attorney General's offer

was addressed to "the dependants of the deceased". However, there is

no indication that the applicants fall within this category of persons

(see, inter alia, the respondent Government's argumentation before the

Commission concerning the admissibility of the application). In any

event, this offer was later withdrawn.

                                                 (Or. English)

PARTLY DISSENTING OPINION BY MM. C.A. NØRGAARD AND G. JÖRUNDSSON

     We have voted against the finding of a violation of Article 2 in

the present case for two reasons.

     First, the Commission has found that there is no violation of

Article 6 because the applicants had the possibility of bringing a

claim for compensation in a civil case, in other words they had a

remedy which they did not use, therefore we do not find that local

remedies have been exhausted.

     Secondly, with regard to the merits of Article 2 we have joined

Mr. Schermers's dissenting opinion.

                                                 (Or. English)

        PARTLY DISSENTING OPINION BY MR. H.G. SCHERMERS

     As the Court held in McCann, Article 2 is not concerned

exclusively with intentional killing. The article will be infringed

also when accidental killing comes about with the use of force which

is disproportionate to its aim. Had the action in  the present case

been for a purpose other than saving the life of Elsie Constantinou,

or had it been known that Lefteris Andronicou was unarmed, then the

force used would have been excessive and the killings contrary to

Article 2.

     The question whether the use of force in the present case was

absolutely necessary must be seen in the light of the information

available to the police at the time. The police knew that Lefteris

Andronicou was armed and they were convinced that after midnight he

would use his gun for killing himself and possibly Elsie Constantinou.

     With the majority of the Commission I agree that mistakes have

been made by the Police. In hindsight it is easy to find mistakes. It

is obvious that ambulances should have been ordered earlier and that

officers number 2 and 4 were insufficiently qualified for their tasks.

In hindsight it would have been better if the police had abstained from

any action. In hindsight it would have been better if Dormicum had been

administered instead of Lorezabam, or if the Lorezabam pills had been

administered half an hour earlier. Someone should have thought about

drugs earlier and they should have been prepared earlier.

     I find it difficult, however, to classify the mistakes made by

the police as infringements of Article 2. Considering the situation at

the time and the facilities available, limited as they were (both with

respect to material and to human experience and capacities), I can

accept that the authorities considered that the use of force to defend

a person from unlawful violence was absolutely necessary. In my opinion

Article 2, para. 2 (a) is applicable. Infringement of Article 2 is a

serious matter. However deplorable the present case may be I find

insufficient fault with the Cypriot authorities for accusing Cyprus of

infringement of this article. Account should also be taken of the fact

that an investigation was made by a Commission of Inquiry, which had

the opportunity to hear witnesses and to visit the location and which

concluded that the force used was necessary under the circumstances at

the time.

     One may severely criticise the Cypriot authorities for arming the

police with a machine gun. I find it difficult, however, to consider

this armament as an infringement of Article 2? Would then not all

armament be contrary to Article 2? Seen from the angle of human rights

this position may well be defended. All armament potentially infringes

the right to life. Under the European Convention on Human Rights,

however, armament - and even excessive armament - is not prohibited.

Heavy armament of the police is not only for the purpose of killing.

It is also to strengthen the self confidence of the policemen and it

may have a deterrent effect.

     In paras. 180 and 187 the Commission seems to criticise the fact

that policemen were trained to shoot to kill. However, this rule

applies only against an opponent who is shooting at the policeman. It

is a harsh rule, but I see little alternative. A person shooting at the

police should be stopped immediately. Any delay is of mortal danger to

the policeman. Warning shots, or even shots in the leg or belly risk

another bullet against the police.

     With respect to Article 6 para. 1 of the Convention, I share the

opinion of the majority of the Commission.

                                                 (Or. English)

   PARTLY DISSENTING OPINION BY MM. J.-C. GEUS and C. BÎRSAN

     We have voted in favour of a violation of Article 6 para. 1 of

the Convention for the reasons indicated in the partly dissenting

opinions of MM. C.L. ROZAKIS and L. LOUCAIDES.

 

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