CASES OF EGMEZ AGAINST CYPRUS AND DENIZCI AND OTHERS AGAINST CYPRUS

Resolution ResDH(2006)13
concerning judgments of the European Court of Human Rights
in cases relating to actions of police forces in Cyprus
(Egmez against Cyprus, judgment of 21 December 2000;
Denizci and others against Cyprus, judgment of 23 May 2001, final on 23 August 2001)

(Adopted by the Committee of Ministers on 12 April 2006,
at the 960th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases of Egmez against Cyprus, delivered on 21 December 2000, and Denizci and others against Cyprus, delivered on 23 May 2001, transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

Recalling that the Egmez case originated in an application against Cyprus (No. 30873/96), lodged with the European Commission of Human Rights on 26 March 1996 under former Article 25 of the Convention by Mr Erkan Egmez, a British national, and that the Commission on 18 May 1998 declared admissible in particular the applicant's complaints that in 1995 he was ill-treated and tortured by police officers during and after his arrest and during his provisional detention and that there was no remedy at his disposal in respect of the ill-treatment and torture;

Recalling that the Denizci and others case originated in seven applications against Cyprus (nos. 25316‑25321/94, 27207/95), lodged with the European Commission of Human Rights on 12 September 1994 under former Article 25 of the Convention by nine Cypriot nationals: Mr İlker Denizci, Mr Aziz Merthoca, Mr Hüseyin Mavideniz, Mr Yılmaz Mavideniz, Mr Doğan Davulcular, Mr Hasan Merthoca, Mr Erbay Kaptanoğlu, Mr Taşer Kişmir and Mr İbrahim Tufansoy (after the decease of the last applicant who had initiated the proceedings on behalf of his deceased son Mr İlker Tufansoy, the proceedings were continued by the latter's mother Mrs Rebiye Tufansoy); on 20 January 1998 the Commission declared admissible in particular the applicants' complaints that in 1994 they had been unlawfully detained, ill-treated by Cypriot police officers and then expelled to the northern part of Cyprus;

Whereas in its judgment of 21 December 2000 concerning the Egmez case the Court held inter alia:

- unanimously that there had been a violation of Article 3 of the Convention, on the ground of the applicant's inhuman treatment by police officers;

- by six votes to one that there had been a violation of Article 13 of the Convention, due to lack of an effective criminal investigation capable of leading to the identification and punishment of the responsible officers;

- unanimously that the respondent state was to pay the applicant, within three months, the following amounts: 10,000 pounds sterling in respect of non-pecuniary damage and 400 pounds sterling for costs and expenses, together with any value-added tax that may be chargeable; that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;

Whereas in its judgment of 23 May 2001 concerning the Denizci and others case the Court unanimously held inter alia that:

- there had been a violation of Article 3 of the Convention, on the ground of the applicants' inhuman treatment by police officers;

- there had been a violation of Article 5, paragraph 1, of the Convention due to the applicants' unlawful arrest and detention by police officers;

- there had been a violation of Article 2 of Protocol No. 4 to the Convention on the ground that the restrictions on the applicants' freedom of movement had been neither provided for by law nor necessary;

- the respondent State was to pay, within three months from the date on which the judgment would become final, the following amounts: (i) to each applicant 20,000 Cyprus pounds in respect of non‑pecuniary damage; (ii) to all applicants together 25,000 Cyprus pounds in respect of costs and expenses, less 6,045 French francs already received by way of legal aid from the Council of Europe; simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures taken in consequence of the European Court's judgments, having regard to Cyprus' obligation under Article 46, paragraph 1, of the Convention to abide by them;

Having satisfied itself that on 24 January 2001 and on 3 July 2001, within the time-limits set, the government of the respondent state had paid the applicants the sums provided for in these judgments;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken, in compliance with Article 46, paragraph 1, of the Convention, in order to grant the applicants, as far as possible, full redress for the violations found (restitutio in integrum) and to prevent new violations of the same kind as those found in the present judgments; this information appears in the appendix to this resolution;

Recalling, as far as individual measures are concerned, the continuing obligation to conduct effective investigations into the actions of security forces, particularly in cases where procedural violations of Articles 2 or 3 have been established (cf Interim Resolution ResDH(2005)20 Action of the Security Forces in Northern Ireland) or, as in the Egmez case, a violation of Article 13;

Noting in this context with interest the ex officio appointment by the Attorney General of an independent criminal investigator in both cases (see appendix) and that the ensuing investigations appear “capable of leading to the identification and punishment of those responsible”[1]; regretting, however, the time required for this appointment in view of the importance of taking individual measures promptly,

Welcoming the general measures adopted by Cyprus following the judgments of the Court which today appear effectively to prevent new, similar violations; noting, in particular, with satisfaction the rapid interim measures taken by the Council of Ministers, the Attorney General and the Minister of Justice and Public Order to prevent as far as possible new violations awaiting the entry into force of the comprehensive reforms which had been initiated,

Declares, after having examined the information supplied by the government of Cyprus, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases.

Appendix to Resolution ResDH(2006)13

Information provided by the government of Cyprus
during the examination of the cases of Egmez and Denizci and others
by the Committee of Ministers

 Individual measures aimed at achieving restitutio in integrum for the applicants

I.a. Introductory note

It is recalled that in the case of Egmez a violation of Article 13 was found by the Court on the ground that there had been no “thorough and effective investigation capable of leading to the identification and punishment” of the police officers responsible for the applicant's ill-treatment (see, in particular, paragraphs 65, 70, 100 of the judgment). This was, despite the fact that the Ombudsman of the Republic of Cyprus, following a complaint by the applicant, had carried out an investigation into the case and on 25 April 1996 issued, and transmitted amongst others, to the Attorney General, a report identifying police officers who had been involved in the applicant's ill-treatment.

I.b. Appointment of an independent criminal investigator

Following the European Court's judgments, the Cyprus government decided to proceed to the initiation of fresh, independent criminal investigations into both cases. On 30 April 2003, by decision of the Attorney General, Mr Demetrios Stylianides, former President of the Supreme Court of Cyprus, was appointed as criminal investigator in both of these cases. These investigations are not as yet concluded.

It is noted that the applicant in the case of Egmez has not, since the opening of investigations, pursued his requests in this respect (initially raised in letters addressed to the Committee in 2001 and in 2002) or submitted any complaints regarding their conduct. The applicants in the case of Denizci and others have not, in any way, pursued this matter with the Committee.

The government considers that the powers of independent investigators and the procedural safeguards surrounding them guarantee that the fresh investigations, which will be concluded without delay, meet the requirements of the Convention (see below).

I.c. Powers and effectiveness of the independent criminal investigator[2]

After the events at issue, the Attorney General received the power to appoint independent investigators in cases of alleged abuses by police forces (see further section II.2.b below). Criminal investigators appointed by the Attorney General are independent lawyers or former judges. They have the same powers and duties as police officers investigating the commission of offences allegedly perpetrated by members of the public. Under section 4 (3) of the Criminal Procedure Law both are “investigating officers” having the powers given to such officers by sections 5-8 of the Law. They are empowered by this Law not only to order attendance and taking of statements by witnesses, but also to require the production of documents. They can also carry out searches under the authority of search warrants issued by a court. Such warrants may be issued by a court upon a sworn written declaration by the investigator that there are reasonable grounds for believing that evidence as to the commission of an offence is to be found in the place concerned.

The duties of police officers required to give information/statements in criminal investigations carried out by investigators appointed by the Attorney General are the same as those of members of the public when the investigation is being carried out by police officers.

Complainants participate in investigations by giving their own testimony, upon which the investigation is based. The complainant is always the first to be interviewed; he or she supplies information and his or her statement is taken by the investigator. Complainants are also prosecution witnesses in the criminal proceedings.

The effectiveness of these investigations is also safeguarded by the general measures adopted by the Cyprus government after the European Court's judgments (see below, especially section II.2).

 General measures

II.1. Interim measures awaiting the entry into force of comprehensive legislative reforms

Immediately following the delivery of the present judgments, the Attorney General of Cyprus and the Minister of Justice and Public Affairs took a number of measures to enable Cyprus to meet its obligation under Article 46, paragraph 1, of the Convention, to prevent new violations as far as possible pending the legislative and other reforms made necessary by the present judgments. These measures are outlined below, in sections II.2.b and II.3.b-c.

A more general reflection also rapidly started on the more comprehensive measures required effectively to prevent new violations of the present kind. The resulting legislative and other measures are presented below.

II.2 General measures adopted for the prevention of similar violations of Articles 3 and 13[3]

II.2.a. Legislative amendments to enhance arrested and detained persons' protection from torture or inhuman or degrading treatment by members of the police and prosecution in such cases

i) New legislation for the effective protection of persons in detention from ill-treatment

The “Rights of Persons under Arrest and Detention Law 2005”, which entered into force on 30 December 2005[4], includes a series of provisions in particular aimed at better implementing constitutional protection from torture or inhuman or degrading treatment or punishment. The major provisions of this Law are the following:

(a) All detainees now have a statutory right to be protected from torture or inhuman or degrading treatment or punishment or “any other physical, psychological or mental violence”;

(b)The Law expressly states that the state is under an obligation to ensure the above right;

(c) Detention centres' principals are under an obligation to care for the detainees' physical and mental health;

(d) Detention centres' principals are under an obligation to ensure that minor (under the age of 18 years) detainees are separated from adults;

(e) Women detainees should be separated from men; special protection measures should be taken for pregnant detainees or for those with newborn children;

(f) Detainees have the right to medical checks, care and supervision by private medical doctors of their own choice or by State medical doctors;

(g) A list of detainees' rights should be held in every cell, at least, in Greek, Turkish and English.

These new statutory rights and obligations play an important role in improving the criminal and civil liability of the state and of principals of detention centres in case of abuse.

ii) New legislation providing for heavier sanctions against offending police officers

The “United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Ratification) Laws” of 1990 and 1993 have, by the amendments which came into force on 13 December 2003, been extended to cover cruel, inhuman or degrading treatment. It was thus an offence at the time of the events in question, for any person, including a member of the police, to subject another person to torture. Commission of the offence by members of the police carried a heavier sentence than its commission by other persons and was punishable with imprisonment for up to five years, instead of for up to three years.

As a result of these above amendments, members of the police committing the offence of inhuman, cruel or degrading treatment or punishment, are now exposed to even heavier sanctions (sentence of four to seven years' imprisonment maximum) than was earlier the case.

iii) Enlargement of personal scope of police officers' criminal liability and new evidentiary rules

By virtue of these legislative amendments, in cases where ill-treatment is alleged to have been committed at police stations during detention of the complainant, it is not only the members of the police actually perpetrating the acts of ill-treatment who are subject to criminal liability (for torture, or inhuman or degrading treatment, or for assault, as the case may be), but also the officers in charge, provided that it is ascertained by medical examination carried out at any time before the complainant's release from the station, or immediately after, that he/she bears external injuries which he/she did not have at the time of admission.

This criminal liability of officers is not dependent on whether the actual perpetrators are identified by the investigation. The finding of such injuries, gives rise to a presumption that the complainant was ill-treated by a member of the police at the police station of his detention, and that the police officers in charge of the station and of the investigation bear responsibility for the ill-treatment unless they give a reasonable explanation as to the injuries having been caused otherwise than by ill-treatment of the complainant by a member of the police (for example self-inflicted, or inflicted by another detainee or visitor at the station).

In the absence of a reasonable explanation, the officers concerned are considered to have committed the criminal offence carrying a term of imprisonment for up to two years, and if the ill-treatment qualifies as torture, or as inhuman, cruel or degrading treatment or punishment, for up to four and three years respectively.

The introduction of this new legislation aims at eliminating the possibility of impunity in cases in which, although there may be sufficient evidence of injuries having been sustained by the complainant at a police station, there is not sufficient, or any evidence as to the identity of the policeman concerned, so that criminal proceedings can be instituted. It thereby considerably limits the Attorney General's discretion pertaining to the initiation of criminal proceedings against offending police officers.

II.2.b. Creation of a more effective legal framework for independent investigations

i) Strengthening the Attorney General's power to appoint independent criminal investigators

On 3 October 1996, the Cypriot Council of Ministers delegated to the Attorney General the power to appoint independent criminal investigators in cases where a written complaint has been addressed to him.

As an interim measure, following the judgments of the Court, the Council of Ministers, by decision of 22 March 2001, strengthened the powers of the Attorney General, so that he could also appoint independent criminal investigators ex officio, i.e. even without any written complaint by the victim. The aim of this measure was notably to allow for rapid and effective investigations into the violations established in the present cases (see above section I, Individual Measures).

ii) Enhancement of the effectiveness of investigations carried out by independent investigators

In addition to the above measures, the Deputy Attorney General issued a circular on 20 September 2004 entitled “Criminal investigations by independent criminal investigators appointed by the Attorney General of the Republic concerning allegations of commission of criminal offences by members of the police which concern human rights violations”. It was addressed to criminal investigators and all members of the Attorney General's Office.

In accordance with the circular, which is binding in form, in cases of decisions not to file criminal proceedings against any member of the police, after an evaluation of evidential material, a letter should be sent to the complainant/victim or their lawyer or other person having made the relevant allegations (whether these were brought to the Attorney General's knowledge directly or indirectly), informing them that the independent criminal investigator appointed by the Attorney General has completed the investigation, and that, following the study and evaluation of all collected evidential material submitted, the Attorney General's Office is of the view that, for reasons which shall be stated in the letter, this does not warrant the filing of criminal proceedings against any member of the police.

The same circular also provides that if at the stage of evaluation of evidential material collected and submitted by the criminal investigator, or at any other stage of the criminal investigation, it comes to the knowledge of the Attorney General's Office through the criminal investigator or in any event from the investigation file that the complainant/victim withdraws his or her allegations, or does not wish the investigation to continue, or is unco-operative, or that at present the complainant/victim or substantial witnesses are not in the Republic of Cyprus and cannot be traced, the investigation file must remain open until the investigation is completed. Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue/complete the investigation, they may not do so indefinitely. Consequently, a decision as to whether or not to file criminal proceedings is not required at that stage. Henceforth, the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney General's Office considers that, in the circumstances, the investigation for the time being cannot proceed further. The investigation and the matter of whether or not to bring criminal proceedings thus remain open, with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved.

II.2.c. Improved legal aid - Enactment of “Legal Aid Law 2002”

According to the “Legal Aid Law 2002”, in force as from 9 August 2002, legal aid in civil as well as criminal proceedings is now granted to victims of human rights violations. It is noted that relatives of persons who allegedly died as a result of a serious police abuse may also benefit from legal aid.

II.2.d. New legislation providing for an actionable compensation claim by detainees

In case of violation of any of the rights enshrined in the “Rights of Persons under Arrest and Detention Law 2005” mentioned above, detainees have a reinforced constitutional right to lodge an action for damages against the state and member of the police, the detention centre or the prison where they are or have been detained. This is without prejudice to any other right to compensation provided for by law.

II.3 General measures adopted for the prevention of new violations of Article 5, paragraph 1, and of Article 2 of Protocol No. 4 to the Convention

II.3.a Enactment of “The Rights of Persons under Arrest and Detention Law 2005”

This Law, which entered into force on 30 December 2005, introduces clear legal safeguards to guarantee the lawfulness of arrest and detention and may thus also help to prevent unlawful restrictions of freedom of movement. The major provisions of the Law are the following:

(a) every person arrested has a right to contact immediately by phone, in person and in private, a lawyer of their own choosing and to be informed of their rights in a language they understand; Members of the police who violate the rights concerning contact with a counsel commit a criminal offence punishable with a term of imprisonment of up to six months and/or a fine up to 1 000 Cyprus pounds. Members of the police who violate detainees' right to be informed of their rights commit a disciplinary offence.

(b) the arrested and detained persons have a right to private interviews with counsel and to send and receive correspondence;

(c) the Law criminalises deprivation of liberty contrary to Article 11 of the Constitution, corresponding to Article 5 of the Convention. In particular, it is now a criminal offence, punishable by imprisonment for up to three years, for a member of the police to deprive a person of their liberty by arrest or detention which does not fall within the instances of arrest or detention permissible under paragraphs (a)-(f) of Article 11.2 of the Constitution. Like Article 5 of the Convention, Article 11 of the Constitution safeguards the right to liberty and security of person and prohibits deprivation of liberty save for arrest or detention in instances expressly referred to in the above paragraphs (largely identical to paragraphs 1a-f of Article 5 of the Convention);

(d) the Law criminalises and provides the same term of imprisonment for deprivation by police members of a person's liberty by arrest without a judicial arrest warrant, except for cases of arrest of persons when in the act of committing an offence carrying a term of imprisonment.

II.3.b. Training in human rights of police departments and police academies

The Cyprus police adopted the Council of Europe programme “Police and Human Rights 1997‑2000” and organised a “Human Rights Week” in 2000. Seminars and lectures were organised during that week in the Cyprus police academy, in every town and in all Police Divisional Headquarters and stations.

A Police Human Rights Office was established in 1998, headed by the Police Co-ordinator for Human Rights Issues. This office collects monthly statistical data concerning complaints of ill treatment by or against police officers. Over the past years the office has translated into Greek, published and distributed to all members of the police and to the public a number of relevant Council of Europe instruments and documents, including Declaration 690 (1979) of the Parliamentary Assembly of the Council of Europe and the CPT Standing Orders.

Additional relevant Council of Europe documents have also been translated, published and distributed to all members of the police. These include "Discussion Tools – Police and Human Rights Training Manual" and "A Pamphlet for the Police: Human Rights and their Protection under International Law". The Cyprus police also apply the Council of Europe Recommendation on the European Code of Police Ethics and have translated into Greek Recommendation Rec(2001)10 of the Committee of Ministers to member states and the Explanatory Memorandum on the European Code of Police Ethics.

Police officers are also trained in human rights, in particular with respect to investigation methods, during their initial and in-service training, and special educational programmes, seminars and lectures are organised on both human rights and asylum issues. The above judgments were rapidly integrated into this police training. Specific attention has been paid to the necessity of preventing unlawful restrictions on freedom of movement by police forces.

In addition, the Minister of Justice and Public Order and the Chief of Police, in the context of the strengthening of police training in human rights protection (started in 1997), have sent circular letters to Police Divisional/Departmental and Unit Commanders, instructing them and their officers to respect human rights fully during arrest, interrogation and detention of suspects and to pay particular attention to the Constitution, international conventions and the laws of Cyprus that safeguard human rights.

II.3.c. Publication and dissemination of the judgments to the authorities concerned – Implementation by Cyprus of Recommendation Rec(2002)13 of the Committee of Ministers to member states on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights

As an interim measure, the Attorney General rapidly, in March 2001, sent written instructions to the Chief of Police, the Ministry of Justice and Public Order, the Ministry of Interior and the Director of the Central Intelligence Service, requiring them to acquaint all members of the Republic's security forces exercising powers of arrest, detention and interrogation with the Court's judgments and to caution them that treatment of persons contrary to Article 3 of the Convention would not be tolerated and would not result in the impunity of the persons responsible.

The Attorney General also rapidly, in March 2001, sent letters to the Ombudsman, the National Institution for Human Rights, the Human Rights Committee of the House of Representatives and the Cyprus Bar Association, drawing their attention to the violations found by the European Court in the present cases.

The government also points at initiatives to publish the Court's judgments on the website of the Cyprus Bar Association () and in the widely-read Cyprus Law Journal, 2004, issue no 2, 66 ff and issue no 3, 77 ff respectively.

Finally, the government stresses that, in line with the Recommendation Rec(2002)13 mentioned above, a meeting was held on 7 June 2004 at the invitation of the Attorney General's Office for the purpose of making arrangements for a more regular publication and dissemination of judgments of the Court. It was decided that the Human Rights and Liberties Section of the Attorney General's Office would: (a) identify all judgments of the Court that, according to the above-mentioned Recommendation, need to be translated and disseminated; (b) provide for their translation and their transmission to the Cyprus Bar Association, which would publish them on its above-mentioned website, as well as in the Cyprus Law Journal; (c) identify and transmit judgments of the Court to the relevant authorities, in line with paragraph 6 of the above-mentioned Recommendation.

III.Conclusion

The Government of Cyprus considers, in view of all individual and general measures adopted, that Cyprus has satisfied its obligation, under Article 46, paragraph 1, of the Convention to abide by the European Court's judgments in the present cases.

[1] Judgment in the Egmez case, paragraph 65.

[2] See also below section II.2.b.

[3] The general measures described below in section II.3 are also pertinent to the present section.

[4] See also below section II.3.a.

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