AS TO THE ADMISSIBILITY OF
Application No. 23282/94
by Demosthenis DEMOSTHENOUS
against Cyprus
The European Commission of Human Rights sitting in private on
16 January 1995, the following members being present:
MM. C.A. NØRGAARD, President
C.L. ROZAKIS
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 January 1994
by Demosthenis DEMOSTHENOUS against Cyprus and registered on
20 January 1994 under file No. 23282/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 July 1994 and the observations in reply submitted by the
applicant on 2 November 1994;
- the parties' oral submissions at the hearing on 16 January 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen, born in 1961, and resident
in Limassol. Before the Commission he is represented by Mr. Ach.
Demetriades, a lawyer practising in Nicosia.
The facts of the present case, as they have been submitted by the
parties, may be summarised as follows:
A. Particular circumstances of the case
On 28 July 1992 a bank robbery was committed in Limassol. The
applicant was arrested, together with other suspects, on the basis of
a court warrant one hour after midnight on 29 July 1992. He was kept
in the police headquarters of Limassol until midday, when he was taken
to the District Court (Eparhiako Dikastirio) of Limassol which remanded
him in custody.
The applicant was re-conducted to the Limassol police
headquarters and was then transported to the police station of Agios
Ioannis. After one and a half to two hours, he was taken back to the
Limassol headquarters, where he was interrogated by the Chief of the
Limassol Criminal Investigation Department (C.I.D.) and his deputy. In
accordance with the applicant, a first vague threat was expressed in
the course of that interrogation. At a certain point the interrogation
was interrupted and the applicant was transported to his house which
was searched. The applicant claims that, upon his return to the
headquarters, the two police officers mentioned above threatened him
expressly with ill-treatment in order to force him to co-operate and
give them the information they desired, such as the way in which the
robbery was committed, the origin of the weapons used and his
accomplices. The applicant insisted that he was innocent and that he
knew nothing about the robbery in question.
After his interrogation the applicant was returned to the Agios
Ioannis police station to be taken back to the Limassol police
headquarters in the evening of 29 July 1992. There he was interrogated
again by the Chief of the Limassol C.I.D. and his deputy.
At some stage in the interrogation, the applicant claims that he
was taken to another room in the C.I.D. section of the headquarters,
where the pressure and the threats by the two officers in question
continued. He insisted that he was innocent. Then two hooded persons
entered the office. One of them grabbed the applicant's shoulders and
hit his chest with his knee in the presence of the two above-mentioned
police officers. The applicant's glasses were taken off and his head
was covered with a hood. A metal container was placed on his head. The
container was then hit repeatedly and the applicant felt an acute pain
in his ears, as a result of the noise produced.
From the different voices he heard, the applicant assumed that
there must have been about five to six persons participating in this
torture.
Thereafter, he claims that both of his legs were tied with rope,
one on top of the other, and that his body was hoisted up a short way
with a pulley and tackle. Then the applicant was pushed down from the
chair on which he was sitting. As a result, he fell down forcibly and
hit his left shoulder. He was then pulled higher with his legs upwards.
His head was not touching the floor. He was hung upside down from a
hook fixed to the ceiling of the room. Someone pulled the applicant's
head slightly upwards and placed it in the metal container, while the
others continued hitting him in the stomach and all over his body. The
metal container was also hit repeatedly.
The applicant then heard his torturers warning him that they were
going to use electricity. After a few seconds the applicant felt as if
certain parts of his body, including his genital organs, were burning.
He complained that he could not breathe. In response, those present
tightened the hood around his neck so that his breathing was
effectively impaired. The applicant's body was then lowered down and
he was placed on the floor. He was sweating profusely. A fan was placed
facing the applicant's back, which made him shiver.
While the applicant was seated on the floor, someone stepped on
his handcuffs and pressed them. The applicant screamed in pain, as he
had been recently operated in the hands. He was continuously beaten,
kicked and punched. The applicant's body was again hoisted up and he
was hung upside down in the air. The hitting was repeated, together
with threats and insults. He volunteered to sign any confession. He was
again lowered down and placed on the floor. When he felt exhausted,
more electric current was administered to confirm that he was still
alive. The applicant's genital organs were again subjected to
electroshocks. The electroshocks were repeated several times all over
his entire body. On one occasion he was placed face down on the ground,
while an effort was made to force a baton in his anus. On another
occasion he was beaten on the soles of his feet (falanga method).
After the electroshocks, the applicant was ordered to get up. He
made an effort to do so, but felt he could not. Then someone pulled the
applicant up very hard by the handcuffs. This caused severe pain to the
applicant's hands.
The applicant claims that this treatment lasted for about two
hours. During all this time he was hand-cuffed. Finally, when the hood
was taken off his head, the applicant noticed two police officers in
civilian clothes. Thereafter, he was transferred to a cell in the Agios
Ioannis police station. He claims that he could not lie down or sleep
because he was in great pain.
In the morning of 30 July 1992 the applicant complained of
difficulty in breathing and of great pain in his chest. He requested
to be examined by a doctor. At midday he was taken once more to the
Limassol police headquarters, then back to Agios Ioannis and then to
the emergency ward of the Limassol hospital where he was examined by
Dr. Mou. A cardiogram was carried out on the applicant by Mr. T, a
nurse. Afterwards the applicant was returned to Agios Ioannis and then
to the Limassol station where he was interrogated again by the Chief
of the Limassol C.I.D. and his deputy.
He spent the night in Agios Ioannis and in the morning of
31 July 1992 he was transported for the last time to the Limassol
station where he was informed that he would be released, because the
police had apprehended some other suspects; these persons were
eventually convicted of the bank robbery of 28 July 1992.
It was at the Limassol station in the office of the Deputy Police
Director, after he had been officially released, that the applicant
complained for the first time about torture in the presence of police
officers, his lawyer, a relative of his -Mr. SK- and the other persons
who had been arrested with him. The applicant showed to his lawyer and
two of the latter a hook in the ceiling of an adjacent room, where he
had left his personal belongings. He claimed that the police had hung
him from the hook to torture him.
The applicant was then taken by his relatives to the emergency
ward of the Limassol hospital where he was examined by Dr. K. He was
prescribed some medicine and had an X-ray taken. Then the applicant
went to the district court before which the new suspects were expected
to appear. He re-iterated his allegations to a number of journalists
present and showed them marks of injuries on his body. The applicant's
conversation with the journalists was video-recorded and photographs
were taken. In the afternoon of the same day the applicant visited Dr.
Mar, an orthopaedic surgeon in private practice, to complain about
pains in the chest.
Later on the applicant complained to various doctors of pains,
particularly in his chest and left ear, headaches and dizziness. He
claims that his vision had become blurred and his eyes shed tears. For
a long time he could not walk well. He was psychologically affected,
suffering lapses of memory, and his sexual abilities were seriously
reduced. The applicant was examined by Dr. Z in the emergency ward of
the Limassol hospital in the afternoon of 2 August 1992, by Dr. Mar on
3 August 1992, by Dr. Mic, a specialist surgeon at the Limassol
hospital, on 6 and 11 August 1992, as well as by Dr. I, an ear
specialist in the Limassol hospital, on 6 and 11 August 1992.
On a date which is not specified, the Government appointed a
complaints committee (Symvoulio Paraponon), in accordance with the
Police Regulations, to examine the applicant's allegations. On
12 August 1992, however, the Council of Ministers revoked the
committee's mandate and ordered instead a criminal investigation under
Article 4 of the Law on Criminal Procedure.
On 10 October 1992 the applicant instituted before the District
Court of Limassol civil proceedings for damages (case No. 6177/92)
against the respondent Government. On 16 October 1992 the Chief of the
Limassol C.I.D. started before the District Court of Nicosia a private
criminal prosecution against the applicant for perjury, in that the
latter had made statements before the complaints committee and in the
course of the above-mentioned criminal investigation to the effect that
the former had tortured and ill-treated him (case No. 24500/92).
On 23 November 1992 the Chief of the Limassol C.I.D. and his
deputy were committed for trial before the Limassol Court of Assizes
(kakourgodikeio) for having tortured the applicant.
The hearing of the case began on 18 January 1993. The prosecution
did not rely on the testimony of Drs. Mou, Mic, I, K and Z, considering
that "it could be inadequate and/or incompatible with what the
prosecution considers to be accurate and credible on the basis of the
testimony and other evidence available to it". It relied on the
testimony of Dr. Mar who had examined the applicant in the afternoon
of 31 July and on 3 August 1992, that of Dr. Van, an anatomist from the
United Kingdom, who examined the applicant four and a half months after
his detention and that of a psychiatrist Dr. Ves. The court held 90
hearings and examined 25 prosecution witnesses.
The court delivered its judgment on 23 July 1993 (No. 19707/92),
finding that there was no case for the defence to answer. The court
considered that the testimony of the principal prosecution witnesses -
the applicant and one of his relatives who had been arrested with him-
"was so obviously unreliable that no reasonable court could rely on it
and convict the accused". It also considered that the applicant's
lawyer and the prosecution had committed a series of improprieties
which had tainted the evidence to such an extent that the case against
the accused should be discontinued in the interests of the proper
administration of justice. The two police officers were, as a result,
acquitted.
In the final passage, however, of its decision the court accepted
the following:
"It does not escape us that the medical and other evidence
laid before us justify the prima facie conclusion that the
complainant bore at the time of his release from police
custody signs of injuries which had been caused during the
period of his detention. It is not, however, our task to
investigate and ascertain the identity of all those who
were perhaps responsible for these injuries. Our task is to
decide on the guilt or otherwise of the accused. In
particular our task is to decide, at this stage, whether it
is justified on the basis of all the evidence laid before
us to require the accused to make a defence. On this issue,
however, we have already decided".
On the very day when the judgment was pronounced and in the light
of the above-mentioned passage the Minister of Justice and Public Order
asked the Chief of Police to inquire into the applicant's allegations.
The Attorney-General of Cyprus lodged an application for certiorari
against the judgment.
On 3 September 1993 the Council of Ministers set up a Commission
of Inquiry, under the chairmanship of an ex-judge of the Supreme Court,
with the mandate to investigate immediately and fully the methods used
by the police during the arrest, detention and interrogation of
suspects, paying special attention to complaints of torture or ill-
treatment. The Commission of Inquiry would have the powers mentioned
in section 7 of the Commissions of Inquiry Law and was ordered to
submit a report to the Council of Ministers upon completion of its
investigation. On 7 October 1993 the applicant lodged a complaint with
the Commission of Inquiry concerning his case.
On 15 October 1993 the Supreme Court rejected the Attorney-
General's application for certiorari on the ground that it was
precluded from examining such petitions after an acquittal by the Court
of Assizes. On 21 December 1993 a senior police officer submitted a
report on the applicant's case, as requested by the Minister of
Justice, in which he concluded that the applicant's complaint was
unfounded. The report relied, inter alia, on the reports of the doctors
whom the prosecution had not considered as credible witnesses in the
criminal case against the police officers.
On 22 December 1993 the lawyers of the applicant inquired with
the Attorney General's Office whether the respondent Government
accepted responsibility for his ill-treatment and, if so, what was the
sum of money they were prepared to offer by way of friendly settlement
of the civil action brought by the applicant on 10 November 1992. The
Attorney-General's Office replied on 29 December 1993 that the
Government did not accept that the applicant had been tortured by the
police and that, as a result, it was not prepared to offer him any
compensation.
On 21 February 1994 the District Court of Limassol dismissed the
civil action brought by the applicant against the Government on
10 November 1992 for want of prosecution, as the applicant failed to
file a statement of claim.
On 2 March 1994 the private prosecution brought against the
applicant on 16 October 1992 for perjury was withdrawn, after the
applicant's lawyer admitted that the applicant had never said in a
statement that he had been subjected to torture or ill-treatment by the
Chief of the Limassol C.I.D..
On 21 April 1994 the Commission of Inquiry set up on
3 September 1993 started examining in public the applicant's complaint.
The Commission heard as witnesses the applicant, the other main
prosecution witness in the criminal case against the police officers,
three other private individuals who had appeared as prosecution
witnesses in the same trial, but none of whom was a doctor, a priest
and the registrar of the court of Limassol. The Commission of Inquiry
concluded its work in December 1994. However, it has not yet submitted
its conclusions to the Council of Ministers.
B. Relevant domestic law
Section 7 of the Commissions of Inquiry Law reads as follows:
"A Commission appointed under the provisions of this Law
shall have such of the following powers as are conferred
upon it by the Order of appointment required by section 2
of this Law
a) to procure all such evidence, written or oral, and to
examine all such persons as witnesses as the Commission may
think it necessary or desirable to procure or examine;
b) to require the evidence, whether written or oral, of
any witness to be made on oath or declaration, such oath or
declaration to be that which could be required of the
witness if he were giving evidence in a Court of Law;
c) to summon any person residing in the country to attend
any meeting of the Commission to give evidence or produce
any document in his possession and to examine him as a
witness or require him to produce any document in his
possession, subject to all just exceptions;
d) to issue a warrant to compel the attendance of any
person who, after having been summoned to attend, fails to
do so, and does not excuse such failure to the satisfaction
of the Commission, and to order him to pay all costs which
may have been occasioned in compelling his attendance or by
reason of his refusal to obey the summons, and also to fine
such person a sum not exceeding fifty pounds;
e) to fine in a sum not exceeding fifty pounds any person
who, being required by the Commission to give evidence on
oath or declaration or to produce a document, refuses to do
so and does not excuse such refusal to the satisfaction of
the Commission:
Provided that, if the witness objects to answer any
question on the ground that it will tend to incriminate
him, he shall not be required to answer the question nor be
liable to any penalties for refusing so to answer;
f) to admit any evidence, whether written or oral, which
might be inadmissible in civil or criminal proceedings;
g) to admit or exclude the public from any meeting of the
Commission;
h) to call experts who will sit with the Commission
during the hearing in order to advise the Commission on any
matter coming within their area of expertise;
i) to admit or exclude the press from any meeting of the
Commission;
j) to award any person who has attended any meeting of
the Commission such sum or sums as in the opinion of the
Commission may have been reasonably incurred by such person
by reason of such attendance."
COMPLAINTS
The applicant complains that during his detention on remand
police officers subjected him to torture and severe ill-treatment,
which seriously impaired his physical integrity. He invokes in this
connection Articles 3 and 8 of the Convention.
The applicant further submits that he does not have any
effective remedies under domestic law for the above-mentioned
violations other than the criminal proceedings which were exhausted,
as there does not exist a legal aid system in Cyprus which would have
enabled him to pursue his civil action against the responsible police
officers.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 January 1994 and registered
on 20 January 1994.
On 16 May 1994 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on admissibility and merits.
On 2 June 1994 the applicant applied for legal aid. The
Government submitted their observations on 21 July 1994.
On 9 September the Commission decided to grant the applicant
legal aid.
On 2 November 1994 the applicant submitted his observations in
reply.
On 7 December 1994 the Commission decided to invite the parties
to submit oral observations on the admissibility and the merits of the
application at a hearing.
The hearing took place on 16 January 1995. In the course of the
hearing the respondent Government requested the Commission to adjourn
the examination of the case pending the outcome of the proceedings
before the Commission of Inquiry. The applicant opposed the request for
an adjournent. The Commission rejected the request.
At the hearing the parties were represented as follows:
For the Government:
Mr. Michael A. TRIANTAFYLLIDES Attorney-General of the
Republic, Agent
Ms. Yiota Kyriakidou-Zisimou Counsel of the Republic,
Law Office of the Republic
Ms Ekaterini Andreou Legal Officer of the Ministry
of Justice and Public Order
For the applicant:
Mr. Achilleas Demetriades Barrister at Law
Miss Vicky Loizides Barrister at Law
The applicant was also present at the hearing.
THE LAW
The applicant complains under Articles 3 and 8 (Art. 3, 8) of the
Convention that he was subjected to torture and severe ill-treatment
by police officers while in police custody.
Article 3 (Art. 3) of the Convention provides that no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment. Article 8 (Art. 8) of the Convention guarantees the right
to respect for one's private and family life, home and correspondence.
1. As a preliminary point the Government contend that the applicant
has not exhausted domestic remedies under Article 26 (Art. 26) of the
Convention. The civil action against the Government, which constitutes
an effective remedy in the circumstances of the case and which the
applicant has abandoned, can be re-introduced at any time, as it is not
subject to prescription. The Government do not accept that the
applicant lacks the necessary means to do so. Although domestic law
does not give plaintiffs in civil cases the possibility of applying for
legal aid, such a possibility is open for defendants in criminal
actions. The applicant, however, never applied for legal aid in
connection with the criminal proceedings instituted against him and
chose instead to be represented by counsel of his own choice.
The Government further submit that the Commission of Inquiry
constitutes another remedy which the applicant is required, under
Article 26 (Art. 26) of the Convention and the relevant case-law, to
exhaust since he decided to seize it with his complaints. In this
connection the Government make a solemn pledge that they will abide by
the findings in the report of the Commission of Inquiry regarding all
complaints made to it, including the complaint of the applicant. [If
it is found that the applicant's complaint is well-founded, the
Government undertake that all necessary steps will be taken in order
to make full redress to the applicant including the payment of
substantial compensation and the prosecution of those responsible, if
they are other than those already acquitted.]
The applicant argues that the only effective remedy in the
circumstances of his case was the criminal prosecution of the police
officers. In accordance with the case-law of the Commission, once an
effective remedy has been exhausted, the applicant is not required to
pursue other remedies which do not offer a better chance of success or
are probably ineffective. In any event, the applicant was not in a
position to continue his civil action against the Government. If one
were to judge from the costs incurred in the criminal case against the
police officers, pursuing the civil action would have been particularly
expensive for the applicant and no legal aid is available in Cyprus for
plaintiffs in civil cases.
In connection with the Commission of Inquiry the applicant
submits that its role is advisory and its real task is to make
recommendations for possible reforms of the existing system and not to
attribute fault or responsibility to anyone in connection with the
applicant's complaints. The applicant, moreover, considers that the
Commission of Inquiry was not in a position to examine in full his
case, as it did not hear any medical evidence nor did it obtain
evidence from the police officers involved.
The Commission recalls that the applicant failed to get redress
at the domestic level on three occasions, i.e. when the criminal
proceedings against the police officers accused of ill-treating the
applicant ended in their acquittal, when the Supreme Court rejected the
Attorney-General's application for certiorari against the decision of
the criminal court which acquitted the police officers, and when the
police investigation ordered by the Minister of Justice concluded that
the applicant's complaints were unfounded.
The applicant nevertheless instituted civil proceedings against
the Government, which he subsequently abandonded for financial reasons.
The Commission recalls in this connection its case-law to the effect
that the possibility of obtaining compensation may, in normal
circumstances, constitute an adequate and effective remedy in relation
to treatment contrary to Article 3 (Art. 3) of the Convention
(Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4 p. 4). It notes, however,
that, in accordance with the submissions of the parties, a plaintiff
in a civil case cannot obtain any legal aid in Cyprus. Given the
applicant's financial situation and the anticipated cost of the civil
proceedings, the Commission considers that the applicant can be excused
from pursuing the remedy in question.
The Commission finally notes that the applicant took the
initiative of submitting his complaints to the Commission of Inquiry
and recalls that, in accordance with its case-law, domestic remedies
have not been exhausted where a remedy, which cannot on the face of it
be regarded as ineffective, is still pending. The Commission takes
note, however, of the general terms of the mandate of the Commission
of Inquiry and the limited nature of the evidence which the Commission
of Inquiry heard in connection with the applicant's complaint and
concludes that this does not constitute in the circumstances of the
case an effective remedy which the applicant is required to exhaust.
As a result, the Commission finds that the application cannot be
rejected under Article 27 para. 3 (Art. 27-3) for non-exhaustion of
domestic remedies pursuant to Article 26 (Art. 26) of the Convention.
2. As regards the substance of the applicant's complaints under
Articles 3 and 8 (Art. 3, 8) of the Convention the respondent
Government submit that the applicant's credibility was put in question
on three different occasions, when the Court of Assizes in the criminal
case against the police officers considered that his testimony could
not be relied on, when the police investigation concluded on the basis
of all the medical reports that his complaints were unfounded and when
the applicant's lawyer admitted, in the course of the criminal
proceedings against the applicant, that the latter had never testified
that he had been subjected to torture or ill-treatment by the police-
officer who had instituted the proceedings. In the light of all the
above the Government cannot presently admit that the applicant had been
ill-treated by police officers while in police custody.
The applicant submits that his allegations are supported by the
judgment of the Court of Assizes in the criminal case against the
police officers, medical testimony, photographs taken and video
recordings made immediately after his release from custody as well as
by the findings of the European Committee for the Prevention of Torture
and Inhuman or Degarding Treatment or Punishment during an eight day
visit to Cyprus in November 1992 as they have been reported in the
press in August and September 1993.
In the light of the parties' observations, the Commission
considers that the application raises serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention, and no other ground for
declaring it inadmissible has been established.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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