THIRD SECTION
DECISION
Application no. 57596/12
Maria HERAKLEOUS and others
against Cyprus
The European Court of Human Rights (Third Section), sitting on 20 June 2017 as a Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 8 August 2012,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mrs Maria Herakleous, is the widow of Mr Michael Herakleous, who was killed on 11 July 2011, while serving in the National Guard, as a result of an explosion at the Evangelos Florakis naval base near the village of Mari. The second and third applicants, Andreas Herakleous and Solonas Herakleous, are their sons. The applicants are Cypriot nationals and were born in 1967, 1996 and 1991 respectively. They all live in Nicosia.
2. The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants and as apparent from documents accessible to the public, may be summarised as follows.
4. On 11 July 2011 at around 5.50 a.m. an explosion occurred on the Evangelos Florakis naval base. This was caused when ninety-eight containers of explosives, mainly gunpowder, burst into flames. These had been stored out in the open on the base since February 2009, after being confiscated from a Cyprus-flagged Russian-owned vessel – the Monchegorsk, heading from Syria to Iran – for violation of United Nations Security Council’s weapons sanctions. Thirteen people were killed by the explosion and sixty-two people were injured. Substantial damage to property was caused and there was significant financial damage and loss.
5. By an order dated 20 July 2011, and pursuant to the Commissions of Inquiry Law (Cap. 44, as amended at the time by Laws nos. 37/1982 and 84/1983), the Council of Ministers appointed a lawyer in private practice, Mr P.G.P, as a one-member commission of inquiry (“the investigator”), to look into the explosion and the circumstances which had led to it, as well as potential responsibility for the explosion.
6. On 3 October 2011 the investigator submitted an extensive report of over 600 pages to the then President of the Republic (“the President”), the President of the House of Representatives and the Attorney-General. In this, he stressed that, as an investigator appointed under the relevant law, he did not constitute a disciplinary or judicial authority, nor did he act as a coroner. His duties were purely investigative, and his findings and recommendations were not binding. He could not determine or establish legal or criminal responsibility. Any decisions in respect of possible criminal responsibility leading to a prosecution lay exclusively within the competence of the Attorney-General under Article 113 of the Constitution, following a police investigation in accordance with his instructions (see paragraph 17 below). Decisions as to actual criminal responsibility lay exclusively with the courts. He observed that, in his investigation, he had mainly dealt with possible State and/or political responsibility (πολιτειακές και/ή πολιτικές ευθύνες). He was of the opinion, however, that although he could not determine or establish criminal responsibility, he had the right and obligation to express general views on the matter.
7. The investigator, giving detailed reasons for his decision, concluded that both the Minister of Defence and the Minister for Foreign Affairs had very serious responsibilities, both statutory (θεσμικές) and personal. However, he found that the main responsibility lay with the President, who was the head of the State and the Government. The President bore the greatest responsibility for the inadequacy (ανεπάρκεια), negligence and remissness (ολιγωρία) that had been shown, and had failed to take care of or at least take basic measures to ensure the security of the citizens of the Republic of Cyprus, and in particular that of the soldiers and firemen in question. The fate of the cargo had been decided by the executive, which, headed by the President, had completely failed to take the necessary measures to handle the matter, including keeping the cargo safe in Cyprus. The investigator pointed out that the President, over and above his state office and his institutional capacity (πέραν του πολιτειακού του αξιώματος και της θεσμικής του ιδιότητας), had undertaken to deal with the dangerous cargo himself, had had ultimate control over it and had been responsible for taking important decisions on the subject. The investigator also emphasised and explained that he referred not only to the President’s statutory and ex officio (θεσμική και εξ’αξιώματος) political responsibility, but also his significant personal responsibility for the tragic event and its consequences.
8. His comments concerning criminal aspects were general and did not attribute criminal responsibility to any particular person. He expressed the view that the Attorney-General had a duty to examine the possibility that a number of criminal offences might have been committed, including the offences of manslaughter and causing death by reason of a rash, reckless or dangerous act (πρόκλησης θανάτου λόγω αλόγιστης, απερίσκεπτης ή επικίνδυνης πράξης) under sections 205 and 210 of the Criminal Code (Cap. 154).
9. The applicants submitted that the Attorney-General had publicly stated that the report would be taken into consideration in the relevant police investigations, and that such investigations had in fact been initiated in accordance with his instructions. According to the applicants, the relevant police reports were handed to the Attorney-General towards the end of 2011 or the beginning of 2012, but they contained no reference to the President.
10. By a letter dated 11 November 2011 the applicants’ lawyer requested that the Attorney-General seek leave from the Supreme Court to lift the President’s immunity from criminal prosecution. It appears that a similar request had already been made to the Attorney-General by the families of some of the other victims. In the above letter, the applicants’ lawyer expressed the view that the relevant acts and omissions of the President had constituted the offence of manslaughter and had been committed during his term of office and in the exercise of his functions, and not in his private capacity, as alleged in the request made by the other families. It appears that both requests remained unanswered.
11. As the Attorney-General did not take the steps requested, on 14 February 2012 separate applications were filed by the applicants (application no. 3/2012) and the relatives of other victims (applications nos. 1/2012 and 2/2012) under the relevant procedural rules (Rule 15 of the Supreme Constitutional Court Rules of 1962; see paragraph 20 below) for leave to commence proceedings in the Supreme Court for the interpretation under Article 149(b) of the Constitution of certain alleged ambiguities in the Constitution. In the applicants’ application and in application no. 2/2012, those ambiguities concerned the interpretation of the allegedly vague and imprecise terms “offence involving dishonesty” and “offence involving moral turpitude” in Article 45 § 3 of the Constitution, as well as “any offence committed by him [the President of the Republic] in the execution of his functions” in Article 45 § 5 of the Constitution (see paragraphs 18-20 below), and the conflicting interpretation by the applicants and the Attorney-General concerning the possibility of the President being criminally prosecuted before the end of his mandate for his acts and omissions in his handling in general of the matter of the dangerous explosives. As regards the remaining application (no. 1/2012), this focused on a number of disagreements with the Attorney-General as to the provisions of Article 45 and its alleged vagueness.
12. The applications were heard together by the Supreme Court (Full Bench), which rejected them on 29 June 2012.
13. In its decision, the Supreme Court observed that the applicants maintained that the terms “offence involving dishonesty” and “offence involving moral turpitude” included manslaughter, and that they relied on alleged statements by the Attorney-General that the above terms did not cover this offence. The Attorney-General, however, denied that such statements had any legal consequence, even if they had been made. He could not remember making them. It was also admitted that the letters to him on this point from the plaintiffs had never been answered. The question which arose was whether, even if the Attorney-General had made such statements, this disagreement would constitute a “difference of opinion” within the meaning given to this term by the relevant jurisprudence (such a difference being a prerequisite for the Supreme Court’s jurisdiction under Article 149(b) of the Constitution). The Supreme Court considered that this was not the case. It stated that it was not possible for any citizen who disagreed with another person or an authority, by means of only one simple disagreement, to create a “difference of opinion” which would satisfy the relevant provisions of the jurisprudence. Accepting such a position, as proposed by the applicants in the applications before it, would amount to recognising in every case an actio popularis. Moreover, accepting to undertake to interpret the Constitution in the case would simply and solely be a decision on a difference of opinion which constituted a theoretical question, since it could not lead to any consequence. If and when the Attorney-General decided to prosecute the President, only then would it be possible to raise the question of interpretation, and it would then be the duty of the Supreme Court, within the framework of the appropriate procedure, to judge and decide on the content, meaning and legal consequences and effects of the relevant Constitutional provisions. Otherwise, it was not the duty of the Supreme Court to solve theoretical problems and questions which would not themselves have legal consequences. In view of its conclusion about the non-existence of a “difference of opinion”, the Supreme Court stated that there was no need to rule on the other preconditions which needed to be satisfied in order for the leave sought to be given.
14. In the meantime, on 12 March 2012 the Attorney-General had brought criminal proceedings (case no. 4904/2012) against six high-ranking officials before the Larnaca Assize Court: the former Minister for Foreign Affairs, the former Minister of Defence, the former Deputy Commander of the National Guard, the Commander of the Fire Service, the Deputy Commander of the Fire Service (Διευθυντής της Πυροσβεστικής Υπηρεσίας και Αναπληρωτής Διευθυντής της Πυροσβεστικής Υπηρεσίας), and the Chief of the Special Unit for Disaster Response (Ε.Μ.Α.Κ.-Ειδική Μονάδα Αντιμετώπισης Καταστροφών) (“the first, second, third, fourth, fifth and sixth defendants”). They were charged with manslaughter and causing death by reason of a rash, reckless or dangerous act under sections 205 and 210 of the Criminal Code. They each faced separate charges.
B. Subsequent developments
15. On 9 July 2013 the Larnaca Assize Court gave judgment. The first and third defendants were acquitted; the second defendant was found guilty of both offences and was sentenced to five years’ imprisonment; the remaining defendants were found guilty of the second offence pursuant to section 201 of Cap. 154, but were acquitted of the remaining charges. They received a two-year sentence of imprisonment.
16. The second, fourth, fifth and six defendants lodged appeals against their conviction and sentence before the Supreme Court (appeal nos. 145/2013, 154/2013-156/2013). The Attorney-General also filed appeals in so far as the first-instance judgment concerned the first, second, and fourth to sixth defendants (appeal nos. 157/2013-163/2013). On 19 December 2014 the Supreme Court dismissed the appeals lodged by the second, fifth and sixth defendants and the corresponding appeals of the Attorney-General, as well as an appeal lodged by the Attorney-General concerning the acquittal of the first defendant. Further, it upheld the appeal of the fourth defendant against his conviction, acquitting him of all charges. Consequently, it dismissed the appeals against his conviction and sentence.
C. Relevant domestic law
1. The Attorney-General of the Republic: institution of criminal proceedings
17. Under the Constitution, the Attorney-General is an independent officer of the Republic (Article 112). Article 113 § 2 of the Constitution provides that:
“The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.”
2. The President of the Republic: immunity
18. Pursuant to Article 45 of the Constitution, the President enjoys immunity from criminal prosecution during his term of office. However, this is not absolute, the exceptions being high treason and offences involving dishonesty or moral turpitude. The above-mentioned provision provides as follows:
Article 45
“1. The President or the Vice-President of the Republic shall not be liable to any criminal prosecution during his term of office except under the provisions of this Article.
2. The President or the Vice-President of the Republic may be prosecuted for high treason on a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court upon a resolution of the House of Representatives carried by a secret ballot and a majority of three-fourths of the total number of Representatives:
Provided that no such resolution shall be taken and no item shall be entered on the agenda or debated in the House of Representatives in connection therewith unless the proposal for such resolution is signed by at least one-fifth of the total number of Representatives.
3. The President or the Vice-President of the Republic may be prosecuted for an offence involving dishonesty or moral turpitude upon a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court with the leave of the President of the High Court.
4. (1) The President or the Vice-President of the Republic upon being prosecuted under paragraph 2 or 3 of this Article shall be suspended from the performance of any of the functions of his office and thereupon the provisions of paragraph 2 of Article 36 shall apply.
(2) The President or the Vice-President of the Republic on any such prosecution shall be tried by the High Court; on his conviction his office shall become vacant and on his acquittal he shall resume the performance of the functions of his office.
5. Subject to paragraphs 2 and 3 of this Article the President or the Vice-President of the Republic shall not be liable to prosecution for any offence committed by him in the execution of his functions but he may be prosecuted for any other offence committed during his term of office after he ceases to hold office.
6. No action shall be brought against the President or the Vice-President of the Republic in respect of any act or omission committed by him in the exercise of any of the functions of his office:
Provided that nothing in this paragraph contained shall be construed as in any way depriving any person of the right to sue the Republic as provided by law.”
3. The Supreme Court’s jurisdiction in the interpretation of the Constitution and the relevant procedure
19. Under Article 149(b) of the Constitution, in the event of ambiguity, the Supreme Court has exclusive jurisdiction to interpret the Constitution in any manner, due regard being had to the letter and spirit of the Zurich Agreement of 11 February 1959 and the London Agreement of 19 February 1959.
20. Pursuant to Rule 15(2)(b) of the Supreme Constitutional Court Rules of 1962, as applied by the Supreme Court, when a reference is not made by a court, proceedings under, inter alia, Article 149(b) of the Constitution shall be commenced “with the prior leave of the Supreme Court, or any two judges acting in agreement, applied and obtained for the purpose, and in such manner as it may be directed upon granting such leave”.
COMPLAINT
21. The applicants complained under the procedural limb of Article 2 and under Article 13 of the Convention that an effective investigation had not been carried out into the death of Mr Michael Herakleous, as the Attorney-General had not taken any steps to lift the immunity of the President in order to include him in the police investigations and bring criminal proceedings against him.
THE LAW
22. It was the position of the applicants that the Attorney-General had failed to conduct an effective investigation into the death of their relative in so far as the President was concerned. In their view, this was in breach of the procedural aspect of Article 2 of the Convention as well as Article 13 of the Convention. The applicants did not complain that Article 2 had been breached in its substantive aspect.
23. The Court observes that, in the present case, Mr Michael Herakleous, along with other persons, died in an explosion when containers of explosives which had been stored by the State out in the open on the Evangelos Florakis naval base for more than two years burst into flames. Storing explosives constitutes a dangerous activity that could put people’s safety at risk. In the present case, lives were lost as a result of a dangerous activity known to and under the responsibility of the State (see, mutatis mutandis, Mučibabić v. Serbia, no. 34661/07, § 126-127, 12 July 2016, and Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 69-74, ECHR 2004‑XII). In this connection, the Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State, but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This is also the case in the context of dangerous activities (see, among many authorities, Mučibabić, §§ 124-127, cited above; Binişan v. Romania, no. 39438/05, § 53, 20 May 2014; Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, §§ 220-223, 5 December 2013; Iliya Petrov v. Bulgaria (dec.), no. 19202/03, 24 April 2012; and Öneryıldız, cited above).
24. In the light of the above considerations and its case-law, the Court finds that the applicants’ complaint falls to be examined under the procedural limb of Article 2 § 1 which provides as follows:
“1. Everyone’s right to life shall be protected by law.”
1. The applicants’ submissions
25. Referring to the Court’s judgments in the cases of Rantsev v. Cyprus and Russia, (no. 25965/04, §§ 232-233, ECHR 2010 (extracts)), Öneryıldız (cited above, §§ 93-94) and Egmez v. Cyprus (no. 30873/96, §§ 99-100, ECHR 2000‑XII), the applicants submitted that the State, through the Attorney-General, had been under a duty to effectively investigate the fatal explosion that had led to their relative’s death and bring criminal proceedings against all those responsible. This, however, had not been done in so far as the President was concerned. They relied heavily on the findings of the investigator in this respect.
2. The Court’s assessment
(a) Applicable principles
26. The Court reiterates that, where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see, amongst many authorities, Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 188, 28 February 2012, and Öneryıldız, cited above, § 91).
27. In this connection, the Court has held that if the infringement of the right to life or physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case, and may be satisfied if civil, administrative or even disciplinary remedies are available to the victims (see Kolyadenko, cited above, § 189, with further references).
28. However, in the particular context of dangerous activities, the Court has considered that an official criminal investigation is indispensable, given that public authorities are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused an incident. It has held that, where it is established that the negligence attributable to State officials or bodies on that account goes beyond error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see Öneryıldız, cited above, § 93).
29. To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost or put at mortal risk as a result of a dangerous activity, if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which an incident has taken place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue (see Kolyadenko, cited above, § 191, with further references).
30. That said, the requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (Öneryıldız, cited above, § 95).
31. Although the authorities should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished, the Court has repeatedly stated that the investigative obligation under Article 2 concerns the means to be employed and not the results to be achieved (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, ECHR 2016). Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence, or an absolute obligation that all prosecutions result in convictions, or indeed in a particular sentence (see, inter alia, Kolyadenko, § 192, and Öneryıldız, § 96, both cited above; see also Mustafić-Mujić and others v. the Netherlands (dec.), no. 49037/15, § 107, 30 August 2016). Rather, the Court’s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (see Armani Da Silva, cited above, § 257).
(b) The Court’s assessment
32. The Court notes that, in the present case, after the explosion of 11 July 2011, an investigation was promptly carried out by an investigator, a lawyer in private practice, appointed by the Council of Ministers (see paragraph 5 above). On 3 October 2011 the investigator submitted his findings to the President, the President of the House of Representatives and the Attorney-General (see paragraph 6 above). As submitted by the applicant, a police investigation was then carried out and on 12 March 2012 criminal proceedings were brought against six high-ranking officials (see paragraph 14 above). Those proceedings were concluded on 19 December 2014 following appeals, and resulted in three convictions for manslaughter and/or causing death by reason of a rash, reckless or dangerous act (see paragraphs 15-16 above).
33. The Court points out that the applicants do not complain about the authorities’ response in the aftermath of the explosion. They do not complain about the investigation carried out by the investigator – on the contrary they rely on it. Nor do they complain about the ensuing police investigation and criminal proceedings before the domestic courts to the extent they concerned the six officials. Indeed, the applicants have not made any submissions before the Court suggesting that those were in any way inadequate. It is also worth noting that the applicants do not raise an issue with the decision of the Supreme Court of 29 June 2012 refusing their application under Rule 15 of the Supreme Constitutional Court Rules.
34. The applicants’ complaint relates solely to the President: drawing support from the investigator’s findings, they argue that the Attorney-General should have taken steps to lift the President’s immunity to include him in the police investigation and bring criminal proceedings against him. This, in their view, is the reason why the State fell short of its procedural obligation under Article 2. It is therefore the sole issue before the Court in the present case.
35. To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant (see Mustafić-Mujić, §§ 102 and 108, and Armani Da Silva, §§ 259-260, both cited above). In fact, it has shown deference to Contracting States both in organising their prosecutorial systems and in taking individual prosecutorial decisions (see Armani Da Silva, § 259).
36. The findings of the investigator did not concern criminal responsibility, as this was not within his competence and his findings were not binding (see paragraph 6 above). Pursuant to the Constitution, it is the Attorney-General, an independent officer, who decides whether there is enough evidence to justify criminal proceedings in respect of a particular person (see paragraphs 6 and 17 above). The applicants have not complained regarding any “institutional deficiencies” in the criminal justice or the prosecutorial system that could raise an issue under Article 2 (contrast Kolevi v. Bulgaria, no. 1108/02, § 209, 5 November 2009; see also an analysis of the relevant case-law in Armani Da Silva, cited above, §§ 259-261). Nor is this a case in which any question of the authorities’ responsibility for the deaths was left in abeyance (ibid., § 283; contrast, for example, Öneryıldız, cited above, § 116, in which there had been no recognition of the responsibility of the public officials for the death of the applicant’s relatives, and Egmez, cited above, § 100, in which no steps had been taken by the Attorney-General against any of the police officers involved).
37. In this connection, the Court emphasises that Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence (see paragraph 31 above). Nor is it the Court’s task to interpret the applicable domestic law provisions - in the present case the Constitution - and decide whether, in the circumstances, the Attorney-General could or should have lifted the President’s immunity, opening the way to a police investigation (see Article 45 § 3 of the Constitution; paragraph 18 above).
38. Having regard to the above, it cannot be said in the present case that the domestic authorities failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation capable of leading to the establishment of the facts and identifying and, if appropriate, punishing those responsible.
39. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 July 2017.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
Full & Egal Universal Law Academy