AS TO THE ADMISSIBILITY OF
Application No. 19774/92
by Nicolaos SAMPSON
against Cyprus
The European Commission of Human Rights sitting in private on
9 May 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
Mr. M. de SALVIA, Deputy 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 20 March 1992 by
Nicolaos SAMPSON against Cyprus and registered on 27 March 1992 under
file No. 19774/92;
Having regard to the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Cypriot citizen born in 1935, residing at Nicosia
and a journalist by profession. Before the Commission he is represented
by Mr. Em. Christofides, an attorney practising in Nicosia.
The facts of the case as they have been submitted by the applicant
may be summarised as follows.
On 15 July 1974, a coup d' état carried out by members of the
military forces, overthrew Archbishop Makarios, President of the Republic
of Cyprus, and took control of the Government for eight days.
The applicant was nominated President of Cyprus.
On 31 August 1976, the applicant was convicted by the Assize Court
of Nicosia of offences against the constitutional order of the Cyprus
Republic in accordance with Sections 40 and 41 of the Criminal Code of
Cyprus. He was given a mandatory sentence of 20 years imprisonment.
On 7 February 1977, the Supreme Court of Cyprus rejected the
applicant's claim for amnesty under Section 69 of the Code of Criminal
Procedure. The Court found that the applicant, in the absence of a
legislative act, could not be granted amnesty by virtue only of an oral
general statement of amnesty made by the President, Archbishop Makarios,
on 7 December 1974.
Nevertheless, the applicant's sentence was reduced as a result of
the President's exercise of the prerogative of mercy granted to all
imprisoned on two occasions, on 17 August 1977, when his sentence was
reduced to 16 years and 8 months, and on 28 February 1978, when his
sentence was reduced to 12 years and 8 months.
On 21 April 1979, the President of the Republic of Cyprus, in the
exercise of his constitutional powers, ordered the applicant's
conditional release in order to allow his transfer to a hospital in
France. The President did not specify the exact duration of the
applicant's release but that depended on the time needed for the
completion of his medical treatment.
On 15 December 1980, as the applicant did not use his release for
the purpose of medical treatment, the President revoked his conditional
release and recalled that the applicant still had to serve the rest of
his sentence. From the initial sentence, as reduced in 1978, 10 years and
9 days remained to be served by the applicant. The applicant received
notification of the revocation order through his lawyer.
However, the applicant remained in France and did not return to
serve his sentence. The authorities of Cyprus did not request his
extradition from France.
On 27 June 1990, the applicant went back to Cyprus. He surrendered
voluntarily to the prison authorities but reserved his right to challenge
the legality of his imprisonment.
On 6 August 1991, the applicant applied for Habeas Corpus before the
Supreme Court challenging the lawfulness of his imprisonment after
27 June 1990.
On 6 September 1991, the Supreme Court (first Instance jurisdiction)
granted the applicant's request. The Court found that, although the
applicant did not serve his fixed term, his official date of release was
30 April 1989, i.e. before he surrendered to the prison authorities, and
that there were no legal grounds for his further detention. The applicant
was immediately released.
On 9 September 1991, the Attorney General filed an appeal before the
Supreme Court (second instance jurisdiction) against the Habeas Corpus
order. The Attorney General argued that the execution of the applicant's
sentence had been suspended, first, from 21 April 1979 until
15 December 1980 and, secondly, from 15 December 1980 until 27 June 1990
and that as a result his sentence was due to expire on 6 February 1994
and not on 30 April 1989.
On 25 September 1991, the applicant filed an application before the
Supreme Court (second instance jurisdiction) for the reopening of the
hearing before the Court's deliberations. The Court rejected his
application on the ground that the applicant did not provide any new
elements which would justify the re-opening of the proceedings.
By judgment of 26 September 1991, the Court allowed the Attorney
General's appeal and held that the applicant's detention after
27 June 1990 was lawful. The Court found that, although the applicant's
sentence had been suspended from 21 April 1979 until 15 December 1980,
he still had to serve this part of his sentence. Moreover, the Court
found that the conditional release merely suspended the sentence which,
as a direct consequence of the conviction, was reactivated by virtue of
the revocation of the conditional release, on 15 December 1980, and
served as an authorisation and order of imprisonment of the applicant.
After the revocation of the suspension of his sentence the applicant had
to serve the remainder of his initial term. For these reasons, the Court
found that there were legal grounds for his imprisonment after
27 June 1990.
On 26 September 1991, following the Court's judgment, the applicant
was reimprisoned.
COMPLAINTS
The applicant complains that his detention after the term of his
sentence had formally expired constitutes a breach of Article 5 paras.
1, 2, 3 and 4 of the Convention. He argues, that, notwithstanding the
fact that his sentence of imprisonment was originally fixed by law after
conviction by a competent court, he remained imprisoned although his
sentence had expired. He claims that, according to the Cypriot laws, he
could not be detained in prison after 30 April 1989 unless he had been
brought again before a court and received a fresh term of imprisonment.
Moreover he argues that, on two occasions, on 27 June 1990, when he
returned to Cyprus, and on 26 september 1991, after the Supreme Court's
judgment, he was imprisoned without a reasoned court order provided by
law.
The applicant also argues that from all those who participated in
the military coup against the legitimate government of Makarios he was
the only one to remain imprisoned while the others had already been
released. He alleges that this kind of treatment is contrary to Article
5 paras. 1, 2, 3 and 4 and Articles 6 and 14 of the Convention.
The applicant also alleges that the Supreme Court by allowing the
appeal against the Habeas Corpus writ and by rejecting the applicant's
request to reopen the hearing breached Article 6 para. 1 and Article 14
of the Convention.
Finally the applicant alleges that the above constitutes breaches
of Articles 3, 8 and 14 of the Convention.
THE LAW
1. The applicant complains that his continued detention notwithstanding
that his initial term of sentence had expired, constituted a violation
of his rights under Article 5 paras. 1, 2, 3 and 4
(Art. 5-1, 5-2, 5-3, 5-4) of the Convention, which provide as follows:
"1. Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent
court; . . .
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of
any charge against him.
3. Everyone arrested or detained in accordance with the provisions
of paragraph 1.c of this Article shall be brought promptly before
a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
The Commission finds that the applicant's complaint falls to be
examined under the provisions of Article 5 para. 1 (a) (Art. 5-1-a) of
the Convention as it is not disputed that the applicant was convicted in
1976 by a competent court.
The Commission recalls its case law according to which the
justification for a person's continued detention on the basis of a
sentence imposed on him is normally considered to have been provided by
the original conviction and that such detention therefore constitutes a
"lawful detention ... after conviction by a competent court" within the
meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (see N°
9089/80, Dec. 9.12.80, D.R. 24 p. 227). In particular, the detention must
result from, follow and depend upon or occur by virtue of the
"conviction". In short, there must be a sufficient causal connection
between the conviction and the deprivation of liberty at issue (see Eur.
Court H. R., Weeks judgment of 2 March 1987, Series A no. 114, p. 23,
para. 42).
The Commission considers that the question at issue here is whether
the applicant's detention after 27 June 1990 may be considered a lawful
detention of a person after conviction by a competent court.
The Commission recalls that the Court has confirmed that Article 5
para. 1 (a) (Art. 5-1-a) which is silent as to the permissible forms of
legal machinery whereby a person may lawfully be ordered to be detained
"after conviction", must be taken to have left the Contracting States a
discretion in the matter (see Eur. Court H.R., Monnell and Morris
judgment of 2 March 1987, Series A no. 115, p. 19, para. 47).
The Commission notes that the Supreme Court (second instance
jurisdiction) of Cyprus confirmed that the period from 15 December 1980
until 27 June 1990 during which the applicant did not serve his sentence
in Cyprus did not count towards his sentence. With this finding the court
neither imposed a fresh sentence for a fresh offence nor increased the
term of the original sentence passed by the Nicosia Assize Court.
The Commission finds that there is a clear connection between the
initial conviction and the period of imprisonment undergone after 27 June
1990. The Commission finds that the time spent in prison as from that
date by the applicant is to be regarded as "detention of a person after
conviction by a competent court", within the meaning of subparagraph (a)
of Article 5 para. 1 (Art. 5-1-a).
Therefore, the Commission concludes that there is no appearance of
a violation of Article 5 (Art. 5) of the Convention and that this
complaint is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also alleges that the Supreme Court, by sustaining the
Attorney General's appeal against the Habeas Corpus writ and by rejecting
the applicant's request to reopen the hearing on appeal, committed a
breach of Article 6 para. 1 (Art. 6-1) which provides as follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established
by law ..."
As regards the applicant's complaint about the decision ordering his
return to detention the Commission recalls that it does not concern a
decision on the "determination of any criminal charge" within the meaning
of Article 6 para. 1 (Art. 6-1) (see 7648/76, Dec. 6.12.77, D.R. 11,
p. 190).
Therefore, it follows that this complaint should be rejected as
incompatible ratione materiae with the Convention, within the meaning of
Article 27 para. 2 (Art. 27-2).
3. Finally the applicant alleges violations of Articles 3, 8 and 14
(Art. 3, 8, 14) of the Convention.
The Commission finds that these complaints are wholly
unsubstantiated. It follows that they are manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy