YAACOUB v. CYPRUS

Communicated on 28 September 2015

FOURTH SECTION

Application no. 60416/14
Hossam YAACOUB
against Cyprus
lodged on 30 August 2014

STATEMENT OF FACTS

1. The applicant, Mr Hossam Yaacoub, is a Swedish national, who was born in 1988. He is represented before the Court by Mr A. Georghiades, a lawyer practising in Nicosia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant’s arrest and his statements to the police

2. On 7 July 2012, at approximately 7.00 a.m., the applicant was arrested in his hotel room in Limassol, Cyprus. This was on the foot of an arrest warrant which the police had obtained on the basis of intelligence that the applicant was a member of a criminal or terrorist organisation and that he was in possession of explosives. While arresting the applicant the police also executed a search warrant they had obtained. The applicant’s camera and mobile telephone were retained together with certain documents: they contained nothing inculpatory.

3. At approximately 8.30 a.m. the applicant was transferred to the offices of the Criminal Investigation Department (“C.I.D.”) in Limassol. Between 12.15 p.m. and 5.40 p.m. he was questioned and gave a written statement (the first of what would prove to be six statements in total) in which he stated that he was engaged in the retail trade and was in Cyprus for the purpose of exporting products to Lebanon. He denied any links to any religious, political or terrorist organisation. He further stated that he had visited Cyprus twice in the past: in the summer of 2008 for tourism, and in December 2011 for business.

4. He also provided information on his activities in Cyprus prior to his arrest. On 5 July 2012 he had placed an order for the export of beverages with a Cypriot company. The next day he drove to Larnaca Airport, returned the car he had rented, and visited Larnaca city centre. He intended to return to the airport to change buses. However, because of heavy traffic he missed the bus to Limassol and he therefore had to wait at the airport from 11.15 p.m. until 1 a.m. for the second bus.

5. At 6.35 p.m. the applicant gave written authorisation to the police allowing them to execute a second search of his hotel room. That second search was conducted from 7 to 7.30 p.m. The applicant, an interpreter and two police officers were present. In the course of the search, the applicant’s personal belongings were seized.

6. At 8 p.m. the applicant and the officers returned to the C.I.D.’s offices where the applicant was re-arrested. At 8.10 p.m. the police officers conducted a body search of the applicant and found cash of varying amounts in different currencies.

7. Between 8.15 p.m. and 9 p.m. the personal belongings which had been seized during the hotel room search were examined in the presence of the applicant. The police found a handwritten note which said “ARKIA IZ167” (a reference to a scheduled flight from Tel Aviv to Larnaca with Arkia Israeli Airlines). Below the flight number the numbers “18:00” and “3-7” were written. The note also contained the names of two hotels and the numbers “1.18”, “2.14” and “3.10.3”. Among the applicant’s belongings the police found a red notebook, a map with a point circled in ink, an envelope which contained a letter in Swedish and 140 United States dollars.

8. On 8 July the applicant was produced before Limassol District Court. He was not assisted by counsel. In the course of the hearing the applicant stated his willingness to cooperate with the police. The court remanded him in custody.

9. On 11 July, from 3 p.m. to 7 p.m., the applicant was interviewed again by the police. He gave a second written statement in which he repeated that he was not a member of a terrorist organisation, that he had never participated in acts of terrorism, and that he had never been instructed by a third party to commit an act of terrorism or carry out any mission in Cyprus. He did not know how to use firearms or explosives. Instead, he was in Cyprus for business. To this end, he had met an accountant who had given him advice on Cypriot company law and commercial practice. He was also looking for a warehouse where he could store his products. With regards to the circled point on the map that was found in his belongings, the applicant explained that it was drawn by someone at a Cypriot car rental office to indicate a shoe shop in an industrial estate in Larnaca. Lastly, he denied having taken notes while he was at Larnaca airport: he had taken the note “ARKIA IZ167” when he was in Sweden on 26 June 2012, while he was searching for flights to Cyprus. He did not know that this was an Arkia Israeli Airlines flight from Tel Aviv. Below that note he had written the numbers “1.18”, “2.14” and “3.10.3” by coincidence. He could not recall whether he wrote those numbers on the same day he had taken a note of the flight.

10. On 11/12 July, between 11.10 p.m. and 1.40 a.m., a third statement was taken from the applicant. In that statement the applicant admitted that, on 3 July and again during the night of 6/7 July, he had visited Larnaca Airport to observe and note the arrival time of flight no. IZ167. The applicant also admitted that, for the purposes of that visit, he had tried to change his appearance by wearing glasses and a hat. He had performed these actions pursuance to instructions he had received by a man from Lebanon; he did not know whether this man was a member of Hezbollah or not. The same man had asked him to collect brochures from two hotels, the names of which had been recorded in the note found amongst his belongings. The man from Lebanon told him that, if he returned to Lebanon on Monday, he should send him two e-mails, and that they should meet the following Monday at one of three times: 10.30 a.m., 2 p.m. or 6 p.m. Finally, the applicant stated that flight no. IZ167 had arrived late on both the evening of 3 July and the night of 6/7 July. This had made him afraid because he thought something bad would happen such as someone trying to bring down the aeroplane.

11. On 13 July the applicant appeared again before Limassol District Court. This time he was represented by counsel. He repeated that he was willing to cooperate with both the police and the court. He was again remanded in custody.

12. A fourth statement was taken from the applicant on 14 July between 12.45 a.m. and 3.15 a.m. In this statement the applicant stated that his previous story about a man from Lebanon had been made up. Instead, he admitted to being a member of Hezbollah. He provided a detailed account of the way he had been recruited, his handlers’ names, military procedures, procedures for exchanging packages and so on. He had been trained to use guns and explosives and to create cover stories. He had been paid to execute missions for Hezbollah, both in Cyprus and other countries. These had been mainly for the delivery and receipt of parcels. His current mission in Cyprus was to create a cover story that he was a retailer and an importer, which he could later use to execute other missions for Hezbollah. The references to the numbers “1.18”, “2.14” and “3.10.3” in his note were references to three possible meeting times. If he received a text message, he should visit a specific place in Larnaca the next day at 6 p.m. to meet a contact. Thus, 1.18 was a reference to the first meeting at 6 p.m. (i.e. 18.00). If the person was not at the designated meeting point at that time, the second meeting would take place the next day at 2 p.m. (14.00) and, if the person was absent a second time, a third meeting would take place the day after at 10.30 a.m.

13. In a fifth statement, taken on 16 July between 8.40 p.m. and 11 p.m., the applicant elaborated on his previous missions to Cyprus. During those missions, he had been asked to find internet cafes in Limassol and Nicosia which were not equipped with surveillance cameras and which did not require or store any customer information. He had also been asked to locate Israeli restaurants in Limassol and to collect brochures from a hotel in Cyprus known to host Israeli guests, albeit without success. During his last mission to Cyprus in January 2012, he had visited, photographed and produced detailed sketches of certain public places such as the hospital and police station, and had reported whether there were any CCTV cameras or other forms of security. In addition, the applicant had also bought three SIM cards: he gave two to his handler and kept one for his own use.

14. On 20 July the applicant appeared before Limassol District Court, again with the assistance of counsel. As on previous occasions, he repeated that he was willing to cooperate with both the police and the court, and he was remanded in custody.

15. The applicant’s sixth and final statement was taken on 22 July between 10.30 a.m. and 1.30 p.m. In this statement the applicant admitted that, while at Larnaca Airport on 7 June, he had noted down the registration numbers of the two tourist buses that were used to transfer the passengers from the airport. He later encrypted the registration numbers using a special method, which he explained to the police.

2. The indictments filed against the applicant

16. On 27 July 2012 the Limassol Chief of Police filed an indictment with Limassol District Court containing seventeen counts against the applicant. These included the offences of conspiracy to commit terrorism, refusal to disclose information for the prevention of a criminal or terrorist act, espionage, participation in a criminal organisation and money laundering (see relevant domestic law and practice at paragraphs 58–68 below). The indictment covered the period 2007–2012 and the missions the applicant was said to have carried out for Hezbollah in that time. The same day the District Court committed the applicant for trial before Limassol Assize Court on 12 September 2012.

17. On 12 September 2012, the prosecution on behalf of the Attorney General filed a new indictment replacing the original seventeen counts with eight other counts. These included: participation in a criminal organisation; conspiracy to commit grievous bodily harm and to kidnap Israeli citizens; transfer of explosives and firearms; and money laundering. The new indictment was filed on the basis of section 108 of the Criminal Procedure Law, Cap. 155 (see paragraph 57 below).

18. The applicant’s counsel objected to the filing of the new indictment, arguing that section 108 did not empower the Attorney General to ignore completely the first indictment or the procedure for committing a case for trial.

19. On 28 September 2012 the Assize Court allowed the filing of the new indictment, finding that section 108 empowered the Attorney General either to add or replace a count to an indictment as long as the offence contained in that count was made out in the statements received during the investigation phase.

20. On the same day the applicant asked to be provided with further particulars on the counts contained in the new indictment. The prosecution provided those further particulars on 5 October. The case was then set for trial on 25 October 2012. On that date the applicant’s counsel requested an adjournment to allow more time for the preparation of the defence case. The court granted that request and fixed a new trial date for 20 November 2012.

3. The voir dire and the Assize Court’s ruling on the admissibility of the applicant’s statements

21. The applicant’s trial began on 20 November 2012 as scheduled. At trial, the applicant challenged the admissibility of his six statements to the police. A voir dire was held to determine the issue.

22. The applicant gave evidence during the voir dire stating the following. On 7 July 2012 he was transferred to the offices of the C.I.D. in Limassol. There he was met by a Cypriot detective and lead to a room where another man spoke to him in English and asked him to describe the events leading to his arrest. He was informed that the police were in possession of evidence indicating that he had been planning a terrorist attack. At some point the man’s phone rang and played a Hezbollah song; the man laughed and asked the applicant whether he loved Israel. Half an hour later the applicant gave his first statement in the presence of an interpreter; he then signed the authorisation for the police to search his room.

23. The applicant alleged that, when he first appeared before Limassol District Court on 8 July he was not offered counsel, nor was he informed of his right to counsel until approximately 11 or 12 July. The applicant also alleged that he had not been informed of his right to remain silent during the interviews (see the relevant domestic law and practice in paragraph 70 below).

24. According to the applicant’s testimony, on 8 July 2012, after the remand proceedings, the applicant was interviewed by a foreign intelligence officer, “Robert”, in the presence of the two Cypriot detectives. He was accused of planning a terrorist attack, of creating cover stories and of being a member of Hezbollah. The applicant claimed that, by that time he was tired and, upon hearing the accusations against him, had become very frightened.

25. On 9 July, he was subjected to a polygraph test by a French foreign intelligence officer, “François”. The polygraph test lasted for four hours. Subsequently he was transferred to a small room where he was asked by Robert to provide the name of his handlers and his mission. He was questioned again on 10 July 2012.

26. In the morning of 11 July 2012 he was interviewed again by Robert and another officer who appeared to be European, “Andreas”. The applicant then gave his second written statement to two Cypriot police officers, with the assistance of an interpreter. At 7 p.m. the same day he was transferred to an interview room where he was interviewed by Robert and Andreas. During the interview the applicant often complained to them that he was tired and asked to be allowed to rest. Instead, the officers hit him and swore at him. They also threatened that they would send him to Mossad or even to the CIA, if he was not willing to confess that he had been a member of Hezbollah planning terrorist attacks. At some point he asked to see one of the two Cypriot detectives with whom he had maintained a good relationship and had asked for the detective’s assistance. The applicant alleged that the Cypriot detective had assured him that if he cooperated with Robert and Andreas and told them what they wanted to hear, then he, the detective, would assist him. At that point the applicant explained to the Cypriot detective that a man called Rami had asked him to find out the time and date of the flight by Arkia Israeli Airlines. The foreign officers were informed of this and a while later he provided his third written statement to the two Cypriot detectives, again with the assistance of an interpreter.

27. On 12 July 2012 he was subjected to the polygraph test for the second time. On 13 July 2012 the applicant appeared before the Limassol District Court for the second remand custody proceedings but this time with the assistance of counsel. After the remand proceedings on 13 July, he was interviewed by a new foreign officer, “Patrick”, who had allegedly arrived from Israel to investigate the case. The applicant was again subjected to a polygraph test. Later he was interviewed by Robert and Andreas who again threatened and shouted at him, despite the fact that he had informed them that he was extremely tired and wished to sleep. At some point during the night of 13/14 July, one of the two Cypriot detectives, Detective C., visited the applicant, promising him that he would secure a lower sentence for him if he cooperated with the foreign officers. The applicant then provided another written statement to the Cypriot detective (his fourth). This time he told the detective to write whatever the detective considered appropriate as long as the detective allowed him to rest.

28. On 14 July 2012, two new officers arrived from the United Kingdom and Syria. They introduced themselves as “Mark” and “Ian” and said that they were specialists on Hezbollah and its work. The interview started on 14 July and continued the next day. Mark and Ian asked the applicant various questions about Hezbollah. They showed him pictures of members of the organisation and asked him whether he could recognise any of the people on the pictures. They also asked him to draw a map of the area where he resided in Lebanon; the parking area behind the Limassol General Hospital; and the area around a hotel in Limassol. The Cypriot detective encouraged him by saying that he was doing the right thing.

29. On 16 July 2012 the applicant gave another written statement to the Cypriot detectives (his fifth). The same day, a new foreign officer, “Peter”, arrived. Between 16 and 20 July 2012 the applicant was mostly interviewed by this new foreign officer. He was made to take a polygraph test again and was mostly asked for information concerning suspected terrorist acts in other countries, such as a bus explosion in Bulgaria. Lastly, on 22 July 2012 he was pressured into giving a final written statement (his sixth) under threat that, if he did not, the police officers would inform the court that he had been uncooperative.

30. In support of the applicant’s allegations as to the involvement of third parties in the interviews, the defence called a journalist who specialised in crime reporting. The journalist submitted a report which she had produced, that had been broadcast on the national television channel RIK on 17 July 2012. The report made mention of a person from Lebanon who had been interrogated exclusively by Mossad agents who had visited Cyprus for that purpose. According to the report, the Mossad agents had requested the absence of Cypriot police detectives from the interviews so as to ensure the confidentiality of the information obtained during those interviews. The journalist refused to reveal her sources in the course of cross-examination, invoking the privilege of confidentiality of sources.

31. During the voir dire, the prosecution called one of the two Cypriot detectives, Detective C., as a witness. Detective C. stated that he and another colleague had conducted the interviews: no other police officer had been present. The interviews were not video recorded but during the interviews the detective kept rough notes of the applicant’s answers (but not the questions posed), which he later recorded in the police diary of action. Detective C. testified that they continued to interview the applicant because his answers did not seem credible and he had failed to provide reasoned explanations for his actions. Moreover, the police suspected that the applicant’s actions were part of a plan to bring down an aeroplane. He further stated that, during his detention, the applicant had been in contact with members of his family, officials from the Swedish and Lebanese embassies, and his lawyer. An official from the Swedish embassy had also been present at the first remand proceedings of 8 July 2012. Hence, according to Detective C., the applicant could have complained about his alleged ill-treatment at any time. During cross-examination he denied that other officers had been present at the interviews and that the applicant had undergone polygraph tests. He further denied having made any promises to the applicant and stated that he had only explained the law and the procedure to him.

32. On 12 December 2012, the Assize Court gave a written ruling, finding that the applicant’s statements to the police could be admitted in evidence. The court dismissed the journalist’s testimony in its entirety as hearsay and found that the applicant had failed to make any complaint as regards ill-treatment. Nor had he stated that he was in fear at the pre-trial stage of proceedings. The applicant had expressed his intention to cooperate with the police at all three of his appearances before the District Court: see paragraphs 8, 11 and 14 above). The applicant’s interviews had been lengthy and many of them had been held after midnight. However, there was nothing suspicious about the length of the interviews: the applicant had been explaining the evidence in the case with the aid of an interpreter. The court was not convinced that foreign intelligence officers had been involved in the interviews. The court concluded that it was satisfied beyond reasonable doubt that the statements had been made freely and voluntarily.

4. The trial

(a) Evidence for the prosecution

33. In addition to the applicant’s statements the prosecution also relied on the following additional evidence:

(i) the applicant’s red notebook and other notes.

(ii) the evidence of hotel employees and other individuals the applicant had met during his visits to Cyprus.

(iii) the evidence of an accountant who testified that he had been contacted via e-mail by a Lebanese person, using a different name from that of the applicant, who wished to acquire information on registering a company in Cyprus. Two weeks later, the accountant met the applicant. The applicant indicated an intention to export beverages and they discussed whether it was necessary to create a registered company in order to do so. (The applicant accepted that the meeting took place but denied being the person who had written the email.)

(iv) the evidence of an employee of a company with whom the applicant had placed an order for the export of beverages.

(v) witnesses who testified that Israeli citizens stayed in the hotels mentioned in the applicant’s diary.

(vi) the evidence of the two bus drivers who had driven the buses boarded by the passengers of flight IZ167. They gave evidence that the passengers had mainly been Russian tourists on day-trips from Tel Aviv but that a sign saying “Israeli by air” had been posted on at least one of the buses’ windscreens.

(vii) CCTV footage of the applicant at Larnaca Airport on 3 July and 6/7 July 2012.

(viii) the evidence of an expert witness on Hezbollah, who gave evidence that Hezbollah was a criminal organisation and that it was dedicated to eliminating Israel, including through terrorist activities. According to the expert witness such attacks were preceded by planning and tracking down targets. In his view, the applicant’s actions constituted preparatory acts for a terrorist attack against Israeli targets.

(ix) the two interpreters at the police station who between them had been present at the police interviews when the applicant’s six statements were taken. Both denied that there were any foreign intelligence officers present at the police station when that suggestion was put to them in cross-examination. The interpreter who was present when the statement of 14 July (the fourth statement) was taken gave evidence that the applicant did not complain of tiredness or asked for the interview to be postponed.

(b) Evidence for the defence

34. The applicant’s defence was that Hezbollah was not a criminal organisation but a political party and, in any case, he could not reasonably have known that his missions had been part of an attempt to target Israelis in Cyprus.

35. The applicant was the only witness for the defence. He stated that he never read the statements he had given to the police; he had merely signed them based on the Cypriot detective’s promises and because he had been so tired that he was prepared to go along with whatever the police said as long as they allowed him to sleep. He accepted that he had been a member of Hezbollah for four years and received a monthly payment of USD 600. He had acted on instructions from his handlers, whose faces he had never seen as they were always covered. His military training from Hezbollah lasted from 2008 to 2011, during which he had learned to use firearms but not explosives. In addition to his missions in Cyprus, he had carried out other missions for Hezbollah in France, the Netherlands and Turkey. The first time he visited Cyprus was in 2009 for business purposes (he was the director of a trading company and had several business contacts in Cyprus) but all of his travel expenses had been paid by a member of Hezbollah; he did not know if the money came from Hezbollah itself. He had been entrusted with carrying out six missions in Cyprus. The purpose of each mission had been:

(i) to visit the parking area behind the old Limassol General Hospital and check whether it was monitored by security;

(ii) to buy three SIM cards, two of which he handed to one of his handlers upon his return to Lebanon;

(iii) to locate restaurants serving kosher food, although he had not found any;

(iv) to locate Internet cafes in Limassol and Nicosia, although he had never sent an e-mail or any other information to his handler while in Cyprus;

(v) to locate two meeting areas (one in Limassol and the other in Larnaca) which could be used in case of emergency; and

(vi) to visit a hotel in Limassol and gather brochures, although eventually he did not manage to do that as the hotel was under renovation. He eventually took the initiative to photograph the hotel and the surrounding area.

He never asked for, and was not aware of, the reason for these missions.

36. During his last visit in Cyprus in 2012, he had been asked to obtain brochures from two hotels, to search for warehouses and find the average rental cost, and to visit the airport and observe whether Arkia Israeli Airlines flight no. IZ167 arrived in Cyprus on 3 July and 6/7 July at the scheduled times. He had not, however, been asked to follow the flights’ passengers.

37. He denied sending any e-mails to the accountant and using a different name to introduce himself. The map found in his personal belongings had been marked by the person at the car rental shop to indicate a store in an industrial estate.

38. He accepted that, for the trip to the airport, he had been told to change his appearance. He visited the airport on both dates to check whether the flight had arrived. When leaving the airport at 1 a.m. on 7 July, he had seen the passengers of flight no. IZ167 board two buses. Although he had not been asked to follow the flights’ passengers, he had memorised the buses’ registration numbers and, on the journey back to Limassol, he had encrypted the numbers in his diary. He did not have instructions to encrypt the numbers; he had done this on his own initiative for fun. His handler had not informed him that “Arkia” referred to Israeli Airlines; he had simply been asked to observe the flights’ arrival times.

39. The applicant repeated his allegation that he had been subjected to threats and coercion from various individuals during his interviews at the police station. He had also been tricked into sketching various areas in Lebanon and the areas around the hospital and hotel in Limassol. His handler had never requested such information as he already had detailed and accurate maps for those areas.

40. With regards to Hezbollah, relying on the organisation’s new, November 2009 manifesto the applicant stated that, in contrast to the expert witness’s submissions, the ideology of the organisation was no longer the elimination of Israel. Hezbollah was a multifaceted party in Lebanon which engaged in social, political and military activities, and owned schools, hospitals and charities. He denied knowing at the time of his missions that part of Hezbollah’s pre-2009 ideology had been the elimination of Israel. He believed all he had been doing in Cyprus was confirming information Hezbollah already possessed and did not consider what Hezbollah would do with the information; he had not conspired with anyone to commit criminal acts.

(c) The Assize Court’s findings

41. On 21 March 2013, the Assize Court found the applicant guilty on five of the eight counts on the indictment, namely two counts of participating in a criminal organisation, two counts of participating in a criminal organisation which he ought to have reasonably known was connected to the commitment of crimes, and one count of money laundering.

42. The Assize Court placed particular emphasis on the applicant’s statements in reaching its decision, which it found to be corroborated by the other evidence led at trial.

43. The court found that Hezbollah fell within the description of a “criminal organisation” as set out in section 63B (3) of the Criminal Code Law (see relevant law and domestic practice in paragraphs 58 – 59). In reaching that conclusion, the court relied in part on the expert witnesses report setting out the organisation’s hostility to Israel (see point (viii) at paragraph 33 above).

44. The court noted that the applicant had not provided an innocent explanation for his actions. He had willingly turned a blind eye to the fact that his missions involved the secretive and systematic surveillance of Israeli targets, and he ought to have reasonably known that those actions could have been linked to the commission of specific criminal offences.

45. The court rejected the applicant’s submissions that his trial had been unfair owing to the fact that he had not received the expert witness report on time: he had been informed at the start of the trial that a witness would be called to testify as to the structure of Hezbollah.

46. On 28 March 2013, the Assize Court imposed concurrent sentences of four years’ imprisonment for counts four and five on the indictment (participation in a criminal organisation which the applicant ought to have reasonably known was connected to the commsion of crimes). Given their similarity to counts four and five, no further sentences were imposed in respect of the remaining counts.

5. Appeal to the Supreme Court

47. On 5 April 2013 the applicant appealed against his conviction to the Supreme Court. The applicant submitted that the substitution of the indictment had been an abuse of process by the prosecution and had breached his right to a fair trial. The applicant also submitted that the late delivery of the expert witness’s report on Hezbollah affected the preparation of his defence, in further breach of his right to a fair trial. Finally, the applicant submitted that the Assize Court had erred in concluding that his statements were voluntary owing to the fact that: (i) the court had summarily dismissed the testimony of the journalist as hearsay without considering the contents of her report in conjunction with the applicant’s testimony; (ii) the court had not taken into account the fact the police did not keep records of the interviews; and (iii) the court had failed to take into consideration the length of the interviews and statements, some of which were taken after midnight.

48. On 19 March 2013, the Supreme Court dismissed the applicant’s appeal by a majority of two (Erotocritou and Michaelidou JJ) to one (Christodoulou J).

49. Erotocritou and Michaelidou JJ upheld the Assize Court’s interpretation of section 108. They found:

“[T]he main consequence [of the new indictment] was that the number of counts was reduced from 17 to 8. Most charges on the new indictment remained the same as those on the previous indictment for which the appellant was committed on trial, while some of the counts were modified with the addition, for purposes of clarification, of new counts and details in the particulars. However, the essence of the counts did not change.”

50. As regards the expert witness’s report, the majority of the Supreme Court upheld the conclusion of the Assize Court noting that the prosecution had acted in good faith: the defence had been informed ahead of time that the expert witness would give evidence. The fact that the prosecution delayed two days in providing the expert’s report to the defence did not affect the applicant’s right to a fair trial. The trial had been adjourned for five days, and the defence had been provided time to study the report and to receive advice from their own expert. The majority also noted that, in any case, the Assize Court had placed little reliance on the expert report.

51. On the admissibility of the applicant’s statements, the Supreme Court adopted the Assize Court’s finding that the journalist’s report was hearsay since she had not revealed her sources, adding that, before the Assize Court, there was evidence that the interviews had been carried out by Cypriot police officers whereas the journalist’s report stated that they had been completely excluded from the interviews. The court concluded that the fact that the journalist’s testimony had not been taken into account was not enough to question the Assize Court’s conclusion that the applicant’s statements had been voluntary.

52. Christodoulou J dissented principally on the basis that he considered the Assize Court had erred in its decision to convict the applicant on the basis that Hezbollah was a criminal organisation and that the applicant had participated in the execution of criminal acts. According to Christodoulou J, Hezbollah was an internationally recognised organisation, many members of which participated in the executive and legislature bodies of Lebanon. Whether or not an organisation was criminal was determined exclusively by its objectives and actions, not by the actions of one of its members in isolation or by its proclaimed hostility towards another nation. In light of this conclusion, Christodoulou J considered it unnecessary to examine the remaining grounds of appeal.

B. Relevant domestic law and practice

1. The Constitution

53. The prohibition on torture or inhuman and degrading treatment or punishment is set out in Article 8 of the Constitution and is identical to Article 3 of the Convention.

54. The rights of suspects are safeguarded by Article 11(4) of the Constitution, which provides that every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.

55. The rights of a defendant in a criminal trial are protected by Article 12 of the Constitution. The right of a defendant to be informed promptly, in a language he understands and in detail, of the nature and grounds of the charge preferred against him is set out in Article 12(5)(a).

56. The right to a fair trial in any procedure before a court of law is set out in Article 30 of the Constitution. Article 30(3)(b)–(d) provides that:

“Every person has the right:

...

(b) to present his case before the court and have sufficient time necessary for its preparation;

(c) to adduce or cause to be adduced his evidence and to examine witnesses according to law;

(d) to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law”

2. Primary legislation

(a) Criminal Procedure Law

57. Section 108 of the Criminal Procedure Law (Cap. 155) provides that:

“In any indictment that was submitted to the Assize Court, the Attorney General may file against the accused any count which, to his opinion, is supported by the statements that were obtained during the investigation of the case and were served on the defendant in accordance with section 94 of the present Law, either in addition to or in replacement of the criminal offence(s) for which the defendant was committed for trial.”

(b) The Criminal Code

58. Section 63A of the Criminal Code (Cap. 154) provides that participation in a criminal organisation is an offence punishable by a maximum of three years’ imprisonment.

59. Sections 63B(1)(b) and 63B(2) provide that anyone who, despite having knowledge of a criminal organisation’s purposes or activities, participates in an act of such a criminal organisation which he ought to have reasonably known is connected to the commission of a criminal offence shall be guilty of a crime punishable by up to ten years’ imprisonment.

60. Grievous bodily harm and kidnapping with intent to cause grievous bodily harm are prohibited by sections 231 and 251 of the Criminal Code Law and carry sentences of seven and ten years’ imprisonment respectively.

61. Section 371 provides that anyone who conspires with another to commit a crime shall be guilty of that crime and, unless any other sentence is provided for by law, may be subject to a maximum of seven years’ imprisonment.

(c) The Law on Combating Terrorism of 2010

62. Section 2 of the Law on Combatting Terrorism of 2010 defines a terrorist organisation as a group of two or more individuals which has been set up and operates for a certain period of time with the aim of committing terrorist offences and is included in the list of such organisations issued by the Minister of Justice.

63. Section 5 sets out a list of offences which fall within the category of terrorist offences. A person commits a terrorism offence if:

(a) he or she willingly executes an action which, by its nature, may seriously affect any country or international organisation with the aim of, inter alia, intimidating the public, unjustifiably coercing public authorities or international organisations to act or refrain from acting in a certain way; and

(b) that action constitutes a crime set out in the Law or includes the manufacture, possession or acquisition (or the transport, supply or use) of firearms or explosives which place human life in danger.

The maximum penalty is life imprisonment.

64. Section 8(1)(d) provides that anyone who knowingly provides support for the commission of a terrorist offence is guilty of an offence. The offence carries a maximum sentence of eight years’ imprisonment.

65. Section 10 provides that a person holding information which may assist in preventing an act of terrorism or may assist in the arrest, prosecution or conviction of another for an act of terrorism but who withholds such information from the police is guilty of an offence punishable by a maximum of two years’ imprisonment.

(d) The Explosive Substances Law

66. Section 4(4)(d) of the Explosive Substances Law (Cap. 54) provides that a person who transfers or has in his possession any explosive substance without licence or authorisation is guilty of an offence. The maximum sentence is ten years’ imprisonment.

(e) The Firearms Law of 2004 (113/(I)/2004)

67. Section 4(1) of the Firearms Law of 2004 prohibits, with certain exceptions, the import, export, acquisition, possession or transfer of firearms and ammunition. The maximum sentence is fifteen years’ imprisonment (section 51 of the Law).

(f) The Prevention and Combating of the Legalisation of Income from Illegal Activities Law of 188(I)/2007

68. Section 4(1)(iii) of the Prevention and Combating of the Legalisation of Income from Illegal Activities Law of 188(I)/2007 provides that a person who knows or ought to know that property constitutes income from a predicate offence and nonetheless acquires, holds or uses that property is guilty of an offence. The maximum sentence is fourteen years’ imprisonment.

3. The Judges’ Rules

69. The Judges’ Rules were first issued in England and Wales and were later adopted by the Cypriot courts as guidance for the police when questioning or obtaining statements from suspects, They do not constitute law in Cyprus but are merely rules of procedure and failure to follow one of the rules does not necessarily lead to any subsequent trial being stayed.

70. Rule II provides:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.

The caution shall be made in the following manner:

‘You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.’”

71. Rule III(c) provides:

“When such a person is being questioned or elects to make a statement, a record shall be kept of the time and place at which any question or statement began and ended and of the persons present.”

4. Relevant case-law on the admissibility of defendants’ interview statements

72. When the prosecution seeks to rely on a defendant’s statement at trial, it bears the burden of proving beyond reasonable doubt that the statement was free and voluntary. The prosecution must prove that the statement was not obtained under circumstances which affected the defendant’s will and that the defendant was not induced to produce the statement by any promise of favour or by menaces or undue terror (see, among other authorities, Costas Andreou, Kokkinos v. The Police [1967] 2 CL.R. 217; Ibrahim v. Republic [1914] AC 599; R v. Sfongaras [1957] 22 C.L.R 113; Kokkinos v. Police [1967] 2 C.L.R 217; Petri v. the Police [1968] 2 C.L.R 40; Ioannides v. the Republic [1968] 2 C.L.R. 269). The court will therefore not admit a statement in evidence unless the circumstances surrounding its making are free from suspicion or elements of oppression.

73. The voluntariness of a statement is a question of fact to be determined by the court (Fournides v. the Republic [1986] 2 C.L.R 73). In assessing whether a defendant’s statement was affected by oppressive practices of the police, the court will consider whether by its nature, duration and other circumstances (including the defendant’s detention) the police gave the defendant hope or affected his mind in such a way that his true will was compromised, leading him to confess when otherwise he would have remained silent (see Andreas Azinas and another v. the Police [1981] 2 C.L.R 9)

74. It is for the court to assess whether the police used their powers in an unfair and oppressive manner. If the court is so satisfied, then it must exclude the evidence notwithstanding that there is no rule specifically prohibiting such behaviour. If, however, the court considers that no undue influence was used to obtain the testimony then it may admit the evidence even if there has been a violation of the rules.

75. Compliance with the Judges’ Rules may assist the court in determining the voluntariness of the accused’s statement. However, the Rules were made for the guidance of the police and are not to be used to decrease the power of the judiciary (see Andreas Azinas and another v. the Police, cited above).

COMPLAINTS

76. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment and that the six statements he provided were involuntary: they were preceded by lengthy interrogations, the applicant was sleep deprived, he was not cautioned and no record of the interviews was kept, in breach of the Judges’ Rules.

77. The applicant further complains that the failure of the prosecution to provide the expert witness’s report in good time, placed him at a substantial disadvantage, breaching the principle of equality of arms as protected by Article 6.

78. Finally, the applicant complains that the Assize Court, in giving the prosecution leave to amend the indictment from the one on which he was originally committed for trial, violated his right to a fair trial under Article 6 § 3(a) and (b) of the Convention.

QUESTIONS TO THE PARTIES

I. Factual matters

1. The Government are requested to submit copies of:

(i) the diary of action which was kept by the police officers conducting the investigations, recording, inter alia, the actions taken during the investigation of the case and the times of the applicant’s interviews;

(ii) any other records concerning the applicant’s detention which are relevant to his allegations concerning his interviews and statements obtained as a result of those interviews.

(iii) the minutes from the three remand proceedings; and

(iv) the witness statements admitted at trial, including that of the applicant.

2. The Government are also requested to clarify whether the applicant was informed of his right to a lawyer before he was interviewed and to submit any proof of the same.

II. Admissibility and merits

3. Did the applicant suffer ill-treatment during his detention in breach of Article 3 of the Convention?

4. If the answer to question 3 is negative, having regard to the circumstances in which the applicant’s incriminating statements were obtained, including the number of interviews, their length and the time of day they took place, has there nonetheless been a breach of applicant’s right not to incriminate himself?

5. Further to questions 3 and 4, as a result of the admission of those statements at trial, has there been a breach of the applicant’s right to a fair trial under Article 6 § 1, either alone or read in conjunction with Article 6 § 3 (c) of the Convention, on account of the following factors (either taken separately or cumulatively):

(i) any ill-treatment of the applicant;

(ii) any breach of the applicant’s right not to incriminate himself; and

(iii) any failure to provide him with timely access to a lawyer following his arrest?

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