CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)