Last Updated on July 2, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 67748/13
Georgios MELIKIDIS
against Cyprus
The European Court of Human Rights (Third Section), sitting on 12 February 2019 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 27 September 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
1. The applicant, Mr Georgios Melikidis, is a Greek national, who was born in 1976 and lives in Limassol. He was represented before the Court by Mr L. Loucaides and Mr P. Kleovoulou, lawyers practising in Nicosia and Limassol, respectively. The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides, Attorney General of the Republic of Cyprus.
2. The applicant’s complaint under Article 3 of the Convention about ill‑treatment by the police was communicated to the respondent Government under both the substantive and procedural limbs of that provision. The remainder of his complaints were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
3. The Greek Government were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of that right.
A. The circumstances of the case
1. The applicant’s arrest, detention and alleged ill-treatment
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 17 October 2003 the applicant visited the Civil Registry and Migration Department in Limassol in order to renew his residence permit in Cyprus. During his visit, it emerged that he was unlawfully residing in Cyprus. As a result, deportation and detention orders were issued on the same day pursuant to section 14 of the Aliens and Immigration Law, on the grounds that he was a “prohibited immigrant” within the meaning of section 6(1)(k) of that law (see Kahadawa Arachchige and Others v. Cyprus, nos. 16870/11 and 2 others, § 37, 19 June 2018) and the applicant was transferred by two police officers to Limassol central police station (“the police station”) where he was to be held pending his deportation.
6. Upon his arrival at the police station, the applicant was transferred to an interview room where he was asked to hand over his personal belongings for storage. The applicant was also asked to remove his shoelaces and place them in a wooden box that was on a table in the interview room.
7. At this point, a scuffle ensued between the applicant and the two police officers who had been accompanying him, Special Constable G.G. and Constable S.T. In the subsequent domestic proceedings (see paragraphs 22-39 below) different accounts of the events as they unfolded in the interview room were provided by the police and the applicant.
8. According to the applicant he forcefully pulled his shoelace since it was not easy to remove. As a result, the shoelace snapped and he abruptly leaned backwards. The police officers misapprehended his actions and G.G. grabbed him by the neck. When the applicant tried to escape things got out of control. The applicant claimed that he did not at any point attack the police officers. He further claimed that, while he was on the floor, the police officers handcuffed him and one of the two officers kicked his face. As a result his right eye was bruised. The applicant also alleged that, in the police officers’ attempt to restrain him, G.G. hit him on the head with the handcuffs. After the scuffle he was transferred to his cell and was only taken to the hospital three hours later by different police officers.
9. According to the two police officers, when they asked the applicant to remove his shoelaces, he reacted and started shouting. G.G. asked the applicant to calm down. The applicant kicked the wooden leg of a table that was inside the interview room. The applicant then grabbed a wooden box that was on the table and hit G.G. on the shoulder with it. The applicant then lifted the table and threw it on the floor. Subsequently, S.T. arrested the applicant for assaulting a police officer and the police officers handcuffed him. However, the applicant managed to break the handcuffs and remove them from his left hand. The applicant then grabbed G.G. around the waist and pulled him towards him; as a result, the applicant and police officer fell to the ground with the applicant lying on his back underneath the police officer. During the fall the applicant hit the corner of the table with the right side of his face and his right eye and he later hit the back of his head on the ground. After the fall the applicant was handcuffed, although he continued to resist, kicking both officers. He was then transferred to his cell.
10. The Chief of Limassol Police Station was informed of the incident on the same day by the only other police officer present at the station, Sergeant G.T., who had attended the interview room after the scuffle and had witnessed the applicant bleeding. The Chief then instructed G.T to investigate the circumstances leading to the incident and the possible commission of offences by the applicant against the police officers. A criminal investigation was opened which led to criminal proceedings being brought against the applicant (see paragraphs 16 and 22-27 below).
11. After the scuffle the police officers visited the Emergency Department of Limassol General Hospital where they were examined by the on-duty doctor who prepared a report recording their injuries. The doctor noted that G.G. had suffered minor injuries on his forearm, thumb and right knee. It does not appear that any notes were made on S.T.
12. Later that day, the applicant was also taken to the Emergency Department of the same hospital where he was examined and treated by the same on-call doctor. A report was prepared recording the applicant’s injuries and the treatment he received. The report stated that the applicant suffered a hematoma to the right eye, two parallel wounds at the back of his scalp, both of which were 3 cm long and had to be stitched, and abrasions to his left shoulder.
13. On 18 October 2003 the applicant was taken again to the same hospital by the police. He was examined by a doctor in the presence of a forensic pathologist and then taken back to the police station.
14. On 19 October 2003 the applicant’s lawyer, Mr P. Kleovoulou, submitted a complaint to the police station alleging that the applicant had been ill‑treated by the two police officers. As a result, the Chief of the station appointed Police Lieutenant C.K. in the same police unit to investigate the applicant’s complaint. An administrative inquiry into the applicant’s complaint was then opened.
15. On 20 October 2003 the applicant complained of headaches and dizziness and was therefore transferred to the Emergency Department of Limassol General Hospital. He was examined and found to have suspected post-concussion syndrome and was thus referred to a neurologist.
16. On the same day, the Chief of Limassol Police Station filed an indictment against the applicant with the Limassol District Court containing four counts. These were: assault occasioning actual bodily harm to G.G.; obstructing a police officer in the implementation of his duties; criminal damage to property; and publicly insulting the two police officers, G.G. and S.T. (the applicant’s trial and subsequent acquittal are summarised at paragraphs 22-27 below).
17. On 21 October 2003 the applicant was brought before the Limassol District Court for the purposes of remand. The judge ordered that a forensic pathologist examine the applicant on the same or the following day and that the report be presented to the court on 23 October 2003.
18. The examinations were conducted on the same day in the presence of a photographer who took pictures of both the applicant and the police officers. A cardiologist of the applicant’s choosing was also present. The report that was prepared by the forensic pathologist included the observations of both doctors.
19. On 22 October 2003 the applicant was also examined by consultant neurologist. She found a bruise under the applicant’s right eyelid and abrasions on his left elbow. She did not find any objective neurological damage; she did, however, diagnose the applicant as suffering from post‑concussion symptoms as described to her by the applicant.
20. On the same day the applicant’s family requested that the applicant be examined by a psychiatrist. As a result, the applicant was examined by a psychiatrist who prepared a report dated 23 October 2003 noting that the applicant had complained of being beaten by two officers and had received blows to the head and other parts of his body, with punches, kicks and handcuffs. The applicant had complained that his consciousness had been diminished after the first blows and perhaps had suffered from a temporary lack of consciousness, which lasted for two hours, and he had difficulty recalling the facts of the incident. He complained of suffering headaches, dizziness, nausea and vomiting on two occasions. The psychiatrist noted that the applicant had two wounds on his scalp, a hematoma under the right eye and small injuries on other parts of his body. He found that the applicant suffered from cerebral concussion which could have certainly been caused by blows on the head as those the applicant alleged he had been subjected to. He suggested that the applicant should be placed in a medical institution for a few days.
21. On 7 November 2003 the administrative inquiry was concluded with a report prepared by C.K. In sum, in his report he found that there had been no criminal behaviour on the part of the police officers and that they had used reasonable force against the applicant, who was a dangerous person and who had attacked them and tried to escape.
2. The applicant’s trial before the Limassol District Court (criminal case no. 15732/03)
22. On 26 August 2005 the Limassol District Court acquitted the applicant on all counts finding that the prosecution had not proved its case.
23. The court found that the police officers’ account of the events had not been credible. The court first noted that the police officers’ statements had been identical and the structure, order, phraseology and description of events contained in them similar. The court found that the police officers had consulted each other prior to drafting their statements. This was also the case with the evidence they had given in court.
24. Second, the court observed that, as indicated in the accident and emergency doctor’s report of 17 October 2003 (see paragraph 11 above), G.G. had suffered minor injuries during the scuffle. However, the court dismissed G.G.’s allegations that he had suffered wounds as result of the fall on the ground and the applicant hitting him on the shoulder with the wooden box. The court excluded the possibility that the police officer’s injuries were received on 17 October 2003: G.G. had not mentioned these injuries to the doctor who had treated him and they had not been recorded in the doctor’s report. Nor had the injuries been compatible with the applicant’s version of events or the forensic pathologist’s findings.
25. The court further noted that the pictures obtained of the room had been staged. Sergeant G.T., the officer initially tasked with investigation the incident, had agreed during cross-examination that the pictures had been taken on 21 October 2003, five days after the incident, despite having previously stated that the room had been in use twenty-four hours per day. Additionally, the court took into account the fact that G.G. had refused to admit that the applicant had been bleeding despite there being evidence supporting this fact.
26. With reference to the report prepared by C.K, the court noted he was a police lieutenant in the same police division with the officers against which the complaint had been filed. It observed that it was important that such investigations were independent and impartial. For that reason, it was essential that they were assigned to independent investigators or officers who served in different police units, who were not implicated in the events, or who were appointed by Police Headquarters. Therefore the court concluded that any conclusions reached by C.K in his report had no evidentiary value.
27. In conclusion, the court ruled that the applicant’s version of the events was more consistent with the facts of the case. His injuries indicated that the force used by the police officers had exceeded the reasonable force that might have been required to restrain him. As a result the court found that the applicant’s actions had been in self-defence, a conclusion that was consistent with the minor injuries suffered by the police officers.
28. No appeal was lodged against the judgment.
3. Civil action before the Limassol District Court (case no. 6941/03)
29. On 29 October 2003 the applicant filed a civil action with Limassol District Court against the Chief of the police station, Sergeant G.T. (the officer in charge of the investigation), the two police officers involved in the incident and the Attorney General. He claimed special and general damages in tort for the injuries he had sustained. He also relied on Law no. 235/1990 (as amended; see relevant domestic law and practice at paragraphs 42-43 below). The applicant had initially made other claims but withdrew these during the proceedings.
30. In support of his claim the applicant submitted, inter alia, a new forensic report prepared in 2008 by a private forensic pathologist. The report rejected the possibility that the applicant’s scars at the back of his head had been caused by direct impact with the floor, owing to the shape and form of the scars.
31. The applicant further claimed that the provisions of section 6(1) of the above Law according to which a person is presumed to have been abused by the police where he bears injuries which did not exist prior to his arrest were applicable in his case (see paragraph 43 below).
32. The respondents rejected the applicant’s claims in their entirety: the two police officers’ version of events remained the same as that given in evidence at the criminal trial.
33. On 12 February 2008 the applicant withdrew the action in so far as it concerned the Attorney General following an agreement between them for the sum of 6,834.41 euros by virtue of which the applicant agreed not to make any claim against the Government concerning the claims made in his action and the events concerning his arrest and detention on 17 October 2003.
34. On 15 January 2009 the court dismissed the applicant’s claims and found that he had not been a credible witness and his testimony had been fraught with contradictions. It noted, inter alia, that the applicant’s original statement, which he had given to the police on 19 October 2003, was significantly different to the version he had given in his civil claim. For example, he now stated that, while he was lying on the ground unconscious, one of the police officers pulled his genitals. However, there had been no mention of this in his original statement nor had there been any such mention in the doctors’ reports. The court also noted that, in his original statement, the applicant had stated, not that he was unconscious, but that he had started to calm down when the police officers stopped hitting him.
35. The court also rejected the evidence of the forensic expert who had prepared the 2008 report as it considered his evidence to be a weak basis for drawing conclusions as to the cause of the applicant’s injuries.
36. It further observed that the police officers’ evidence had been truthful and consistent with the rest of evidence given during the civil trial. The only critical comment of the court on the police officers’ testimony was that G.G. seemed evasive with regards to the blows he had received from the applicant, providing the court with an unclear version of the manner in which his injuries had been caused. However, this did not lead the court to question the entirety of the police officers’ version of events.
37. With reference to the investigation conducted by C.K., the court noted that the officer had been procedurally correct in the way he had conducted the investigation: he had obtained written statements from all the individuals involved with the incident, he had obtained evidence from a forensic expert, and he had examined the interview room where the incident took place. According to the court the only weakness in C.K.’s report was that he seemed to have evaluated the credibility of the individuals he had interviewed and perhaps had not acted impartially. This according to the court did not prove that he had conducted the investigation with aim of reaching a pre-determined result. The facts of the case were not so clear that C.K. could have reasonably and objectively established the exact events that took place in the interview room.
38. The court held that the police officers had used reasonable force to restrain and detain the applicant and it had been unlikely that the applicant’s injuries had been the product of a coordinated police attempt to conceal the applicant’s abuse.
39. With regard to the applicant’s complaints under Law no. 235/90, the court found that by virtue of section 6(1), the Law applied only to criminal proceedings and thus could not be applied in a civil claim against members of the police force.
4. The applicant’s appeal to the Supreme Court (appeal no.89/2009)
40. The applicant appealed to the Supreme Court against the first instance judgment.
41. On 29 March 2013 the Supreme Court dismissed the appeal. Upon examining the evidence at hand and the findings made by the Limassol District Court, it upheld the first instance judgment. With regard to the applicability of section 6(1) of Law no. 235/1990 the Supreme Court noted that the applicant had not appealed against the first instance’s court findings in this respect. For this reason, the Supreme Court did not examine the issues arising under this section.
B. Relevant domestic law
42. Law no. 235/1990 ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and came into force on 26 June 1987. The Law criminalised acts of torture, and inhuman or degrading treatment or punishment.
43. Section 6(1) and (2) of the above law, as amended by Amending Law 36(III)/2002, provided as follows at the material time:
“1. For the purposes of sections 3 and 5, a person who was arrested or was otherwise detained is presumed to have been ill-treated by a member of the police at the police station where he was detained, where it is established by a medical examination which is carried out at any time prior to his or her release or immediately after his or her release from the police station, that he or she has external injuries which he or she did not have at the time of … admission to the police station.
2. In a case where the presumption under section 1 is applied, it is to be further presumed that the person in charge of the police station and the person responsible for possible interviews for the investigation of the case in relation to which the arrest and detention took place, shall be responsible for the ill-treatment unless he or she provides a reasonable explanation for the infliction of the injuries in a way other than that of ill-treatment by a member of the police.”
COMPLAINT
44. The applicant complained under Article 3 of the Convention that, while in custody, he had been subjected to inhuman and degrading treatment.
THE LAW
45. Relying on Article 3 of the Convention the applicant complained that he had been ill-treated by police officers while in custody at the police station. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The Government
46. The Government raised a preliminary objection and submitted that applicant had failed to comply with the six-month rule.
47. They pointed out that the applicant had waited for the conclusion of the civil proceedings before lodging his application with the Court. A civil action, however, was not an effective remedy within the meaning of Article 35 § 1 of the Convention for the purposes of a complaint under Article 3. They referred to Shchukin and Others v. Cyprus, (no. 14030/03, § 82, 29 July 2010) and the cases referred to therein. It had not been therefore reasonable or necessary for the applicant to have awaited the outcome of those proceedings as they could not be regarded as part of the process of exhaustion of domestic remedies in respect to his complaint.
48. It was the Government’s position that the six-month time-limit had started to run from the date the applicant had realised that no effective investigation would be carried out into his complaint; more specifically, when he had realised that the administrative inquiry by C.K. was ineffective. This would have happened at the latest on 26 August 2005, when the Limassol District Court had given judgment in the criminal proceedings ruling that this inquiry had not been independent. In addition, following this judgment the applicant had not petitioned to the Attorney General, who had been the authority at the time with the power to appoint an independent criminal investigator, to investigate his complaint.
49. The Government submitted that the applicant must be considered to have been aware of the lack of an effective criminal investigation into his complaint long before he applied to the Court but had failed to display the necessary diligence in lodging his application.
2. The applicant
50. The applicant disagreed and maintained that the only suitable remedy which had been open to him for his ill-treatment complaint under Article 3 of the Convention was a civil action. In this respect, he observed that he had expected that the conduct of the police would be punished in view of the judgment of the Limassol District Court in the criminal proceedings. Following the findings of that court, the Chief of Police should have reported the case to the Attorney General in order to carry out an effective investigation into the applicant’s ill-treatment. Referring to Rantsev v. Cyprus and Russia (no. 25965/04, § 232, ECHR 2010 (extracts)) and Egmez v. Cyprus (no. 30873/96, ECHR 2000‑XII), he argued that it had been the authorities’ responsibility to act on their own motion in the case and not for him to take steps and that the failure to carry out an effective investigation by the Attorney General was a continuing situation which had only crystalised in the Government’s observations before the Court.
B. The Court’s assessment
1. General principles
51. The Court refers to its established case-law pertaining to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined (see, inter alia, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 129-132 and 134-136, 19 December 2017 and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-269, ECHR 2014 (extracts)).
52. In the context of cases concerning unlawful use of force by State agents – and not mere fault, omission or negligence – the Court has held that civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see, inter alia, Lopes § 135 and Mocanu § 227, both cited above and with further references). It has further held that the Contracting Parties’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages (ibid., § 135 and § 234 respectively).
53. In cases such as these, therefore, the Court considered that any subsequent civil proceedings undertaken by the applicant were not an adequate and effective remedy within the meaning of Article 35 § 1 which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit (see Lopes, cited above, § 136).
54. Lastly, the Court has already held that, in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu, cited above, § 263; see also §§ 264-269 of that judgment).
2. Application to the present case
55. In the present case, the Court observes that following the incident at the police station on 17 October 2003, a criminal investigation was opened upon the instructions of the Chief of the police station into the circumstances leading to the incident and the possible commission of offences by the applicant against the two officers involved (see paragraph 10 above). Criminal proceedings were then brought against the applicant on 20 October 2003 (see paragraph 16 above).
56. In parallel, following the applicant’s lawyer’s complaint on 19 October 2003 of ill-treatment, an internal police administrative inquiry was opened (see paragraph 14 above). This was concluded on 7 November 2003 with the finding that there had been no criminal conduct in the police officers’ actions and that they had used reasonable force against the applicant (see paragraph 21 above).
57. The criminal proceedings against the applicant before Limassol District Court ended on 26 August 2005 with the applicant’s acquittal (see paragraph 22 above).
58. It is common ground that following these proceedings and despite the findings of the Limassol District Court concerning the incident (see paragraphs 22-27 above) there was no additional investigation or any fresh measures taken in the case by the authorities. It also transpires that the applicant did not take any steps to this end apart from pursuing his civil action. Furthermore, on 12 February 2008, during the civil proceedings, he withdrew the action in so far as it concerned the Attorney General: he received a lump sum and renounced his claim against the Government concerning the claims made in his action and the events concerning his arrest and detention on 17 October 2003 (see paragraph 33 above).
59. In the light of the foregoing, the Court considers that the fact that no further investigation would take place into his complaint must have been apparent to the applicant long before he introduced his application with the Court in 2013. Nevertheless, it does not appear that he exercised due diligence in this respect.
60. The Court observes that the applicant lodged his application with the Court on 27 September 2013, that is, within six-months from the final judgment of the Supreme Court ending the civil proceedings (see paragraph 41 above). The Court notes that in these proceedings the applicant claimed compensation for the injuries he had sustained by the officers. These proceedings aimed solely at awarding damages for acts, for which no criminal liability had been established. They cannot therefore be said to be an adequate and effective remedy within the meaning of Article 35 § 1, which the applicant had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit (see, mutatis mutandis, Jørgensen and Others v. Denmark (dec.), no. 30173/12, §§ 61-62, 28 June 2016; Narin v. Turkey, no. 18907/02, § 49, 15 December 2009; and Bedir v. Turkey (dec.), no. 25070/02, 2 October 2007).
61. In conclusion, bearing in mind all the above, the Court finds that the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 March 2019.
Fatoş Aracı Branko Lubarda
Deputy Registrar President
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