European Court of Human Rights

THIRD SECTION

CASE OF KHANI KABBARA v. CYPRUS

(Application no. 24459/12)

JUDGMENT

STRASBOURG

5 June 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Khani Kabbara v. Cyprus,

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant's arrest, detention and alleged ill-treatment

1. The applicant's version of events

2. The Government's version of events derived from the investigation files

15. At the end of the interview, around 1.35 p.m., the applicant was taken to the detention facilities in the station where Constable C.T. carried out a body search. He recorded injuries in the applicant's prisoner record. These were: abrasions on the left part of the applicant's forehead (αριστερή μετωπιαία χώρα) and left shoulder blade (ωμοπλάτη). The applicant was taken to a cell at approximately 1.45 p.m.

16. The applicant was visited by his lawyer, C.H., from 3.05 p.m. until 3.30 p.m. Before leaving the station, C.H. complained to the head of the detention facility, Sergeant P.H., that the applicant had been ill-treated during his arrest, transfer to the station and questioning.

B. Medical examinations and reports

1. The applicant

(a) Examinations at Limassol General Hospital on the day of his arrest

23. On the day of his arrest, at approximately 4 p.m., the applicant was examined by a pathologist, Dr A.K., at the Emergency Department of Limassol General Hospital. The applicant complained of loss of consciousness after being beaten, dizziness, nausea, a severe headache, neck pain, and a pain in his knee. The pathologist carried out a physical examination. He found that the applicant had a cephalohaematoma (κεφαλαιμάτωμα) in the right temporal region; abrasions in the parietal area; abrasions and mild oedema on his nose; bruising of his lower lip; a broken upper incisor (σπασμένο/διατομή πρόσθιου άνω τομέα οδόντος); a bruise on the left hemithorax with sensitivity and a few abrasions; oedema and abrasions on both wrists (πηχεοκαρπικές αμφώ); a few abrasions on the knees, with no evidence of inflammation; pain during the examination of the movement of the right knee; sensitivity of the upper thoracic vertebra and the upper lumbar spine. The CT scans of the brain, the facial bones and the cervical spine showed no injuries or fractures. There was only loss of neck curve (ευθειασμός αυχένα). Furthermore, the X-ray of the thorax and the right knee did not reveal any fractures or fluid in the thorax or the pneumothorax. A splint was placed on the applicant's right knee and he was prescribed analgesics. The doctor's final diagnosis was cranio-cerebral injury (κρανιοεγκεφαλική κάκωση), neck strain (θλάση αυχένα), bruising on the thorax (κάκωση θώρακα), bruising on his knee (κάκωση γονάτου), and a broken tooth (διατομή οδόντος).

24. The applicant was also examined by a general surgeon, Dr C.T. The applicant complained of neck and chest pain, a headache and pain in the thoracic spine. The doctor observed that the physical examination (η αντικειμενική εξέταση) was within physiological limits (εντός φυσιολογικών ορίων). The surgeon ascertained that the applicant had marks from blows, mainly on his chest and face.

(b) Subsequent medical examinations

(i) Limassol General Hospital

25. On 1 March 2011 the applicant was taken to the Emergency Department of Limassol General Hospital owing to vomiting and dizziness. He was examined by Dr Y.I., who observed that the applicant's external injuries were still there. The results of the physical and clinical examinations were normal. In his report the doctor stated that the applicant had been discharged from hospital at 7 p.m. "feeling very well". He referred the applicant for an orthopaedic examination the next day.

26. On 2 March 2011 the applicant was taken back to the hospital for examination by an orthopaedic surgeon, Dr. P.T. The applicant complained that he had been hit; he also complained of pain in the lumbar spine and an injury to the right knee. Dr P.T. did not ascertain any bone damage or neurological symptomatology (νευρολογική σημειολογία). He suggested rest and prescribed analgesics.

(ii) Medical examination by a private practitioner

27. On 7 March 2011, following a request by the Canadian Consul, a private practitioner, Dr. S.J - a traumatologist orthopaedic surgeon - visited the applicant at the police station and carried out a medical examination. In his report dated 10 May 2011 he stated, in the original English, as follows:

"I visited the patient on the 7th of March 2011 in the central police station of Limassol. He was complaining of multiple injuries causing him severe pain which did not allow him to come to rest especially at night.

During my clinical examination carried out on that day, the patient had restriction in motion due to pain especially during maximal flexion and extension of the lower back. He had pain sensation during the palpation of the soft tissue without any external injuries observed. Further he had a bruise measuring 10 x 5 cm at the left side of the chest at the auxiliary line height which gave him pain during palpation, compression and maximal inspiration.

Mr Kabbara further had restriction of motion and muscular tension at the cervical spine region without any pathologic neurologic observation. The patient had a loss of half the left upper incisor tooth with no mobility dysfunction of the jaw.

Due to the above injury, Mr Kabbara described severe pain especially in the evening which did not allow him to sleep. I prescribed him anti-inflammatory pain killers on a regular basis. If there was no response to the medication I advised him to contact me again."

2. Special Constable G.S.

28. On 27 February 2011 Special Constable G.S. also went to Limassol General Hospital, where he was examined by a general practitioner, Dr V.D. He complained that, while he had been trying to arrest someone, he had received a punch on the head. As, however, he had been wearing a helmet there had been no bruising. He also complained that he had been kicked in the stomach, had fallen backwards to the ground and hit the right side of his hip. X-rays, scans and tests were carried out and he was diagnosed with a strain (θλάση) of his lumbar spine. The doctor also found that his kidney was not in its normal position. She instructed that G.S. be examined by an orthopaedic specialist and a nephrologist. G.S. was prescribed nine days' sick leave.

C. Administrative investigation

30. On the same day the Canadian Consul visited the applicant while at the hospital with her assistant. The applicant told her that he had been ill-�treated. Her assistant took a written statement from the applicant which reads, in the original English, as follows:

"TO CANADIAN AUTHORITIES

On Sunday Feb 27 at approx. 9.20 am, I was attacked from a policeman from behind and trying to protect myself, my elbow hit him at Athinon street. Then a number of the policemen (3-4) started kicking me on the head and immobilized me and hand-�cuffed me. I passed out (first time), woke up in a police car and all the way to the Police Station I asked to contact my lawyer and the Canadian Consulate but they refused and they hit me more. At the police station, Mr [G] hit me. They took me upstairs to the Financial Crime Department. I asked again to contact my Consulate or my lawyer and they refused. I was then taken to another room where Mr [M] was. Four policemen walked in and hit me. They took a chair and broke it over my right leg. They also hit me on the head with the chair several times. I fell down and then I was asked where I live. I said I don't want to say anything without my lawyer. They hit me again and broke my tooth. I was tortured and my human rights were violated. I was also threatened to be killed by high-leveled people. I am now afraid of my life. This continued for about 4 hours until finally I got in touch with my lawyer and sent to the hospital."

31. On 2 March 2011, in the light of the applicant's lawyer's complaint (see 16 paragraph above), the Limassol police appointed an investigating officer, Police Chief Inspector M.M., who was in charge of the Ayios Ioannis police station in Limassol, to conduct an administrative investigation into the applicant's complaint.

33. An investigation was conducted by M.M. and a report was prepared. M.M. secured copies of written statements contained in the criminal file gathered for the purposes of the criminal proceedings against the applicant (see paragraph 64 below) as well as statements from all the officers who had come into contact with the applicant, directly and indirectly, during his arrest and detention. The statements were not question and answer statements.

36. The most relevant written statements of other officers read as follows:

37. According to the findings of the investigator in his report of 26 April 2011, the applicant had been uncooperative from the beginning of his detention and refused to provide a written statement and answer any questions during his interview. He had also refused to cooperate with the investigator himself and to give a statement concerning his ill-treatment allegations. He had told the investigator that he did not trust the police. In view of the above, it could not be excluded that the complaint had been made to further the applicant's own interests. According to Inspector I.S., who had supervised the applicant's questioning in relation to the criminal case against him, no member of the police had ill-treated or used any kind of violence against the applicant during his detention and questioning. The only contact the applicant had had with a member of the police had been during his struggle with the police officers when attempting to flee arrest. In his report, the investigator noted that Special Constable G.S. had been injured while trying to arrest the applicant and that he had been put on sick leave by the doctor who had examined him at the hospital.

39. The Limassol divisional police headquarters and the Chief of Police agreed with the conclusions.

D. First investigation by the Independent Authority for the Investigation of Allegations and Complaints against the Police ("the IAIACAP")

41. By a letter dated 14 July 2011 the applicant's lawyer complained to the Attorney General, requesting that an independent investigation be conducted into his client's complaint and that the officers responsible be brought to justice. The next day the Attorney General referred the applicant's complaint to the president of the IAIACAP ordering an investigation.

1. Investigation

42. On 20 July 2011 the IAIACAP appointed a lawyer, Mr A.S., as investigator.

45. The applicant gave a statement to the investigator on 23 August 2011, adopting the content of a handwritten statement he had prepared in June 2011 for his lawyer. In his written statement the applicant alleged that on 27 February 2011 at 9.15 a.m. he had been trying to familiarise himself with the ATM in case he would ever need to use his own cards and check the balance of his account. He had, inter alia, a credit card in his name on him and EUR 10,000, which had been given to him by his lawyer at the time, C.H. This was the cash bail that had been returned from the court in another case against him. At 9.20 a.m. he had been suddenly attacked from behind by someone who had been wearing a helmet and who he had not recognised. This person had not identified himself. The applicant had thought that it had been a robbery. This person had choked him from behind. The applicant had been scared and had defended himself. He had then been attacked by a second person in civilian attire. They had started hitting the applicant on the head and the back with a small wooden stick. The applicant had fallen to the ground and lost consciousness. The officers had woken him up by throwing water on his face. He had woken up in a brown jeep, handcuffed. He had then realised that he had been intercepted by the police. The officers had slapped and punched him on the face and body all the way to the police station. They had been asking him about money and credit cards but had not asked him to identify himself. Nor had they shown him any documents in respect of his arrest and informed him of his rights. They had taken everything he had had on him including his asthma inhalers. They had refused to allow him to talk to his lawyer or with an official from the Canadian embassy. He had been taken to the station at approximately 10 a.m. He had been received by the head of the police, "Mr Y.", an officer acting as an interviewer, "Mr M.", and two other officers "Mr P." and "Mr A.". In the interview room there had been officers of the CPS and another officer, "V.". Officer M. had asked him questions. The applicant had refused to reply, saying that he would do so only in the presence of his lawyer. At that point the officer who had attacked him at the ATM had started beating and "torturing" him while he had been unable to defend himself, as he had still been in handcuffs. He had kept asking them to stop and let him contact his lawyer. They had continued to punch and beat him using the same small wooden stick used before (he clarified that this had been a small baseball bat). He had asked for his asthma inhalers and tried to tell them that he had had back surgery. He had been very scared and had started breathing heavily. They had hit him on the back and on his right knee with a metallic chair with blue handles. They had beaten him with that chair and kicked him savagely on the head while asking him questions. The applicant stated that he had lost consciousness for a while and he had woken up after water had been thrown on his face.

47. The applicant alleged that he could identify the individuals responsible for his ill-treatment.

"... there were areas which indicated that [the applicant] had fought with someone, without however bearing any external injuries. He had dishevelled hair, his clothes were creased, but not torn, and he was red owing to tiredness, but not owing to blows."

"[I]t was like when someone's face is rubbed against the ground. I think that he had something similar on his hands."

"[The applicant's] face was red as if he had been running and [he] was short of breath. With regard to the minor-abrasions and bruises, these were definitely not black marks but mild redness."

"[The applicant] was to begin with, unkempt, messy as to his clothes, his hair was also tousled (ανακατωμένα) and his face was red. He did not have bruising (μαύρισμα) however, nor did I see scratches."

2. Investigator's findings

49. In his report dated 10 October 2011 the investigator found, taking into account the evidence at hand, that the applicant's testimony had been unconvincing in many respects and contradicted solid evidence:

52. The investigator pointed out that Special Constable G.S. had not denied the use of force against the applicant: following the applicant's violent reaction he had pushed the applicant with his hand somewhere between his chest and neck and had also used some wrestling holds (λαβές πάλης) in order to turn him round and handcuff him. Furthermore, when the applicant had tried to flee he had fallen to the ground, hitting his face. This version of events could justify the injuries on the applicant's face and his right knee but the investigator stated the he could not accept it easily. He stated that he was puzzled by the fact that Constable P.P., who had seen the applicant just before he had been led to the offices of the ECID, had noticed no exterior wounds other than the fact that the applicant was red. This was in line with G.S.'s statement that he had not hit the applicant.

53. Bearing in mind the above, the investigator concluded that G.S. had not used excessive force to arrest the applicant and that neither criminal nor disciplinary proceedings against him were merited.

54. The investigator pointed out that this did not mean that he accepted the facts as described by all the officers as, on the basis of their version of the events, one would expect that the applicant would have had fewer injuries. At the same time, he did not accept the applicant's version of the facts as on the basis of his version, it would have been expected that he would have had more injuries.

3. Report of the president of the IAIACAP

56. The investigator transmitted his report and findings to the president of the IAIACAP. The latter prepared a report dated 16 November 2011 adopting the investigator's findings. He noted, however, that he did not accept the evidence that had been given stating that the applicant did not bear exterior injuries or abrasions, as this was contrary to the findings of the doctors; nor did he accept that the applicant was merely red due to tiredness but not due to blows. Nonetheless, he observed that on the basis of these injuries it could not be concluded that the force used had been disproportionate under the circumstances. He therefore could not suggest that criminal or disciplinary action be taken against the four officers in question. He also considered that even if an identity parade had been held, he doubted that it would have made a difference to the outcome of the investigation, in view of the applicant's conduct. The struggle between officer G.S and the applicant had been expected (αναμενόμενη) in order for the applicant to avoid arrest at the moment he had been appropriating a large sum of money.

4. Decision taken by the Attorney General

59. On 13 February 2012 the Attorney General concluded that although a certain degree of force had been used against the applicant, this had been necessary under the circumstances in order to prevent him from fleeing arrest. He concluded on this basis that the prosecution of any member of the police was not warranted and instructed that the file be closed.

60. In his decision he stated that it appeared from the evidence that Special Constable G.S. had asked the applicant, who at the time had been at the ATM machine, for his particulars. The applicant had reacted and had hit the police officer in an attempt to flee. The applicant had explained his behaviour by stating that he had thought it had been a robbery. Special Constable G.S. had, however, been in uniform as had been the officer who had subsequently come to help.

61. The Attorney General further observed that the applicant's explanations concerning his attempt to flee and the money found in his possession as well as his allegations as to the injuries sustained and his alleged ill-treatment going to and at the police station did not correspond to the reality. Furthermore, his allegation that the doctor who had examined him at the hospital had refused to give him painkillers had been refuted by the doctor. Most of the applicant's statement appeared to be imprecise and untrue. Special Constable G.S. had not denied the use of force: following the applicant's violent reaction he had used proportionate force in the circumstances in order to prevent him from fleeing until help arrived. As a result not only had the applicant been injured but the officer himself, who had also had to go to hospital, had been. In addition, the applicant had claimed that he had been tortured by members of the police during his transfer to the police station and before the arrival of his lawyer, C.H. The latter, however, had refused to give a statement. The applicant's allegations had been disputed by all the members of the police involved.

E. Criminal proceedings

1. First-instance proceedings

64. In the meantime, the applicant was charged with 439 counts of different offences and criminal proceedings were instituted against him before the District Court of Limassol (case no. 4474/11). The charges were subsequently reduced to three, namely theft, assault occasioning actual bodily harm (to Special Constable G.S.) and resisting lawful arrest (sections 20, 255 (1)-(3), 262, 243 and 244 (a) of the Criminal Code, Cap. 154).

2. Appeal proceedings

F. The applicant's departure from Cyprus

70. Following the dismissal of his appeal, the applicant was deported from Cyprus and was put on the authorities' "stop list" (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring).

G. Second investigation by the IAIACAP

1. Investigation

71. On 9 April 2013 the Attorney General appointed two new investigators to reinvestigate the applicant's complaints. The Attorney General's office, upon re-examination of the file, spotted gaps in the investigation and particular omissions and inconsistencies in the reports. Furthermore, his office had been informed by the investigator A.S. that after the conclusion of the investigation, he had had an informal conversation with Inspector I.S, the head of the ECID of the Limassol CPS, who had confided in him that the applicant had been ill-treated while at the police station.

75. A number of the officers interviewed refused to provide answers to the investigators, reconfirmed their previous statements or stated that they could not recall the events. Inspector I.S. denied the occurrence of a discussion between him and the investigator A.S.

2. Investigators' findings

(a) With regard to the investigations that had already been conducted

77. In their report the investigators pinpointed a number of deficiencies in the investigation of the case from the very beginning on the part of the police and the first investigation by the IAIACAP. In particular, they noted the following.

78. First of all, Inspector I.S., who had at the time been in charge of the ECID, ought to have given instructions that the applicant's injuries be photographed when he had arrived at the station. This had not been done. Nor had the applicant's clothes been taken as evidence. If these steps had been carried out, it would have been possible to determine what had really happened.

79. With regard to the administrative investigation, the investigators first of all stressed that such investigations by the police themselves, following complaints that could on the face of it constitute criminal offences, were problematic and that such complaints should be from the very beginning transferred to the IAIACAP. In addition, they observed that there had been a number of omissions in the context of this investigation: the investigator M.M. had failed to ask the officers about the applicant's injuries and how they had happened; nor had he asked constable P.P., who had been the first officer to receive the applicant at the police station at 9.30 a.m., if the applicant had had any injuries on him at the time; he had merely filed (αρχειοθέτησε) P.P.'s statement; he had also not taken any investigative steps with regard to the applicant's injuries - he had filed the medical report of the pathologist Dr A.K., which referred to the applicant's injuries and had not sought to obtain a medical report by Dr S.J., who had visited the applicant in hospital. Lastly, he had not asked for a medical report from Dr V.D., who had examined special constable G.S.

80. In so far as the first investigation by the IAIACAP was concerned the investigators noted that investigator A.S. should have tried to elucidate significant inconsistencies in the applicant's allegations and statements when he had had the opportunity to do so and when the events had still been fresh. Furthermore, in view of the content of the applicant's statements, the investigators considered that an identity parade had been called for and, in fact, both the investigator A.S. and the IAIACAP had been under a legal obligation to conduct an identity parade whatever the result. The failure to do so had led to the possible loss of important evidence

81. According to the investigators, the CCTV footage ought to have also been closely examined by investigator A.S. as it showed that the facts as described by Special Constable G.S. as to the way he had approached the applicant at the ATM had been true, thus contradicting the applicant's version of events up to that point. In the footage G.S. can be seen approaching the applicant from behind; the applicant then turned his head and saw him. G.S can be seen touching the applicant's left shoulder with his hand. The applicant almost immediately pushed him. The CCTV did not record the rest.

82. Lastly, the investigators expressed their concern about the fact that the investigator A.S had kept the I.S.'s admission to himself and had not informed the IAIACAP or the Attorney General immediately. He had therefore withheld important evidence.

(b) With regard to applicant's ill-treatment allegations

83. The investigators first noted the difficulties they had encountered in their investigation of the case which were mainly attributed to the passage of time as well as the fact that they had been unable to interview the applicant in order to receive further clarifications.

84. After assessing the evidence before them, they concluded that the force used during the applicant's arrest had not been excessive and had been reasonable and necessary and that it had caused certain injuries especially to the applicant's face and knee.

85. With regard to the evidence before them, they noted inter alia, the differences between certain of the officers' statements concerning the state of the applicant and the existence or degree of his injuries. They also pointed out that the doctors who had later examined the applicant at the hospital had found greater injuries than those described by the officers. The doctors had not, however, recorded wounds on the left shoulder blade as had been recorded in the prisoner record by Constable C.T. (see paragraph 15 above and compare to paragraphs 23-25 and 27 above). Furthermore, the Canadian Consul in her statement had described injuries which had not corresponded to those in the medical report of Dr Y.I., who had seen the applicant on the same day as her.

86. The investigators considered that the presumption of ill-treatment under section 6 of Law no. 235/1990 (see paragraph 98 below) was applicable in the case: it was presumed that the person responsible for ill-�treatment was the person in charge of the police station and the questioning for the investigation of the case in relation to which an arrest and/or detention was made unless an explanation was given for the cause of the injuries. Thus, according to the investigators there was sufficient evidence allowing the criminal prosecution of Inspector I.S. The same applied in respect of Constable M.P., who had been accused by the applicant of having been present during his ill-treatment but of not having done anything to stop it and of having ignored his request to be taken to hospital.

3. Further steps ordered by the Attorney General

90. On 29 November 2013 the file was returned to the investigators with the request that they consult a forensic expert in order to establish how the applicant's injuries had been inflicted. The investigators were also instructed that questions be prepared and forwarded to the prosecuting authorities in Canada to obtain answers from the applicant.

91. On 10 January 2014 the forensic experts who had been contacted by the investigators concluded that they were unable to establish on the basis of the documents and photos how the applicant's injuries had been inflicted - whether they had been inflicted by ill-treatment or from another cause such as falling to the ground. They would have been in a better position if they had been called to examine the applicant on the day he had presented with the injuries.

92. In the meantime, on 3 January 2014, the investigators prepared a request for legal assistance by the Canadian authorities, asking that a statement be provided by the applicant. Their questions to the applicant were included in writing. An email exchange followed between the applicant's lawyer and the Attorney General's office. It transpires from this that the applicant's lawyer refused to provide the authorities with the applicant's address and telephone number, which were necessary for the purposes of the request for legal assistance. He insisted instead that the Cypriot authorities pay for the applicant's expenses to travel to Cyprus to provide a statement or that the Cypriot authorities go to Canada to see him. As such, the request for legal assistance was not submitted and the applicant was subsequently not called to Cyprus.

4. Decision taken by the Attorney General

93. On 11 June 2014 the Attorney General concluded that the possibility that the applicant's injuries had been caused by the reasonable force during the applicant's arrest and/or by the applicant's fall could not be excluded. Similarly, it could not be excluded that they had been caused by ill-�treatment at the police station. He disagreed with the investigators' suggestion that the presumption of ill-treatment under section 6 of Law no. 235/1990 (see paragraphs 86 above and 98 below) was applicable as in the circumstances of the case it had not been established that the injuries the applicant had had after his transfer to the police station, had not been present before and/or had not been caused during his arrest. From an examination of all the evidence in the case the Attorney General ascertained that the applicant's credibility had been irreversibly damaged. He referred, in particular, to the fact that the applicant's allegations of ill-treatment had been dismissed by the Limassol District Court in the criminal case against him. His grounds of appeal had also been rejected by the Supreme Court, including the ground challenging the first-instance court's findings on this point. In addition, the Attorney General pointed out that the applicant's version of events had been refuted by other independent and credible evidence.

94. In so far as the investigator in the first investigation had informed the second investigator of the admission of Inspector I.S., this did not have any bearing on the Attorney General's opinion that the applicant was an unreliable witness. This, in combination with the fact that it had not been clarified which of the officers had allegedly ill-treated him, led to the conclusion that it was extremely difficult to establish the commission of any offences by any of the officers.

95. Based on the above, the Attorney General concluded that the criminal prosecution of any individual was not justified.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Independent Authority for the Investigation of Allegations and Complaints against the Police ("the IAIACAP")

B. Law no. 235/1990: The [United Nations] Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Ratification) Law of 1990

98. Section 6 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."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

B. Merits

1. The parties' submissions

(a) The applicant

(i) Substantive aspect of the complaint

(ii) Procedural aspect of the complaint

(b) The Government

(i) Substantive aspect of the complaint

(ii) Procedural aspect of the complaint

2. The Court's assessment

(a) General principles

131. Generally speaking, for an investigation to be effective, the persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Mocanu, cited above, § 320).

(b) Application to the present case

133. The Court observes that on 27 February 2011 the applicant was arrested and then taken to Limassol police station for questioning. The parties agree that the police used force against the applicant during his arrest. It is also undisputed that the applicant sustained certain injuries which are supported by medical evidence. The applicant was examined by two doctors at Limassol General Hospital, Dr A.K. and Dr C.T., approximately seven hours after his arrest (see paragraphs 23 and 24 above). The medical examination by Dr A.K. detected a cephalohaematoma in the right temporal region; abrasions in the parietal area; abrasions and mild oedema on the nose; bruising of his lower lip; a broken upper incisor; a bruise on the left hemithorax with sensitivity and a few abrasions; oedema and abrasions on both wrists; a few abrasions on the knees and loss of neck curve. The applicant complained of pain during the examination of the movement of his right knee; and sensitivity in the upper thoracic vertebra and the upper lumbar spine (see paragraph 23 above). Dr C.T. ascertained that the applicant had marks from blows mainly on his chest and face (see paragraph 24 above).

135. The Court finds that the applicant's injuries are sufficiently serious to fall within the scope of Article 3 of the Convention.

139. Having regard to the fact that neither the use of force by the police officers nor the applicant's resulting injuries are disputed by the domestic authorities, it is incumbent on the respondent Government to provide a satisfactory and convincing explanation as to how the applicant's injuries could have been caused and whether they were caused by an illegal use of force, in violation of Article 3 of the Convention.

140. The Court observes that the Government's position regarding the disputed issues is based on the findings of the domestic investigation. The Court accepts that the explanation required from the Government can be said to have been provided when it is proved to the Court's satisfaction by the Government that their national authorities have conducted an effective investigation capable of establishing the circumstances and the nature of the force used.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the substantive and procedural limbs of Article 3 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 in both its substantive and procedural aspects;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts at the rate applicable at the date of settlement:

(i) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident