FOURTH SECTION

DECISION

Application no. 12214/07 Erkan EGMEZ against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 18 September 2012 as a Chamber composed of:

Lech Garlicki, President, David Thór Björgvinsson, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Nebojša Vučinić,

Vincent A. De Gaetano, judges, Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 24 February 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

THE FACTS

1. The applicant, Mr Erkan Egmez, is a British national of Turkish ‑ Cypriot origin, who was born in 1966 and lives in Nicosia, in the northern part of Cyprus. He is represented before the Court by Mr T. AkillioÄŸlu, a lawyer practising in Ankara. The respondent Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The Government of the United Kingdom were given notice of the application and they informed the Court on 6 December 2010 that they would not exercise their right to intervene in the present case.

A. The circumstances of the case

1. Background to the case: application no. 30873/96 and the Court’s judgment of 21 December 2000

2. On 26 March 1996 the applicant lodged an application with the European Commission of Human Rights (application no. 30873/96) against the Republic of Cyprus under former Article 25 of the Convention. The applicant alleged that he had been in effect kidnapped and tortured by the authorities of the Republic of Cyprus, that he had never been informed of the reasons for his arrest, that he had not been brought promptly before a judge, that he had been unable to obtain review of his detention, which had been unlawful, and that he did not have an effective remedy before the courts of the Republic.

3. On 18 May 1998 the Commission declared the application admissible and decided to take oral evidence in respect of the applicant’s allegations. Between 22 and 26 March 1999, the delegates of the Commission heard twenty-four witnesses in Cyprus, including the applicant, the police officers involved in the applicant’s arrest and the doctors who had examined the applicant. In its report of 21 October 1999 (former Article 31 of the Convention) the Commission expressed unanimously the opinion that there had been a violation of Articles 3 and 13 of the Convention and no violation of Article 5 §§ 1, 2, 3 and 4 and Article 6 § 1 of the Convention.

4. The application was then considered by the Court which gave judgment on 21 December 2000 ( Egmez v. Cyprus , no.30873/96, ECHR 2000 ‑ XII). In its judgment the Court accepted the findings of fact made by the Commission (see §§ 9-44 and §§ 54-55 of the judgment). It first rejected the respondent Government’s preliminary objection of non-exhaustion of domestic remedies to the applicant’s complaint under Article 3 of the Convention. In this respect the Court noted that although the Ombudsman had opened the way for the institution of criminal proceedings against the officers involved in the applicant’s alleged ill-treatment, the Attorney-General had refrained from taking any action (§ 68 of the judgment). The Court considered that the competent authorities of the Republic of Cyprus would have discharged their obligations under the Convention by instituting criminal proceedings against the officers named in the Ombudsman’s report, irrespective of the outcome of such proceedings (§ 70 of the judgment). This was, in the Court’s view, the only way of putting matters right in the circumstances of the case and, given the applicable legal provisions, the applicant’s complaint to the Ombudsman should have normally brought about this result (§ 72 of the judgment). The Court then held that the ill-treatment to which the applicant had been subjected had been inhuman in breach of Article 3 of the Convention (§§ 77-79 of the judgment). Further, the Court held that there had been a breach of Article 13 of the Convention as the authorities had not conducted an investigation capable of leading to the punishment of the officers involved in the applicant’s ill-treatment. The Court observed that such an investigation was “the only remedy that was appropriate for the kind of violation complained of” (§ 100 of the judgment); however, the Attorney ‑ General, who was the official in charge of bringing criminal proceedings in the Republic, had not taken any steps in this direction (§ 100 of the judgment).

5. The Court also found that there had been no violation of Article 5 §§ 1, 2, 3 and 4 of the Convention (§§ 80-95 of the judgment) and that no separate issue arose under Article 6 § 1 of the Convention (§ 102 of the judgment).

6. As to the application of Article 41 of the Convention the Court awarded the applicant GBP 10,000 for non-pecuniary damages together with GBP 400 in legal costs and expenses for the proceedings before the Commission (§§ 104-108 of the judgment).

2. The steps taken by the Government subsequent to the Court’s judgment

7. On 30 April 2003 a former President of the Supreme Court of Cyprus was appointed as an independent criminal investigator (“the investigator”) by the Attorney-General acting ex officio .

(a) The facts put forward by the Government

8. The Government, in giving their factual account, relied on a letter sent by the investigator to the Attorney-General dated 12 July 2004 in which the former set out the various developments that had taken place in the investigation and, in particular, the problems he had faced in trying to obtain a statement from the applicant. The Government submitted that in April 2004, the investigator, after having carried out all the background preparatory work, had contacted Mr Kadri, the lawyer who had represented the applicant before the Nicosia District Court and the Ombudsman (see §§ 37 and 39 of the judgment), who informed him that the applicant would see him for the purpose of giving a statement. The investigator also made arrangements for an interpreter so that the statement could be taken in the Turkish language. Mr Kadri was informed of this.

9. On 26 May 2004 a person who stated that he was the applicant’s friend, visited the investigator and suggested that the applicant be paid a sum of money in return for a statement to the effect that he did not have a complaint and that the case be closed. The investigator informed him that as a criminal investigator he did not have or handle money. This person then suggested that both parties think about it. The investigator gave him his office and home phone numbers.

10. The following night, at about 9.30 p.m., the applicant telephoned the investigator at his home and a meeting was arranged for 2 June 2004, at 9 a.m. at the investigator’s office for the purpose of taking the applicant’s statement. On the above date and at about 9 a.m. the applicant called the investigator and informed him that he would not be coming to the meeting. He made a passing reference to Mr Kadri without further explanation. The investigator stated in his letter (see paragraph 8 above) that he expected that the applicant would contact him but that had not happened. Neither the applicant nor his lawyer contacted the investigator after this. In his letter the investigator informed the Attorney-General that it would not be possible to continue a criminal investigation without the complainant’s statement and sought the instructions of the Attorney-General as to how to proceed.

11. The Government submitted that as the applicant had not given a statement, the criminal investigation had not been able to proceed and remained open. The applicant had not contacted the investigator or the Attorney-General since 2 June 2004 in order to arrange a meeting and give his statement. The investigator had not contacted the applicant but was waiting for the applicant to get in touch with him.

(b) The facts put forward by the applicant

12. The applicant maintained that he had not been invited to make a statement, he had never been formally summoned by the investigator, and that he had never been informed of the new criminal investigation by the Government or the Committee of Ministers or sent a document explaining the new procedure to be followed. He had found out about this new investigation from the letter dated 15 June 2006 he had received from the Department of Execution of Judgments of the European Court of Human Rights following the closure of the case (see paragraph 28 below). He stated that he had contacted the investigator who had informed him after a long period of time that he could not register the applicant’s complaint against the police officers because the Government had not appointed an interpreter.

3. The proceedings before the Committee of Ministers of the Council of Europe and relevant documents

(a) Revised Memorandum prepared by the Secretariat in order to take account of information submitted up to 7 October 2004 (Information docs CM/Inf/DH(2004)5 revised 5)

13. In the revised memorandum of 2 December 2004, a revised version of the memorandum presented at the 871 st meeting of the Committee of Ministers, the Secretariat considered that the information provided by the Government on the measures adopted until then indicated that sufficient improvements in existing procedures and safeguards had been introduced. The relevant parts of the memorandum read as follows:

“...

Specific issues: recent developments and information received

i. appointment of an independent investigator and progress of the investigation

...

12. The Cypriot authorities stated in their letter of 27/05/2004 that the investigator had contacted the applicant through his lawyer in Cyprus and practical arrangements for meeting and taking a statement from him were in the process of completion. They further indicated, in their letter of 07/07/2004, that it was expected that the criminal investigator would meet the applicant in the near future to interview him and take a statement.

...

20. As regards cases of criminal offences involving human rights violations alleged to have been committed by members of the police where, following the evaluation of all collected evidential material submitted by the criminal investigator, it is decided that the latter does not warrant the filing of criminal proceedings, the Deputy Attorney General issued a circular on 20/09/2004 addressed to criminal investigators and all members of the Attorney General’s Office. In accordance with the circular, which is binding in form, in such cases, a letter shall be sent to the complainant/victim, or his or her lawyer or other person having made the relevant allegations (whether these were brought to the Attorney General’s knowledge directly or indirectly), informing him or her that the independent criminal investigator appointed by the Attorney General has completed the investigation, and that, following the study and evaluation of all collected evidential material submitted, the Attorney General’s Office is of the view that, for reasons which shall be stated in the letter, this does not warrant the filing of criminal proceedings against any member of the police. A copy of the circular was forwarded to the Secretariat on 05/10/2004.

21. The same circular addresses cases in which, at the stage of evaluation of evidential material collected and submitted by the criminal investigator, or at any other stage of the criminal investigation, it comes to the knowledge of the Attorney General’s Office through the criminal investigator or through any event in the case-file that the complainant/victim withdraws his or her allegations, or does not wish the investigation to continue, or is uncooperative, or that at present the complainant/victim or substantial witnesses are not in the Republic of Cyprus and cannot be traced. In accordance with the circular, in such cases, the investigation file must remain open until the investigation is completed. Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue/complete the investigation, they may not do so indefinitely. Consequently, a decision as to whether or not to file criminal proceedings is not required at that stage. Henceforth, the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney General’s Office considers that, in the circumstances, the investigation for the time being cannot proceed further. The investigation and the matter of whether or not to bring criminal proceedings thus remain open, with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved.

iv. access of complainants to investigations

25. The Cypriot authorities have stated that the investigation process is confidential. However, the complainant’s participation in the investigation process is important, whether the alleged offence was committed by police officers or members of the public.

26. From the outset of the investigation process, where the alleged offence was committed by a police officer, the complainant is informed by a letter from the Attorney General that an independent criminal investigator has been appointed to investigate his or her allegations; the letter includes the name and particulars of the investigator. A copy of two such letters was forwarded to the Secretariat on 27/05/2004.

27. Complainants participate in investigations by giving their own testimony, upon which the investigation is based. The complainant is always the first to be interviewed; he or she supplies information and his or her statement is taken by the investigator. The investigator can come back to the complainant for any clarifications and supplementary statements or information as the investigation proceeds, thereby giving the complainant the opportunity to challenge the statements of other witnesses. The complainant is not, however, given the statements of other persons interviewed in the course of the investigation; nor are the latter given the complainant’s statement. Criminal investigations proceedings in Cyprus are modelled on those of the United Kingdom.

28. Complainants are also prosecution witnesses in the criminal proceedings. Thus, during a criminal trial, complainants can give their own testimony in front of the Court. Indeed, the prosecution bases its case on the testimony of complainants. The latter also have the opportunity to confront the alleged perpetrators and their witnesses during the hearing, to listen to their testimonies and to their cross-examination by the prosecution. Criminal trial proceedings in Cyprus are modelled on those of the United Kingdom.

Secretariat assessment :

29. Since the Court’s judgment in the present case and the requests received from the applicant, an independent investigator has been appointed and his investigation opened. The applicant has not submitted any further complaints about the manner in which this investigation is being carried out.

...

34. The Secretariat further notes the circular issued by the Deputy Attorney General on 20/09/2004, which is binding on all members of the Attorney General’s Office assessing criminal investigation files involving allegations of human rights violations committed by members of the police force and on criminal investigators appointed to deal with such cases. The Secretariat notes that, following the issuing of this circular, the aforementioned officials are now required to inform victims/complainants when it is decided not to proceed with the prosecution of the alleged perpetrator in such cases, and of the reasons for such a decision. The fact that such investigations are not to be closed in cases where an obstacle temporarily prevents the investigation from being pursued further is also noted.

35. In sum, the Cypriot authorities have taken a number of measures to strengthen the effectiveness of investigations into allegations of human rights violations committed by members of the police. In addition, following the events that gave rise to the present judgment, a possibility has been introduced of opening a fresh, independent investigation into the allegations at the basis of the present violation and such an investigation has indeed been opened, which, in the circumstances of the present case, appears to meet the requirements of execution. In the light of the foregoing, it would now appear that the guarantees surrounding such investigations, combined with the appointment of an independent investigator in the present case, are sufficient to allow the Committee to close its examination of the individual measures taken in the present case.”

(b) Resolution of the Committee of Ministers of the Council of Europe of 12 April 2006

14. The Committee of Ministers of the Council of Europe concluded its examination of the cases of Egmez v. Cyprus (cited above) and Denizci and Others v. Cyprus (nos. 25316-25321/94 and 27207/95, ECHR 2001 ‑ V) by adopting Resolution ResDH(2006)13, the relevant parts of which read as follows:

“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases of Egmez against Cyprus, delivered on 21 December 2000, and Denizci and others against Cyprus, delivered on 23 May 2001, transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

...

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures taken in consequence of the European Court’s judgments, having regard to Cyprus’ obligation under Article 46, paragraph 1, of the Convention to abide by them;

Having satisfied itself that on 24 January 2001 and on 3 July 2001, within the time-limits set, the government of the respondent state had paid the applicants the sums provided for in these judgments;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken, in compliance with Article 46, paragraph 1, of the Convention, in order to grant the applicants, as far as possible, full redress for the violations found ( restitutio in integrum ) and to prevent new violations of the same kind as those found in the present judgments; this information appears in the appendix to this resolution;

Recalling, as far as individual measures are concerned, the continuing obligation to conduct effective investigations into the actions of security forces, particularly in cases where procedural violations of Articles 2 or 3 have been established (cf Interim Resolution ResDH(2005)20 Action of the Security Forces in Northern Ireland) or, as in the Egmez case, a violation of Article 13;

Noting in this context with interest the ex officio appointment by the Attorney General of an independent criminal investigator in both cases (see appendix) and that the ensuing investigations appear “capable of leading to the identification and punishment of those responsible”; regretting, however, the time required for this appointment in view of the importance of taking individual measures promptly,

Welcoming the general measures adopted by Cyprus following the judgments of the Court which today appear effectively to prevent new, similar violations; noting, in particular, with satisfaction the rapid interim measures taken by the Council of Ministers, the Attorney General and the Minister of Justice and Public Order to prevent as far as possible new violations awaiting the entry into force of the comprehensive reforms which had been initiated,

Declares, after having examined the information supplied by the government of Cyprus, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases.”

15. The appendix to Resolution ResDH (2006)13 sets out the information provided by the Government of Cyprus during the examination of the cases of Egmez and Denizci and Others by the Committee of Ministers. The relevant parts of the appendix read as follows:

“I. Individual measures aimed at achieving restitutio in integrum for the applicants

I.a. Introductory note

It is recalled that in the case of Egmez a violation of Article 13 was found by the Court on the ground that there had been no “thorough and effective investigation capable of leading to the identification and punishment” of the police officers responsible for the applicant’s ill-treatment (see, in particular, paragraphs 65, 70, 100 of the judgment). This was despite the fact that the Ombudsman of the Republic of Cyprus, following a complaint by the applicant, had carried out an investigation into the case and on 25 April 1996 issued, and transmitted amongst others to the Attorney General, a report identifying police officers who had been involved in the applicant’s ill-treatment.

I.b. Appointment of an independent criminal investigator

Following the European Court’s judgments, the Cyprus government decided to proceed to the initiation of fresh, independent criminal investigations into both cases. On 30 April 2003, by decision of the Attorney General, Mr D.S, former President of the Supreme Court of Cyprus, was appointed as criminal investigator in both of these cases. These investigations are not as yet concluded.

It is noted that the applicant in the case of Egmez has not, since the opening of investigations, pursued his requests in this respect (initially raised in letters addressed to the Committee in 2001 and in 2002) or submitted any complaints regarding their conduct. The applicants in the case of Denizci and others have not, in any way, pursued this matter with the Committee.

The government considers that the powers of independent investigators and the procedural safeguards surrounding them guarantee that the fresh investigations, which will be concluded without delay, meet the requirements of the Convention (see below).

I.c. Powers and effectiveness of the independent criminal investigator

After the events at issue, the Attorney General received the power to appoint independent investigators in cases of alleged abuses by police forces (see further section II.2.b below). Criminal investigators appointed by the Attorney General are independent lawyers or former judges. They have the same powers and duties as police officers investigating the commission of offences allegedly perpetrated by members of the public. Under section 4 (3) of the Criminal Procedure Law both are “investigating officers” having the powers given to such officers by sections 5-8 of the Law. They are empowered by this Law not only to order attendance and taking of statements by witnesses, but also to require the production of documents. They can also carry out searches under the authority of search warrants issued by a court. Such warrants may be issued by a court upon a sworn written declaration by the investigator that there are reasonable grounds for believing that evidence as to the commission of an offence is to be found in the place concerned.

The duties of police officers required to give information/statements in criminal investigations carried out by investigators appointed by the Attorney General are the same as those of members of the public when the investigation is being carried out by police officers.

Complainants participate in investigations by giving their own testimony, upon which the investigation is based. The complainant is always the first to be interviewed; he or she supplies information and his or her statement is taken by the investigator. Complainants are also prosecution witnesses in the criminal proceedings.

The effectiveness of these investigations is also safeguarded by the general measures adopted by the Cyprus government after the European Court’s judgments (see below, especially section II.2).

II. General measures

II.1 Interim measures awaiting the entry into force of comprehensive legislative reforms

Immediately following the delivery of the present judgments, the Attorney General of Cyprus and the Minister of Justice and Public Affairs took a number of measures to enable Cyprus to meet its obligation under Article 46, paragraph 1, of the Convention to prevent new violations as far as possible pending the legislative and other reforms made necessary by the present judgments. These measures are outlined below, in sections II.2.b and II.3.b-c.

A more general reflection also rapidly started on the more comprehensive measures required effectively to prevent new violations of the present kind. The resulting legislative and other measures are presented below.

II.2 General measures adopted for the prevention of similar violations of Articles 3 and 13

II.2.a. Legislative amendments to enhance arrested and detained persons’ protection from torture or inhuman or degrading treatment by members of the police and prosecution in such cases

i) New legislation for the effective protection of persons in detention from ill ‑ treatment

The “Rights of Persons under Arrest and Detention Law 2005”, which entered into force on 30 December 2005, includes a series of provisions in particular aimed at better implementing constitutional protection from torture or inhuman or degrading treatment or punishment. The major provisions of this Law are the following:

(a) All detainees now have a statutory right to be protected from torture or inhuman or degrading treatment or punishment or “any other physical, psychological or mental violence”;

(b) The Law expressly states that the state is under an obligation to ensure the above right;

(c) Detention centres’ principals are under an obligation to care for the detainees’ physical and mental health;

(d) Detention centres’ principals are under an obligation to ensure that minor (under the age of 18 years) detainees are separated from adults;

(e) Women detainees should be separated from men; special protection measures should be taken for pregnant detainees or for those with newborn children;

(f) Detainees have the right to medical checks, care and supervision by private medical doctors of their own choice or by State medical doctors;

(g) A list of detainees’ rights should be held in every cell, at least, in Greek, Turkish and English.

These new statutory rights and obligations play an important role in improving the criminal and civil liability of the state and of principals of detention centres in case of abuse.

ii) New legislation providing for heavier sanctions against offending police officers

The “United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Ratification) Laws” of 1990 and 1993 have, by the amendments which came into force on 13 December 2003, been extended to cover cruel, inhuman or degrading treatment. It was thus an offence at the time of the events in question, for any person, including a member of the police, to subject another person to torture. Commission of the offence by members of the police carried a heavier sentence than its commission by other persons and was punishable with imprisonment for up to five years, instead of for up to three years.

As a result of these above amendments, members of the police committing the offence of inhuman, cruel or degrading treatment or punishment, are now exposed to even heavier sanctions (sentence of four to seven years’ imprisonment maximum) than was earlier the case.

iii) Enlargement of personal scope of police officers’ criminal liability and new evidentiary rules

By virtue of these legislative amendments, in cases where ill-treatment is alleged to have been committed at police stations during detention of the complainant, it is not only the members of the police actually perpetrating the acts of ill-treatment who are subject to criminal liability (for torture, or inhuman or degrading treatment, or for assault, as the case may be), but also the officers in charge, provided that it is ascertained by medical examination carried out at any time before the complainant’s release from the station, or immediately after, that he/she bears external injuries which he/she did not have at the time of admission.

This criminal liability of officers is not dependent on whether the actual perpetrators are identified by the investigation. The finding of such injuries gives rise to a presumption that the complainant was ill-treated by a member of the police at the police station of his detention, and that the police officers in charge of the station and of the investigation bear responsibility for the ill-treatment unless they give a reasonable explanation as to the injuries having been caused otherwise than by ill-treatment of the complainant by a member of the police (for example self-inflicted, or inflicted by another detainee or visitor at the station).

In the absence of a reasonable explanation, the officers concerned are considered to have committed the criminal offence carrying a term of imprisonment for up to two years, and if the ill-treatment qualifies as torture, or as inhuman, cruel or degrading treatment or punishment, for up to four and three years respectively.

The introduction of this new legislation aims at eliminating the possibility of impunity in cases in which, although there may be sufficient evidence of injuries having been sustained by the complainant at a police station, there is not sufficient, or any evidence as to the identity of the policeman concerned, so that criminal proceedings can be instituted. It thereby considerably limits the Attorney General’s discretion pertaining to the initiation of criminal proceedings against offending police officers.

II.2.b. Creation of a more effective legal framework for independent investigations

i) Strengthening the Attorney General’s power to appoint independent criminal investigators

On 3 October 1996, the Cypriot Council of Ministers delegated to the Attorney General the power to appoint independent criminal investigators in cases where a written complaint has been addressed to him.

As an interim measure, following the judgments of the Court, the Council of Ministers, by decision of 22 March 2001, strengthened the powers of the Attorney General, so that he could also appoint independent criminal investigators ex officio, i.e. even without any written complaint by the victim. The aim of this measure was notably to allow for rapid and effective investigations into the violations established in the present cases (see above section I, Individual Measures).

ii) Enhancement of the effectiveness of investigations carried out by independent investigators

In addition to the above measures, the Deputy Attorney General issued a circular on 20 September 2004 entitled “Criminal investigations by independent criminal investigators appointed by the Attorney General of the Republic concerning allegations of commission of criminal offences by members of the police which concern human rights violations”. It was addressed to criminal investigators and all members of the Attorney General’s Office.

In accordance with the circular, which is binding in form, in cases of decisions not to file criminal proceedings against any member of the police, after an evaluation of evidential material, a letter should be sent to the complainant/victim or their lawyer or other person having made the relevant allegations (whether these were brought to the Attorney General’s knowledge directly or indirectly), informing them that the independent criminal investigator appointed by the Attorney General has completed the investigation, and that, following the study and evaluation of all collected evidential material submitted, the Attorney General’s Office is of the view that, for reasons which shall be stated in the letter, this does not warrant the filing of criminal proceedings against any member of the police.

The same circular also provides that if at the stage of evaluation of evidential material collected and submitted by the criminal investigator, or at any other stage of the criminal investigation, it comes to the knowledge of the Attorney General’s Office through the criminal investigator or in any event from the investigation file that the complainant/victim withdraws his or her allegations, or does not wish the investigation to continue, or is uncooperative, or that at present the complainant/victim or substantial witnesses are not in the Republic of Cyprus and cannot be traced, the investigation file must remain open until the investigation is completed. Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue/complete the investigation, they may not do so indefinitely. Consequently, a decision as to whether or not to file criminal proceedings is not required at that stage. Henceforth, the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney General’s Office considers that, in the circumstances, the investigation for the time being cannot proceed further. The investigation and the matter of whether or not to bring criminal proceedings thus remain open, with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved.

II.2.c. Improved legal aid - Enactment of “Legal Aid Law 2002”

According to the “Legal Aid Law 2002”, in force as from 9 August 2002, legal aid in civil as well as criminal proceedings is now granted to victims of human rights violations. It is noted that relatives of persons who allegedly died as a result of a serious police abuse may also benefit from legal aid.

II.2.d. New legislation providing for an actionable compensation claim by detainees

In case of violation of any of the rights enshrined in the “Rights of Persons under Arrest and Detention Law 2005” mentioned above, detainees have a reinforced constitutional right to lodge an action for damages against the state and member of the police, the detention centre or the prison where they are or have been detained. This is without prejudice to any other right to compensation provided for by law.

...

III. Conclusion

The Government of Cyprus considers, in view of all individual and general measures adopted, that Cyprus has satisfied its obligation, under Article 46, paragraph 1, of the Convention to abide by the European Court’s judgments in the present cases.”

4. Communications between the applicant and the Secretariat of the Committee of Ministers of the Council of Europe and the Department of the Execution of the Court’s Judgments

(a) Before April 2003 and the commencement of the investigation

16. In a letter dated 19 April 2001 the applicant informed the Director of Human Rights of the Council of Europe that the respondent Government had paid him the amount of GBP 10,400. He maintained, however, that the perpetrators of his ill-treatment had been treated with impunity and that there was no effective domestic remedy. He asked the Committee of Ministers to take into account that the respondent Government were seeking to conceal the fact that the police officers responsible for the applicant’s ill ‑ treatment had not been prosecuted.

17. The applicant maintained that he had received no reply to his letter.

18. By a letter dated 12 March 2002 to the Director of Human Rights of the Council of Europe the applicant repeated his request and expressed his concern about the silence of the respondent Government on the issue of the prosecution of police officers responsible for “the torture and ill-treatment” inflicted on him. He stated that the identification of the suspects had been sufficient to enable the Attorney-General of the Republic to use his discretionary power and open an investigation. He claimed, however, that the Attorney-General did not want to use his powers to initiate an investigation against the “torturers”. The Government were under obligation to respect the Court’s judgment and prosecute the relevant police officers, who were still in service. The applicant expressed his wish to be added as a civil party if such an investigation took place.

19. The applicant maintained that there had been no response to his letter.

20. In a letter dated 13 September 2002 addressed to the Director of Human Rights of the Council of Europe, the applicant noted that on the website of the Committee of Ministers the following was stated, inter alia, in respect of individual measures adopted in connection with the execution of application no. 30873/96:

“The applicant’s lawyer sent a letter to the Secretariat on 19 April 2001 raising several questions about the need to adopt individual measures in this case. In May 2001 the Secretariat forwarded a copy of the letter to the Cypriot authorities. The latter confirmed that they were presently examining the measures that might need to be taken in respect of this case and indicated that the Secretariat would be kept informed in writing of any development in this field.”

21. The applicant noted that he wished to have information on the measures adopted by the Government in this respect as well as the reasons for their silence. He requested, inter alia , that the Committee of Ministers adopt a recommendation reminding the Government of their obligation to comply with the findings of the Court under Article 13 of the Convention.

22. The applicant maintained that he had never received a reply either from the Council of Europe or from the respondent Government.

23. In an e-mail dated 6 February 2003 to the Department of the Execution of Judgments of the Court the applicant requested information concerning the developments in his case. He further noted that the police officers involved in his ill-treatment were known to the authorities but despite this the Attorney-General, exercising his discretionary powers, had not prosecuted them.

24. In an e-mail sent in reply on the same date, the applicant was informed by the Secretariat of the Committee of Ministers that the Committee considered that there were still some outstanding questions in respect of individual and general measures that Cyprus needed to adopt in order to comply with the judgment, and that further information and clarifications had been requested from the Cypriot Government in this connection.

(b) Following the commencement of the investigation but before the adoption of Resolution ResDH (2006)13

25. In a letter dated 26 September 2003 addressed to the Committee of Ministers the applicant repeated his complaint in general that the Cypriot Government had failed to comply with paragraphs 99 and 100 of the Court’s judgment.

26. The applicant maintained that he had received no response to his complaint.

(c) After the adoption of Resolution ResDH (2006)13

27. By a letter dated 17 May 2006 the applicant was notified of the adoption of Resolution ResDH (2006)13. In his application form the applicant stated that he received this letter on the same date.

28. In a letter dated 12 June 2006 addressed to the Principal Administrative Officer of the Secretariat of the Committee of Ministers the applicant expressed his disappointment with the lack of effectiveness of the supervision of the execution of the Court’s judgment in his case. In his view it was regrettable that the Committee of Ministers had declared that the Government had complied with their obligations to execute the Court’s judgment when nothing had been done. The applicant stated, inter alia , that he had never been summoned by the investigator to give a statement in the course of the new investigation. This showed that nothing had been done by the Government in the six-year period that had followed the Court’s judgment. The Government had not taken into account the findings made by the Ombudsman which named the perpetrators of his ill-treatment. Further, the applicant repeated his view that, in order to comply with the Court’s judgment, the Attorney-General had to use his power to prosecute the relevant police officers. The applicant noted that he had made at least six separate complaints since 2003 to the Council of Europe about the Government’s inertia. Finally he stressed that the Government should revise their out-dated criminal procedure which provided that in the absence of a statement from a victim it was not possible to commence criminal proceedings.

29. By a letter dated 15 June 2006 the Department of Execution of Judgments of the European Court of Human Rights replied that having examined the issues raised by the applicant in his letter, it drew the applicant’s attention to the fact that, following the opening of the new criminal investigation in April 2003, he had not repeated his requests made in this respect in 2001 and 2002.

30. By a letter dated 14 October 2006 to the abovementioned Department, the applicant stated amongst other things that he had contacted the independent investigator who, after a long delay, had informed him that it had been impossible to register his complaint against the relevant police officers as the Government had not appointed an interpreter.

COMPLAINTS

31. The applicant complained under Articles 1, 3, 6, 13, 34 and 46 of the Convention. In particular, the applicant complained that the Government had failed to enforce the Court’s judgment of 21 December 2000 in the case of Egmez v. Cyprus (no. 30873/96, ECHR 2000 ‑ XII). In this respect, the applicant complained about the lack of an initiation of a genuine investigation followed by criminal proceedings against the officers involved in his ill-treatment despite the findings of the Court in its aforementioned judgment. With regard to Article 6, the applicant, relying on the Court’s judgment in the case of Hornsby v. Greece (19 March 1997, Reports of Judgments and Decisions 1997 ‑ II), claimed that this provision was applicable to proceedings concerning the enforcement of the Court’s judgments. Finally, the applicant complained that the Government’s failure to inform him of the opening of the new criminal investigation violated his right to individual petition before the Court under Article 34 of the Convention.

THE LAW

A. Alleged violation of Articles 1, 3, 6, 13 and Article 46 of the Convention

32. The applicant, relying on Articles 1, 3, 6, 13, 34 and 46 of the Convention, alleged that the Government had failed to carry out an effective investigation in compliance with the Court’s judgment in relation to his first application.

33. His complaint was communicated to the Government under the procedural aspect of Article 3 of the Convention taken in conjunction with Article 46 of the Convention. The relevant parts of these provisions read as follows:

Article 3

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

Article 46

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

...”

1. The parties’ submissions

(a) The Government

34. The Government considered that the applicant’s complaint was inadmissible on several grounds: (a) the court lacked jurisdiction ratione materiae as there was no new information or new fact capable of giving rise to a fresh procedural violation of Article 3 of the Convention; (b) the application had been introduced out of time; (c) the application constituted an abuse of petition; and (d) the applicant had failed to exhaust domestic remedies. Alternatively, the Government submitted that the application should be declared manifestly ill-founded on the merits.

(i) Alleged lack of jurisdiction ratione materiae

35. The Government submitted that the execution of the Court’s judgments was within the competence of the Committee of Ministers. The latter had already adopted a final resolution concerning the Egmez judgment pursuant to Article 46 § 2 of the Convention having regard both to the individual and general measures the Government had taken to comply with the Court’s judgment. It was clear from the actual wording of its resolution that the Committee of Ministers had not deemed it essential to ascertain the outcome of the criminal investigation before adopting its final resolution. In the Government’s submission, it followed that the Committee of Ministers had considered, on the one hand, that the individual and general measures already adopted were sufficient in themselves to close the case irrespective of the outcome of the criminal investigation and, on the other hand, in the absence of any complaint by the applicant, the criminal investigation appeared capable of leading to the identification and punishment of those responsible.

36. The Government emphasised that on the basis of Protocol No. 14 and Article 46 § 4 of the Convention, the Court should not be able to examine and rule on a claim that a Contracting Party was in violation of its obligations under Article 46 by either failing to give effect to the Court’s judgment or introducing corrective measures which were inadequate. Protocol No. 14 provided the Committee of Ministers with the possibility to refer the question to the Court for precisely such a judgment. The creation of this remedy by the Member States indicated that they did not intend that applicants would refer the matter to the Court through an ordinary application.

37. The Government further distinguished the present case from those of Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, ECHR 2009), Mehemi v. France (no. 2) , (no. 53470/99, ECHR 2003 ‑ IV) and Hertel v. Switzerland (dec.), (no. 53440/99, ECHR 2002) in which the Court ruled that it had jurisdiction to examine the new applications on the basis of new information or facts relating to issues undecided by the original judgments. In the present application, the criminal investigation was still open and there had not been any new information and/or fact capable of giving rise to a fresh violation of the Convention. The ongoing investigation could not be considered a new fact or new information justifying the Court’s jurisdiction ratione materiae.

(ii) Alleged failure to comply with the six-month time- limit

38. The Government submitted that following the applicant’s refusal to give a statement to the investigator in June 2004, almost three years had passed without any new information and/or facts regarding the investigation, which might have triggered the present application. The applicant should have realised in June 2004 or at least some months later, that the investigation could not have proceeded without his statement. In fact, without his statement the investigation had not advanced at all. The Government considered that if the applicant had had any misgivings about the investigation or did not agree with the measures that had been taken by the Government in the execution of the Court’s judgment he should have submitted his application to the Court at a much earlier date. The applicant had not shown that there were any ongoing developments in the investigation in order to justify his delay in submitting the present application.

(iii) Alleged abuse of the right of individual petition

39. The Government claimed that the application was an abuse of the right of individual petition and should therefore be dismissed pursuant to Article 35 § 3 of the Convention. It was their position that the application was knowingly based on untrue facts with a view to deceiving the Court. They pointed out that following the adoption of the final resolution by the Committee of Ministers, the applicant had complained that the investigator had never invited him to submit information on the relevant facts and that although he had contacted the investigator he had been informed that the Government had not appointed an interpreter and that therefore it had been impossible to register his complaint against the relevant police officers. This account of events by the applicant was false and was aimed at misleading the Court.

40. The Government pointed out that the applicant had not submitted any complaint concerning the execution of the judgment to the Committee of Ministers following the appointment of the investigator in April 2003 and while the examination of the case was pending before it. This was a factor that the Committee of Ministers had taken into account when it decided to close the case. Once the case was closed, the applicant submitted a succession of false information to the Committee of Ministers concerning the investigation. Further, the applicant had not contacted the investigator since April 2004 and had waited three years before submitting the present application to the Court. It was the Government’s position that the present application could have been avoided if the applicant had given or shown an interest in giving a statement to the investigator.

(iv) Alleged failure to exhaust domestic remedies

41. Lastly, the Government argued that the application should be declared inadmissible for non-exhaustion of domestic remedies. Although the applicant had been invited by the investigator to give a statement and a date for this had been arranged, he had not turned up for the meeting and had informed the investigator that he would not be coming. The applicant had not contacted the investigator or the Attorney-General on any occasion since then. The Government stressed that without the applicant’s statement the investigation could not proceed. In this respect, the Government submitted that it was still open to the applicant to contact the Attorney ‑ General for the purposes of making arrangements to have his statement taken. The Attorney-General would then probably assign the case to the Independent Authority for Investigation of Allegations and Complaints against the Police that had the competence to investigate allegations of ill-treatment by members of the police (see Mollazeinal v. Cyprus (dec.), no 20198/05, 18 June 2009). In this respect, the Government argued that the applicant could have, before filing his application with the Court, lodged a complaint with this authority about the ill-treatment he had been subjected to.

(v) As to the merits

42. The Government submitted that they had complied with Article 3 of the Convention taken together with Article 46; the Attorney- General had ex officio appointed an independent criminal investigator and the investigation was capable under domestic law of leading to the identification and punishment of those responsible. This had been acknowledged by the Committee of Ministers in its final resolution. The investigation was still open but had not proceeded due to the applicant’s failure to co-operate and to his bad faith; the applicant had not given and had not shown any interest in giving a statement, a step which was absolutely necessary for the investigation to continue. He had also attempted to bribe the investigator. The Government did not bear any responsibility in this respect. Neither the investigator nor the Government had shown any signs of unwillingness to pursue the applicant’s complaint or had been ineffective in the conduct of the investigation. The investigator, a former president of the Supreme Court of Cyprus, was a person whose impartiality was beyond doubt. He had proceeded in good faith to examine the applicant’s complaint and sought to take a statement from him. Bearing in mind the applicant’s conduct and his failure to turn up to give a statement without explanation, it had not been reasonable to expect the investigator to contact the applicant anew. On the contrary, it had been reasonable for the investigator to wait for the applicant to contact him.

(b) The applicant

43. The applicant submitted that the Government and the Secretariat of the Committee of Ministers had not informed him of the new criminal procedure. Neither the applicant nor his representative had been furnished with the necessary documents setting out the aim and the framework of the investigation and the procedure that would be followed. Further, the investigator had not invited him to give a statement and had not sent a summons to his representative but had considered it sufficient to call the applicant’s former representative who did not at the time have the authority to represent the applicant. Moreover, the applicant stressed that the police officers involved in the applicant’s inhuman treatment had already been identified and had testified before the Commission. The Ombudsman had referred to the Commission’s report in his annual report. However, the investigator had not taken any statements from the police officers and the Government claimed that the investigation was blocked by the applicant. Yet, there was no document proving that the applicant’s representative had been formally notified that the case would be closed if he failed to insist on the execution of the judgment.

44. The applicant also questioned the veracity of the investigator’s allegations concerning attempted bribery. He pointed out that the investigator had not given an official written statement concerning these allegations and that the applicant had not been invited to respond. Further, there had been no witnesses at the time.

45. Although Protocol No. 14 imposed an obligation on State Parties to respect the Court’s judgments, it was the applicant’s view that in this case the Government had not done anything to conform to the Court’s judgment in his case. In this connection, the applicant also pointed out that the Government had not effectively reformed their domestic legislation as the obligation of the victim to testify remained a condition for initiating criminal proceedings.

2. The Court’s assessment

46. The Court notes that the applicant complains that the Government failed to initiate a genuine investigation and to bring criminal proceedings against the officers involved in his ill-treatment in compliance with the Court’s judgment of 21 December 2000 in relation to his first application. He considers that there has been, as a result of this failure, a new violation of the Convention.

47. The Court therefore finds that it is first necessary to examine whether it has jurisdiction ratione materiae to examine the applicant’s complaint.

(a) General principles

52. On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases for example where the domestic authorities have carried out a fresh domestic examination of the case by way of implementation of one of the Court’s judgments whether by reopening of the proceedings (see Emre v. Switzerland (no. 2) no. 5056/10, 11 October 2011 and Hertel, cited above) or by the initiation of a entire new set of domestic proceedings (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08, 18 October 2011 and Liu v. Russia (no. 2) , no. 29157/09, 26 July 2011).

53. Moreover, in the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court has found a violation of that right during a certain period of time, it is not unusual for the Court to examine a second application concerning a violation of that right in the subsequent period (see, amongst others Ivanţoc and Others v. Moldova and Russia , no. 23687/05, §§ 93-96, 15 November 2011 regarding continuing detention; Wasserman v. Russia (no. 2), no. 21071/05, §§ 36-37, 10 April 2008 as to the non- enforcement of a domestic judgment; and Rongoni v. Italy, cited above, § 13, concerning length of proceedings). In such cases the “new issue” results from the continuation of the violation that formed the basis of the Court’s initial decision. The examination by the Court, however, is confined to the new periods concerned and any new complaints invoked in this respect (see for example, Ivanţoc and Others, cited above).

54. It is clear from the Court’s case-law that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut. So, for instance, in the Verein gegen Tierfabriken Schweiz (VgT) case (cited above), the Court found that it was competent to examine a complaint that the domestic court in question had dismissed an application to reopen proceedings following the Court’s judgment. The Court relied mainly on the fact that the grounds for dismissing the application were new and therefore constituted relevant new information capable of giving rise to a fresh violation of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) cited above, § 65). It further took into account the fact that the Committee of Ministers had ended its supervision of the execution of the Court’s judgment without taking into account the reopening refusal as it had not been informed of that decision. The Court considered that, from that standpoint also, the refusal in issue constituted a new fact (ibid, § 67). Similarly, in its recent judgment in the case of Emre (cited above) the Court found that a new domestic judgment given following the reopening of the case and in which the domestic court had proceeded to carry out a new balancing of interests, constituted a new fact. It also observed in this respect that the execution procedure before the Committee of Ministers had not yet commenced. Comparable complaints were, however, dismissed in the cases of Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010 and Steck-Risch and Others v. Liechtenstein , (dec.) no. 629061//08, 11 May 2010), as the Court considered, that on the facts, the decisions of the domestic courts refusing the applications for reopening were not based on or connected with relevant new grounds capable of giving rise to a fresh violation of the Convention. Further, in Steck-Risch the Court observed that the Committee of Ministers had ended its supervision of the execution of the Court’s previous judgment prior to the domestic court’s refusal to reopen the proceedings and without relying on the fact that a reopening request could be made. There was no relevant new information in this respect either.

55. Reference should also be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”: (i) an application is considered as being “substantially the same” where the parties, the complaints and the facts are identical (see Verein Gegen Tierfabriken Schweiz (VgT) cited above, § 63 and Pauger v. Austria (dec.), nos. 16717/90 and 24872/94, Commission decisions of 9 January 1995); (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports 1998-I and Powell and Rayner v. the United Kingdom , 21 February 1990, § 29, Series A no. 172); and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Patera v. the Czech Republic (dec.), no. 25326/03), Commission decision of 10 January 1996 and Chappex v. Switzerland (dec.), no. 20338/92, Commission decision of 12 October 1994).

(b) Application of the above principles

58. The Court notes that in its judgment of 21 December 2000 concerning the applicant’s first application it found, inter alia , that the ill ‑ treatment to which the applicant had been subjected was in breach of Article 3 of the Convention and that there was also a breach of Article 13 of the Convention due to the authorities’ failure to conduct an investigation capable of leading to the punishment of the officers involved in the applicant’s ill-treatment. The Court considered that the domestic authorities would have discharged their obligations under the Convention by instituting criminal proceedings against the officers named in the Ombudsman’s report, irrespective of the outcome of such proceedings (see paragraph 4 above).

59. In April 2003, two years after the judgment became final, the Government appointed an investigator to carry out an investigation into the applicant’s case. In April 2006 the Committee of Ministers adopted its final resolution in the case. The Committee considered that the appointment by the Attorney-General of an independent criminal investigator and the ensuing investigation appeared “capable of leading to the identification and punishment of those responsible”. Although expressing its regret about the time required for this appointment, the Committee considered that the investigation, taken together with the sums paid under Article 41 of the Convention and the general measures adopted by the respondent Government, were sufficient for the purposes of Article 46, paragraph 2. The examination of the case was concluded therefore before the investigation was actually completed, the applicant not having given a statement, and before criminal proceedings were brought against the officers involved in the applicant’s ill-treatment.

60. The applicant’s position is that the Government have not executed the Court’s judgment as they have failed to initiate a genuine investigation and to bring the required criminal proceedings.

61. The Court first observes that in so far as the appointment of the investigator and the ensuing investigation are concerned, these constituted the individual measures adopted by the Cypriot Government in order to execute the Court’s judgment and to secure the rights of the applicant which the Court found to have been violated. Consequently, the steps taken by the Government cannot be considered as new factual developments as they formed part of the measures adopted in pursuance of the Court’s initial judgment and thus fall within the supervision exercised by the Committee of Ministers. The Court, therefore, does not have jurisdiction to review these measures. This, it will be recalled, is a matter for the Committee of Ministers (see paragraphs 48-50 above).

64. The Court observes that the applicant contends that he had not been informed by the domestic authorities of the new criminal investigation and had not been summoned to make a statement. His position appears to be that there had been no contact between him and the authorities post-judgment. On his version of the facts, he had not been made aware of any steps taken by the authorities following the Court’s judgment. After the adoption by the Committee of Ministers of the final resolution, the applicant claimed that he had contacted the investigator who, after a long delay, had informed him that it had been impossible to register his complaint against the relevant police officers as the Government had not appointed an interpreter.

65. As for the Government, it is obvious from their observations before the Court that the investigation carried out by the investigator quickly lapsed into inaction. According to the Government the applicant was informed of the new investigation in May 2004 following a year of background preparatory work. Yet, following the unsuccessful attempt by the investigator to obtain the applicant’s statement in June 2004, the investigation came to a complete standstill as the investigator could not proceed without a statement (see paragraph 15 above, point I.c , § 3, of the appendix to the final Resolution of the Committee of Ministers). After that the investigator did not take any steps to contact the applicant for this purpose, but waited for the applicant to get in touch with him. Since the applicant never did, the investigation did not continue.

66. In view of the foregoing, it is clear that nothing much happened following the Court’s judgment and that there have been no developments or any new events that could revive a procedural obligation under Article 3 and thus trigger a possible breach of that provision. The Court notes that the applicant himself has not relied on or pointed to any particular facts or developments that could warrant a different conclusion. Even if the Court were to accept the applicant’s assertion that he contacted the investigator enquiring about the investigation following the adoption of the final resolution, this event cannot, in the Court’s view, suffice.

67. Further, the circumstances of the present application can be clearly distinguished from cases such as Ivanţoc and Others in which the Court was faced with a continuation of a violation of the Convention during a subsequent period of time (see paragraph 53 above ). This situation does not arise in the instant case in which the respondent Government did commence an investigation, as required, in order to execute the Court’s judgment but was unable to make any headway ( see in this regard paragraph 65 above).

68. That being so the Court finds that it has no jurisdiction to examine the applicant’s complaint under this head and therefore this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. Alleged violation of Article 34 of the Convention

69. Lastly, the applicant complained under Article 34 of the Convention that the Government had failed to respect his right to individual petition before the Court as they had not informed him of the opening of the new criminal investigation. Article 34 provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki Registrar President