SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60804/00 by Achilleas KORELLIS against Cyprus

The European Court of Human Rights (S econd Section) , sitting on 3 December 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , M rs W. Thomassen , M rs A. Mularoni, Judges , and Mrs S; Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Achilleas Korellis, is a Cypriot national, who was born in 1953 and lives in Nicosia . He was represented before the Court by Mr M. Pikis, a lawyer practising in Nicosia.

A. The circumstances of the case

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

The applicant was accused of rape and committed for trial before the Assize Court. It was alleged that the applicant had raped the complainant at his surgery during a urological examination.

According to the applicant, during the investigation proceedings, the police did not believe the complainant’s allegations. This led to a strong reaction from the complainant’s lawyer, a person with political connections who, in a letter dated 22 August 1996 to the Chief of Police, called for the immediate replacement of the investigating officer, which was done without informing the applicant.

The applicant contends that the new investigating officer carried out a search at the applicant’s surgery – where the alleged offence took place – without a search warrant, in the presence of the complainant and her lawyer, but in the absence of the applicant and his lawyer who were not even notified of the search. The new investigating officer took a statement from the complainant which was different from an earlier one in which she had said that she was not certain that she had actually been raped.

The police investigations in respect of the rape for which the applicant was convicted started on the day of the incident, i.e. 22 August 1996. The applicant was interrogated by the police about his involvement in this incident during the afternoon of the same day. He was acting on legal advice. The knickers and other objects connected with the case against the applicant were taken by the police also that day and were delivered on 29 August 1996 to the Government forensic expert (who testified during the trial as a prosecution witness).The expert proceeded to make scientific tests in order to discover whether there was Vaseline on any of the objects delivered to her by the police.

At the pre-trial stage, the defence asked for the discovery of a number of documents and the knickers of the complainant, which were in the prosecution’s possession. The defence wished to submit the knickers to scientific examination by its own experts in order to challenge the finding of the prosecution expert, a civil servant, that there was Vaseline on the knickers. When the prosecution refused, the defence successfully applied on 23 December 1997 to the Assize Court which, on 19 March 1998, ordered discovery on condition that the knickers remained in the prosecution’s possession with access being arranged for the defence examination.

On an ex parte application for certiorari by the Attorney General before a single judge of the Supreme Court, enforcement of the order was suspended. Then on 15 May 1998, after hearing the parties, the single judge granted judicial review and quashed the Assize Court order on the grounds of an excess of jurisdiction.

The applicant appealed. On 24 September 1998 the appeal was dismissed by a majority of 7 to 2 in the Supreme Court. It held that, in the absence of a specific provision in the law of criminal procedure, the trial court lacked jurisdiction to issue an order for discovery, and that neither Articles 12(5)(b) and 30(2) of the Constitution nor Article 6 §§ 1 and 3(b) of the Convention, empowered the court to issue such an order. The Supreme Court considered that the handing over of the knickers to the defence might lead to their destruction and thus deprive the prosecution of the possibility of presenting its case fairly in court. The court also held that whether the denial of a scientific examination would render the proceedings unfair was a matter which could only be examined at the end of the trial, but that the Assize Court could not take positive measures to ensure the fairness of those proceedings.

The Supreme Court, inter alia , stated:

“The issue of the orders in questions, and in particular the order for the handing over of exhibits, may possibly lead to other complications, damaging to the proper administration of justice.

Such a possibility – the destruction or alteration of an object relevant to the proof of the case – will have devastating consequences on the prosecution case, and the orders in question, intended to render the trial fair, will produce the opposite result...

There is no legislative or procedural authorisation for dealing before the trial with issues of what is disclosable , substantial, relevant or irrelevant. The course adopted by the Assize Court does not safeguard the right to a fair trial. On the contrary, it offends the principle of equality of arms and only contributes to delays, in violation of Article 30(2) of the Constitution. ...”

Thereafter the hearing before the Assize Court commenced. On 29 October 1998 the prosecution began with the production of evidence before the court. Prosecution witness 1 was the complainant herself. During the first day of her testimony she was asked by the prosecution to view the knickers and she identified them as those she had worn at the time of the rape. Expert evidence in relation to the knickers was produced by the prosecution on 3 February 1999, with the testimony of prosecution witness 11, Ms Konari , an expert at the State Forensic Laboratory. The knickers became evidence at the trial on 5 February 2000. She stated that a few days after the offence she had “washed” the pants in certain chemical liquids, thus managing to extract all the Vaseline from it, which she then preserved in a tube which was also produced as an exhibit in court.

Furthermore the expert excluded the possibility of there being a substance in the material out of which the knickers were made which was of the same chemical composition as Vaseline and the possibility of a finding, after a further examination of the knickers, that Vaseline had existed on them. No evidence contradicting this opinion or creating doubts as to its correctness was produced by the defence.

On 10 March 1999, the Assize Court found the applicant guilty and sentenced him to three years’ imprisonment. The Court based its decision mainly on the credibility of the complainant in respect of whom the court stated the following:

“Our global view is that [the complainant] is completely credible. Her evidence has all those elements which characterise and determine the credibility of evidence and we note the consistency, completeness, accuracy, naturalness and cogency of her whole relation, beyond, as we have already observed, the very good impression she made in the witness box. We also find nothing with reference to the matters discussed above, which affects or weakens this view of ours. On the contrary, [the complainant’s] evidence has passed the test of trial with reference to its contents and the rest of the evidence as well as with reference to the question of any motive. We would simply mention the fact that no motive was attributed to [the complainant] and no submission was made that her version is made up and no such suggestion was made by [the applicant] in his unsworn statement, but she was only cross-examined as we have noticed in relation to those parts of her version which concerned her statements to the police...”.

The Assize Court found that the evidence of the complainant was further corroborated by the fact that she made the first complaint to two persons whose testimony was accepted by the court. The court also took into account in corroboration of the complainant’s allegations the fact that, according to a prosecution expert, evidence of Vaseline was found on the knickers which the complainant had been wearing at the material time, thus supporting her claim that the applicant had put Vaseline on her. In defence, it was argued that it had not been proved that the knickers in question were the pair worn by the complainant at the material time. However, the Assize Court was satisfied from the evidence that the knickers on which Vaseline had been found were those of the complainant.

It appears that the defence did not argue before the Assize Court that the non-discovery of the knickers had the effect of depriving the applicant of a fair trial.

The Assize Court dismissed the defence argument that the absence of the applicant’s DNA on the knickers or swabs taken from the complainant’s vagina was inconsistent with the complainant’s version of events. In this respect the court relied on the expert evidence of the prosecution to the effect that the existence of a possibility of penetration having taken place without traces of DNA being found could not be excluded in the circumstances of the case.

Regarding the complaint of the defence that the police and the prosecuting authorities did not perform their duties impartially, the Assize Court stated that the case had to be determined on the basis of the evidence and that “to the extent that any actions of the police or other persons involved in the case concerned the evidence, we do not find anything which could affect our view regarding the credibility of [the complainant]”. The Supreme Court also dismissed this complaint, on appeal, as being unsubstantiated.

The Assize Court further held that the allegation of the applicant that he had had an unfair trial because the prosecution failed to disclose to the defence a number of statements made by the complainant to the police which might have been relevant to the defence, was not substantiated, given the fact that this matter was neither pursued nor clarified during the cross-examination of the complainant.

As regards the defence argument that, soon after the incident, the complainant’s lawyer addressed a letter to the Attorney General’s Office and the Head of Police in which no clear reference to the offence of rape was made, the court found this to be “fully understandable in view of the circumstances, the letter itself explaining the reason for the lack of certainty as to whether there was rape or only attempted rape in view of the fact that the difference between the two is, as was meant to be, of legal significance and many times this is not easy to define”.

The applicant appealed against his conviction to the Supreme Court.

On 18 January 2000 the Supreme Court dismissed the appeal and confirmed the applicant’s conviction.

B. Relevant domestic law and practice

Sections 7(1) and 175 of the Criminal Procedure Law Cap. 155 provide as follows:

Section 7(1)

“When the accused pleads “not guilty” then, through a written request to the prosecution, he is entitled to be supplied with copies of the written statements and the documents which were obtained during the investigation of the criminal offence with which he is charged.”

Section 175

“At every preliminary enquiry and at every trial, the court shall have the discretionary power to regulate the course of the proceedings in any way which may appear desirable and which is not inconsistent with the provisions of this Law.”

Where the offence is of a sexual nature, the evidence of the complainant must be corroborated. By virtue of an express statutory provision ‑ Section 10 of the Evidence Law, Cap. 9 ‑ a first complaint constitutes corroborative evidence per se.

COMPLAINTS

The applicant alleges a violation of Article 6 §§ 1 and 3(b) of the Convention. He complains about the manner in which the investigation was carried out and the fact that the Assize Court and the Supreme Court disregarded his complaint of its unfairness. He also claims that he was deprived of an opportunity to subject a major piece of evidence to scientific examination, namely the complainant’s knickers, which were in the possession of the prosecution and were pivotal to his conviction. He further submits that he could not proceed with such an examination once the knickers were produced in court as an exhibit because the Criminal Procedure Law, as interpreted by the Supreme Court, does not permit it. He also complains that he was deprived of a fair trial because a number of statements made by the complainant to the police were not disclosed to the defence. Finally, he complains that the national courts did not give any weight to the absence of the applicant’s DNA in the swabs taken from the complainant or her knickers; nor did they take into account her initial statement, according to which she was not certain whether rape had in fact taken place.

THE LAW

The applicant complains that he was deprived of a fair trial because of the following circumstances:

(a) after the applicant was “charged” and after the intervention of the complainant’s lawyer (a person with strong political connections), the case was assigned to a new investigating police officer who proceeded to a search of the applicant’s premises without a search warrant and in the presence of only the complainant’s lawyer;

(b) the Supreme Court, by its ruling of 24 September 1998, deprived him of the opportunity to submit an important piece of evidence, i.e. the complainant’s knickers, which were in the possession of the prosecution, to a scientific examination by his own experts;

(c) the Supreme Court misinterpreted the Criminal Procedure Law Cap.155, by deciding that the applicant should have asked the Assize Court to hand over the knickers for scientific examination, although this is not possible under Cap.155;

(d) he was deprived of a fair trial because a number of statements made by the complainant to the police were not disclosed to the defence;

(e) the competent courts failed to appreciate the exonerating evidence of fact which was presented at the trial, such as the absence of the applicant’s DNA on the complainant’s knickers and her first statement that she was uncertain whether she had in fact been raped.

The applicant alleges a violation of Article 6 §§ 1 and 3 (b) of the Convention, which provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights: ...

(b) to have adequate time and facilities for the preparation of his defence; ...”

Firstly, the Government submit that the application is inadmissible on the ground that it amounts to an abuse of process contrary to Article 35 §§ 2 and 3 in fine of the Convention. The factual basis of the present application is the same as application no. 54528/00 introduced by the same applicant and now pending before the Court. The Government maintain that the applicant’s complaint of an unfair hearing has already been “submitted to another procedure of international investigation” within the meaning of Article 35 § 2 (b). Further arguments under the Convention do not fall within the notion of “relevant new information” as specified in that provision. Moreover, the applicant has so far been allowed to burden an already overloaded international Court with unnecessary work, thus obstructing its efficient functioning. In the circumstances of the present case, the Court has to go through numerous and complicated facts twice. Policy considerations of paramount importance demand the discouragement of such practices.

The applicant submits that the objection under Article 35 § 2 is fraught with legal error, because the terms of “another procedure of international investigation” may only mean a procedure before an international body other than the Court. As to the allegation of abuse of process under Article 35 § 3, the applicant stresses that the sole reason for bringing two separate applications instead of one was to comply with the six-month requirement in respect of the decision of the Supreme Court of 19 July 1999.

The Court notes that the two applications lodged by the applicant do not have exactly the same factual background and the alleged violations of the Convention are not the same. In application no. 54528/00 the applicant complained of the lack of impartiality of two judges of the Supreme Court who participated in the proceedings and the final decision was that of 19 July 1999 when the Supreme Court dismissed the applicant’s petition to vacate a previous judgment of the Supreme Court. In the present application the applicant complains that he was deprived of a fair trial because of certain specific circumstances other than the alleged impartiality of the two judges. The Court cannot therefore consider that the applicant has abused of the right of individual petition and accordingly dismiss the Government’s objections.

As regards the merits of the complaints under points (a), (c) (d) and (e) above, the Court notes that they are not substantiated or relate rather to the assessment of the evidence and the manner in which the domestic courts interpreted and applied the relevant domestic legislation. In particular, there is no evidence whatsoever in the case-file in support of the complaint under point (a). Moreover, it appears from the judgments of both the Assize Court and the Supreme Court that the applicant did not pursue this complaint either as a ground of unfair trial or as a ground of appeal. Accordingly, the Court cannot examine these complaints in the absence of any evidence of arbitrariness ( Garcia Ruiz v. Spain [GC] no.30544/96, CEDH 1999-I, § 28).

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As regards the merits of the complaint under point b), the Government submit that there is no dispute that, in the present case, there has been full compliance with the duty of disclosure imposed upon the prosecution by Section 7(1) of Cap 155. The documents with which the defence was supplied included the written report of the forensic expert who testified on behalf of the prosecution. However, the case-law of the Court, invoked by the applicant in support of his allegations, refers only to an obligation to allow the accused to acquaint himself with the content of the evidence, not to come into possession of the actual evidential material itself. Equality of arms means equality “as far as possible”. The defence is entitled to have, before the trial, knowledge of the results of the whole of the investigation and a full picture of the prosecution case. The prosecution is burdened with the task of ensuring that the evidence is preserved and protected from any interference up until the moment it is placed in the custody and control of the trial court.

The Government claim that the applicant’s allegation that he could not submit the knickers to scientific examination by his own expert is not supported by the facts of the case. As of 29 October 1998, when the knickers were produced in court, the defence could have applied for a court order allowing for their scientific examination by a defence expert. However, the defence failed to do so although, upon their request, the court granted an order allowing their photographer to handle the negatives of some pictures taken by the police.

The issue which was determined by the Supreme Court in its judgment of 24 September 1998 was whether the Assize Court had jurisdiction later to order the prosecution to hand over the knickers to the defence before the hearing and while the item was still in the prosecution’s possession. The applicant does not give any concrete and specific reasons as to the actual manner in which his defence would have been prejudiced if the forensic examination by his defence team had been carried out after 29 October 1998 and not at the time they had asked for it.

Any discussion as to the effect of the non-examination of the knickers by a defence expert is theoretical and academic because the applicant has wholly failed to establish a causal link between such non-examination and any actual prejudice to his defence. The expert evidence which resulted from the examination of the knickers was not decisive for the conviction of the applicant. The Assize Court’s principal finding was that the evidence of the complainant was credible and reliable, and corroborated by the evidence of two other witnesses, who were also considered credible and reliable.

In any event, the expert who testified for the prosecution stated that she had “washed” the pants in certain chemical liquids, thereby extracting all the Vaseline from them. Therefore, the Government wonder what would have been the purpose of any scientific examination of the knickers by the defence thereafter.

The Government conclude that, in the circumstances of the case, the applicant has failed to indicate in what specific manner a second forensic examination of the knickers could have assisted his case.

The applicant submits that no rational distinction may be drawn between acquainting oneself with the material in the hands of the prosecution and being in actual possession of that material. The disclosure of a prosecution expert statement does not afford the defence with an opportunity to acquaint itself with the material. The Government appear to limit the duty of disclosure to statements of prosecution witnesses, thereby excluding from the ambit of the Convention the disclosure of tangible objects, and thus effectively denying the right to equality of arms. In criminal cases, objects are often used as evidence to incriminate the accused. The opportunity to subject such evidence to scientific examination prior to the hearing is of paramount importance to the accused, as it may help him to exonerate himself. As to the Government’s suggestion that equality of arms only extends “as far as possible”, this contradicts the principle of equality itself. One may only accept a derogation from the duty of disclosure after examining the competing interests, thereby adopting measures which are strictly necessary. These measures must in turn be made subject to strict judicial control and cannot be left to the discretion of the prosecution.

The applicant further alleges that the decision of the Supreme Court of 24 September 1998 recognised a right of equality of arms for the prosecution vis-à-vis the defence, which in effect reversed the protection afforded by the Convention to the accused. Instead of holding that it was the duty of the prosecution to disclose the material to the defence, the Supreme Court decided that such disclosure would violate the prosecution’s right of equality of arms vis-à-vis the accused. It is difficult to accept that the examination of the knickers by the defence would have jeopardised the prosecution’s case, since it would have been able to call its expert to give evidence. Should the pants have been destroyed during the defence’s examination, it would still have been able to bring oral evidence relating to the incriminating substance and prove its case.

The applicant recalls that the Supreme Court’s decision was fully binding on the Assize Court in the absence of an express provision in the Criminal Procedure Law. Even if the court had the power to order disclosure once the material came under its control, it could not have done so before the completion of the evidence of the prosecution witnesses, which took place on 5 February 1999. As for the alleged transmission of the photographic negatives to the defence, the applicant claims that this never took place. As the prosecution objected, the court ordered the printing of the negatives in the presence of the registrar and a representative of the Republic.

Finally, the applicant submits that, according to the Court’s case-law, namely the judgments of Pisano v. Italy of 27 July 2000 (no. 36732/97), and Brennan v. the United Kingdom of 16 October 2001 (no. 39846/98, ECHR 2001-X), he does not need to prove how his position would have improved at the trial had an examination of the knickers taken place. As was made clear by the Assize Court, the finding of Vaseline on the pants was treated as a key element corroborating the credibility of the complainant. The evidential significance of the Vaseline became of critical importance for the trial court, in view of the absence of DNA in swabs taken from the complainant’s vagina, and the absence of Vaseline on the gauze with which the complainant’s vagina had been wiped by the medical practitioner who had examined her some time after the alleged offence had taken place.

The applicant adds that it is sufficient for him to show that the examination of the knickers was of potential relevance to his defence and that its denial could have irretrievably prejudiced his defence. Regarding the “washing” of Vaseline from the knickers, the applicant submits that this was the evidence of the prosecution’s expert. However, the applicant had raised the possibility of there being a substance in the material out of which the knickers were made which was of the same chemical composition as Vaseline, and the possibility of a finding, after examination of the knickers, that Vaseline had never existed on them.

The Court recognises that under certain circumstances the principle of equality of arms creates a positive obligation on Contracting States to give to an accused person the opportunity to carry out his own expert tests, on equal terms with the prosecution, in connection with objects that may be used as evidence against him by the prosecution. Such an obligation, however, presupposes that the facts of the case are such as to make it physically possible to carry out parallel tests on the same exhibit, and that the results of any test made by the accused may have a bearing on the relevant issues in the case. In any event, even if there has been a failure to fulfil such an obligation in a particular case, that of itself cannot constitute an automatic breach of the right to a fair trial. The Court reiterates that, in determining whether there has been unfairness, the proceedings must be considered as a whole.

The Court does not share the approach of the Supreme Court, quoted above, in refusing, through its interim jugment , to endorse the pre-trial discovery order of the Assize Court. In particular, the Court does not agree that such an order would be contrary to the principle of equality of arms vis-à-vis the prosecution. However, the Court agrees with the view expressed by the Supreme Court in the same judgment that, in the absence of evidence at the pre-trial stage, there could not be a judicial determination of the relevance of the material to the defence case. The Court does not however consider it necessary to pursue the matter further because it anyway finds the complaint manifestly ill-founded for the following reasons:

The question now before the Court is whether, in the circumstances of the present case, the applicant’s trial as a whole was unfair. The order of the Assize Court for the delivery of the complainant’s knickers to the applicant was issued before the commencement of the trial. At that time there was no concrete evidence before the Cyprus courts as to the relevance to the case of an independent examination of the knickers by the defence.

The Court notes that, even if the applicant does not have to show actual prejudice to the defence due to the non-examination of the knickers, he still has to show the relevance of such an examination to the case against him (see mutatis mutandis Jespers v. Belgium 27 DR, p. 61). However the applicant has failed to do so. He has also failed to substantiate his argument that such an examination was of potential relevance to his defence because of a possibility that there was a substance in the material out of which the knickers were made which was of the same or similar composition to Vaseline, or for any other reason specifically invoked by the applicant.

The Court has reviewed the evidence which was relied on by the Assize Court in convicting the applicant and which was produced in court. According to the case-file, by the time the applicant sought discovery of the complainant’s knickers for a scientific expertise as to the presence or not of Vaseline, the pants had already been “washed” by the prosecution expert in certain chemical liquids, with the result that all the Vaseline had been removed from them. The Vaseline so extracted was separately preserved by that expert in a tube which was produced as an exhibit before the Court. Consequently such an expertise would have been ineffective. Therefore there was no possibility of contradicting, through an examination of the knickers, the evidence of the prosecution expert as to the presence of Vaseline on them.

The Court also takes into account the following elements: that the applicant was interrogated by the police on the day of the offence for which he was convicted, i.e. 22 August 1996; that he was then acting on legal advice; that the knickers were taken by the police that same day and were delivered on 29 August 1996 to the Government forensic expert but, for more than a year thereafter, no request for an examination by a defence expert of any object in the hands of the police was made.

The Court notes that the prosecution supplied the defence before the trial with the written report of the forensic expert. This expert gave oral testimony on behalf of the prosecution and was cross-examined by the applicant’s counsel. In this respect the Court observes that the sole argument put by the defence was that the knickers examined by the prosecution expert were not those of the complainant. In any event, the possibility of there being a substance similar to Vaseline in the material out of which the knickers were made was excluded by this expert and no evidence to the contrary was relied on by the applicant.

The Court also notes that the applicant did not complain of unfairness before the Assize Court on this particular discovery point.

Finally, the Court gives special weight to the fact that the conviction of the applicant was mainly based on the oral testimony of the complainant, who was described by the Assize Court as “completely credible”. The presence of Vaseline on the complainant’s knickers was only one of three subsidiary elements of evidence corroborating the complainant’s testimony. The other elements consisted of the evidence of two witnesses to whom the complainant made her first complaint soon after the incident of rape for which the applicant was found guilty. The Assize Court also accepted the evidence of these witnesses as credible. (According to Cyprus legislation, the first complaint is evidence of the truth of the matters stated therein.)

Having regard to the above considerations, the Court concludes that the circumstances of the case do not disclose any appearance of a breach of the fair hearing guarantees of Article 6 of the Convention.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President