THIRD SECTION

DECISION

Application no. 60416/14 Hossam YAACOUB against Cyprus

The European Court of Human Rights (Third Section), sitting on 30 April 2019 as a Committee composed of:

Branko Lubarda, President, Dmitry Dedov, Erik Wennerström, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 30 August 2014,

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

1. The applicant, Mr Hossam Yaacoub, is a Swedish national who was born in 1988. He was repres ented before the Court by Mr A. Georghiades, a lawyer practising in Nicosia.

The Cypriot Government (“the Government”) were represented by their Agent, Mr C. Clerides, Attorney-General of the Republic of Cyprus.

The circumstances of the case

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

1. The applicant ’ s arrest, his statements to the police and various investigative steps

3. At approximately 7 a.m. on 7 July 2012, the applicant was arrested in a hotel room in Limassol, Cyprus. The police had obtained an arrest warrant on the basis of intelligence that he was a member of Hezbollah, which was considered to be a criminal or terrorist organisation, that he was in possession of explosives and that he was planning terrorist attacks against Israeli and other foreign targets in Cyprus. When arresting him and also later that day (for details see below), the police seized his camera, mobile telephone, various documents, various amounts of cash in different currencies and his personal belongings.

4. The seized material included, inter alia , a handwritten note and a red notebook. The note said “ARKIA IZ167” (a reference to a scheduled flight from Tel Aviv to Larnaca with Arkia Israeli Airlines). Below the flight number the numbers “18:00” and “3-7” were written. The note also contained the names of two hotels and the numbers “1.18”, “2.14” and “3.10.3”. As for the notebook, it contained a map with a point circled in ink.

5. Following his arrest, the applicant was questioned by and made statements to investigators in the offices of the Criminal Investigation Department (hereinafter “the CID”) in Limassol. He was also heard by a remand judge of the Limassol District Court. Meanwhile, he was held in the Limassol detention centre. He submitted that this was in fact no more than a cell at the Limassol police station and that for most of his time there he had been handcuffed. While there has been no dispute that the cell was equipped with a bed, the Government denied the allegation of handcuffing. The relevant aspects of the applicant ’ s movements and treatment while in detention have been detailed as follows.

6 . Between 12.25 and 5.40 p.m. on the same day, 7 July 2012, the applicant gave a statement in which he did not say anything incriminatory. Between 7 and 7.30 p.m. he attended a search of his hotel room, and a t 8 p.m. he was placed under arrest. He was immediately informed of the reasons for his arrest and his attention was drawn to his rights under the law. In particular, the case file contains a document entitled “Detainees Rights of Communication ...”, setting out the rights of persons who are arrested by the police to communicate with a lawyer, a family member and, in the case of foreigners, with consular authorities. The document bears the applicant ’ s signature along with an acknowledgment that he had taken cognisance of his rights and a statement that he did not wish to exercise them but wished to communicate with his parents.

7. Between 8.10 and 9.00 p.m. on the same day the applicant was subjected to a body search and the items seized in his hotel room were examined. At 9.15 p.m. he was transferred to the detention centre where he spent the night, after having been handed a document containing detailed information about his rights. It included, among other things, information about the right to a lawyer and to legal advice, and the right to remain silent. The applicant signed the document in acknowledgment of having received it in a language that he could understand.

8. At 8.45 a.m. on 8 July 2012 the applicant was brought before a judge, who remanded him in custody for five days. In the course of the hearing he stated his willingness to cooperate with the police. At 10.30 a.m. he was taken back to his cell at the detention centre, where he stayed until about 2.30 p.m. He was then transferred to the offices of the CID for questioning, which took place from 3 to 6.10 p.m. Following the interview, at 6.45 p.m., the applicant spoke on the phone to his mother, in the presence of police officers and an interpreter. At around 6.50 p.m. the applicant was taken back to his cell at the detention centre, where he remained until the following day.

9. At around 9.50 a.m. on 9 July 2012 the applicant was transferred to the offices of the CID, where he was questioned from 10 a.m. to 5 p.m. He said nothing incriminating. Relying on a police log book (ημερολόγιο ενέργειας) , the Government submitted that the applicant had been allowed regular breaks during the interview, he had been given food, soft drinks and coffee, and had been allowed to smoke five or six cigarettes. After the interview he had been transferred back to the detention centre.

10. On 10 July 2012 the applicant was transferred from the detention centre to the offices of the CID for further questioning, which took place between 9.30 a.m. and 4 p.m., in which he repeated his previous submissions. Relying on the police log book, the Government submitted that the applicant had been allowed regular breaks during the interview and had been given food, soft drinks and coffee. At around 4.10 p.m. he had a telephone conversation with an official from the Swedish Embassy in Cyprus and at around 5.35 p.m. he was taken back to the detention centre.

11 . On 11 July 2012 the applicant was transferred to the offices of the CID for further questioning, which took place between 9.55 a.m. and 12.55 p.m. and in which he repeated his previous submissions. At 1. 05 p.m. he was taken back to the detention centre. He remained in his cell until 1.55 p.m., when he was taken back to the offices of the CID. There, with the assistance of an interpreter, he made statements from 3 to 7 p.m. and again from 11.10 p.m. to 1.40 a.m. the following day. The records, a copy of which has been submitted by the Government, indicate that, in the course of making those statements, the applicant was provided with refreshment. After those interviews, he was taken back to his cell at the detention centre.

12. At 7.35 a.m. on 12 July 2012 the applicant was transferred to the offices of the CID, where he was questioned from 8.10 a.m. to 2.30 p.m., in substance repeating his previous submissions. Relying on the police records, the Government submitted that the applicant had been allowed regular breaks during the questioning and had been given food, soft drinks and coffee, and allowed to smoke cigarettes. At around 3 p.m. he phoned an official from the Swedish Embassy and also the Ambassador of Lebanon in Cyprus. At 3.15 p.m. the applicant was taken back to the detention centre and at 4.05 p.m. he was transferred back to the CID for questioning, which took place between 4.10 and 4.45 p.m. At 4.50 p.m. he was taken back to his cell, where he remained until the next morning. At an unspecified time in the course of the day on 12 July, the applicant expressed the wish to contact a lawyer and was allowed to do so.

13. At around 8.55 a.m. on 13 July 2012 the applicant was brought before a judge, who remanded him in custody for another seven days. This time he was represented by counsel, and again stated his willingness to cooperate with the authorities. After the hearing, at 10.30 a.m., he returned to the detention centre. At 11.30 a.m. he was again transferred to the CID for questioning, which lasted from 12.30 until 10 p.m. He confessed to being a member of Hezbollah and to having visited Cyprus four times in the past in order to create a cover story for the purposes of the organisation. He explained the meaning of the red notebook and his notes, as well as the connection between the words he had written and the numbers of the buses carrying passengers of the Arkia Israeli Airlines flight. The respective log in the police records indicates that it was the applicant who, following his oral confession, requested that his statement be also made in writing. In their observations, the Government claimed that it had been the investigating officers who had decided that there was a need to take a written statement from the applicant without delay.

14. Subsequently, between 12.45 and 3.15 a.m. of the night from 13 to 14 July 2012, with the assistance of an interpreter, the applicant gave a statement. The transcript, a copy of which has been submitted by the Government, indicates that, in the course of the taking of that statement by the police, the applicant was provided with refreshment. After having given the statement, he was taken back to the detention centre, where he stayed in his cell until noon on 14 July 2012.

15 . Between 12.15 and 2 p.m. and again between 5.20 and 6.30 p.m. on the same day, the applicant was questioned by the CID. In between the two interviews, namely from 2.15 to 5.10 p.m., he was held in his cell at the detention centre.

16. At around 10.30 a.m. on 15 July 2012 the applicant was transferred to the CID offices, where he was questioned from 10.45 a.m. to 1.30 p.m. At 1.40 p.m. he was taken back to the detention centre, where he remained in his cell until 2.30 p.m., when he was transferred again to the CID for questioning that lasted until 7 p.m. According to the police records, before the commencement of the interview the applicant ’ s attention was drawn to his rights under the law and he confirmed in writing that he understood. Furthermore, the record shows that he was allowed to rest and was offered food, coffee and cigarettes. On completion of the interview, at 7.15 p.m., the applicant was transferred to his cell at the detention centre, where he remained until the next day.

17 . According to the Government, at around 9.45 a.m. on 16 July 2012 the applicant was transferred to the CID, where he was questioned from 10.05 a.m. to 3 p.m. At 3.25 p.m. he was taken to the detention centre and, at 5.50 p.m., back to the CID, where he was questioned from 6.10 to 8.05 p.m. According to the police record, the two interviews were conducted with breaks and the applicant was offered food, coffee and cigarettes. Subsequently, between 8.40 and 11 p.m., the applicant, assisted by an interpreter, gave a statement. According to the Government, at about 11.20 p.m. he was taken back to the detention centre where he spent the night in his cell.

18. According to the Government, at around 9.10 a.m. on 17 July 2012 the applicant was transferred to the CID, where he was questioned from 9.30 to 11.25 a.m. There were several breaks during the interview and the applicant was offered food, coffee and cigarettes. At 11.50 a.m. he returned to the detention centre and at 1.15 p.m. was taken back to the CID, where he was questioned from 1.40 to 8.05 p.m. A t around 8.25 p.m. he was returned to his cell.

19. On 18 July 2012 the applicant was questioned from 1.35 to 5 p.m. and from 7.10 to 11.30 p.m. Between the tw o interviews, that is from 5.15 to 6.50 p.m., he was held in his cell at the detention centre. He was eventually returned to his cell at 12.35 a.m.

20. On 19 July 2012 the applicant was questioned from 4.50 to 6.35 p.m., with a break during which he was offered coffee and cigarettes. At 6.50 p.m. he was transferred to the detention centre, where he remained until the next morning.

21. On 20 July 2012 the applicant appeared before a judge, who remanded him in custody for another seven days. He was again assisted by counsel and repeated that he was willing to cooperate with the authorities.

22. At around 1.05 p.m. on 21 July 2012 the applicant was taken from the detention centre to the CID, where he was interviewed from 1.10 to 1.55 p.m. Towards the end of the interview, he had a telephone conversation with his father. At around 2 p.m. he returned to the detention centre.

23 . At 10.10 a.m. on 22 July 2012 the applicant was transferred to the CID where, between 10.30 a.m. and 1.30 p.m., he gave a statement. At 2.20 p.m. he was taken back to the detention centre.

24. Between 4 and 5 p.m. on 23 July 2012 questions submitted by the Swedish authorities were put to the applicant. At 5 p.m. he spoke on the phone with his father. At around 5.30 p.m. on 24 July 2012 he had a telephone conversation with an official from the Swedish Embassy.

2. Indictments against the applicant

25. On 12 September 2012 indictments were filed against the applicant to stand trial before the Assize Court on charges of what would ultimately be eight counts, including participation in a criminal organisation, conspiracy to commit grievous bodily harm and to kidnap Israeli citizens, transfer of explosives and firearms, and money laundering.

3. Voir dire proceedings and the Assize Court ’ s ruling on the admissibility of the applicant ’ s statements

26 . In the course of his trial, the applicant challenged the admissibility of four of his six statements to the police, in particular those made from 11.10 to 1.40 p.m. on 11-12 July (see paragraph 11 above), and on 14, 16 and 22 July 2012 (see paragraphs 15, 17 and 23 above). A voir dire (“trial within a trial” ) was held to determine the issue.

27 . The applicant gave evidence during the voir dire proceedings complaining, in so far as relevant, that when he had first appeared before the Limassol District Court on 8 July, he had not been offered counsel. He alleged that he had not been informed of his right to counsel until approximately 11 or 12 July; that he had not been informed of his right to remain silent during the interviews; that the interviews had been conducted in the absence of an interpreter; and that the interviews had been tiring. He had often complained about the latter, but had nevertheless not been allowed to rest, and the interviewing officers had threatened and pressured him to tell them what they wanted to hear. In addition, at the end of the voir dire and during his oral pleadings, the applicant ’ s lawyer complained that, contrary to the applicable rules of procedure, the interrogating officers had failed to take down their questions and the applicant ’ s answers in the oral interviews.

28. The prosecution called as a witness only one of the two detectives who had interviewed the applicant. The detective stated, inter alia, that the interviews had not been video recorded but he had kept rough notes of the applicant ’ s answers (but not the questions posed), which he had later entered in the police log book. Moreover, he testified that he and his colleagues had continued to interview the applicant because his answers had not seemed credible and he had failed to provide reasoned explanations for his actions. Moreover, the police had suspected that the applicant ’ s actions had been part of a plan to bring down an aeroplane. He further stated that during his detention, the applicant had been in contact with members of his family, officials from the Swedish and Lebanese embassies, and his lawyer. An official from the Swedish embassy had also been present at the first remand hearing of 8 July 2012. Hence, according to the detective, the applicant could have made his allegations of ill-treatment at any time. During cross-examination the detective denied having made any promises to the applicant and stated that he had only explained the law and the procedure to him.

When asked why some of the interviews had taken place at night and had lasted more than four hours, the officer confirmed that two of the statements had been taken after midnight and submitted that it had been considered necessary to take them at those hours because a little earlier the applicant had orally confessed to what would then be reflected in his statements.

29 . On 11 December 2012 the Assize Court gave a written ruling that the applicant ’ s statements to the police could be admitted in evidence. The court found that prior to the Assize Court proceedings the applicant had failed to make any complaint as regards ill-treatment. Nor had he stated that he had been subjected to intimidation at the pre-trial stage of the proceedings. The applicant had expressed his intention to cooperate with the police at all three of his appearances before the District Court. He had not questioned the way in which the law had been brought to his attention by the officers. Although his interviews had been lengthy and some of them had been held after midnight, there had been nothing suspicious about their length: the applicant had been explaining the evidence in the case with the aid of an interpreter. The court concluded that it was satisfied beyond reasonable doubt that the statements had been made freely and voluntarily.

As regards the interviewing officers ’ compliance with their duty to take down their questions and the applicant ’ s answers in his oral interviews in accordance with the rules of procedure, the Assize Court noted first of all that the applicant ’ s complaint had not been submitted in due time, that is, it had not been submitted to detective C.M. during his cross-examination (see paragraph 28 above). He had not, therefore, been afforded the opportunity to reply as it had been raised by the applicant ’ s lawyer only during the oral pleadings (see paragraph 27 above). Nevertheless, the court examined the matter as much as possible. It noted the interviewing officers ’ explanations for the applicant ’ s lengthy oral interviews; that they had had an overall structure for guiding the interview which did not necessitate the taking down of all detailed questions that the officers had nevertheless kept rough notes of the applicant ’ s answers; that they had used those notes to produce a detailed record in the log book; and that in any event the applicant ’ s oral submissions had then been reflected in the transcript of his statements. The court also noted that the applicant had not directly challenged his oral interviews. In view of the whole presentation of the structure of the interviews, the Assize Court found nothing in the way the interviews had been conducted to compromise the admissibly as evidence of the contested statements.

4. The trial

(a) Evidence for the prosecution

30. In addition to the applicant ’ s statements, the prosecution relied, inter alia , on: (i) the applicant ’ s red notebook and other notes; (ii) the evidence of hotel employees and other individuals the applicant had met during his visits to Cyprus; (iii) the evidence of an accountant who testified that he had been contacted via email by a Lebanese person, using a different name from that of the applicant, who wished to acquire information on registering a company in Cyprus; (iv) the evidence of an employee of a company with whom the applicant had placed an order for the export of beverages; (v) witnesses who testified that Israeli citizens stayed in the hotels mentioned in the applicant ’ s diary; (vi) the evidence of the two bus drivers who had driven the buses boarded by the passengers of flight IZ167; (vii) CCTV footage of the applicant at Larnaca Airport on 3 July and 6/7 July 2012; and (viii) the evidence of an expert witness on Hezbollah.

31. Moreover, the court took evidence from two interpreters involved in the taking of the contested statements from the applicant. One of them (K.T.), who was present at the taking of the applicant ’ s statements of 7, 11 (from 3 to 7 p.m.), 14 and 22 July 2012 submitted in cross-examination that during those interviews the applicant had not seemed, nor had he claimed to be, tired. He had been calm and had answered the questions put to him. The interpreter refuted a suggestion that one of the investigating offices had coerced the applicant, submitting that he would not have assisted in obtaining any statement that someone was unwilling to make. The other interpreter (N.S.) who had assisted the applicant during the interviews of 11-12 July and 16 July 2012, submitted that he did not remember the applicant complaining of being tired. He remarked that not many questions had been posed to the applicant and that his statement had mostly been a narrative.

(b) Evidence for the defence

32. The applicant was the main witness for the defence. Admitting that he was a member of Hezbollah, the applicant ’ s defence was that it was not a criminal organisation but a political party and that, in any case, he could not reasonably have known that his missions had been part of an attempt to target Israelis in Cyprus.

33. In that respect, relying on Hezbollah ’ s new (November 2009) manifesto, the applicant stated that, in contrast to the expert witness ’ s submissions, the ideology of the organisation was no longer the elimination of Israel. It was a multifaceted party in Lebanon which engaged in social, political and military activities, and owned schools, hospitals and charities.

34. The applicant acknowledged having been sent on missions for Hezbollah to various countries. With regard to his missions to Cyprus, he explained that their purpose included checking whether a designated area was monitored by security; buying SIM cards and handing them to his bosses; locating restaurants serving kosher food; and so on. However, he had never asked for, and had not been aware of, the reason for those missions.

35. The applicant repeated his allegation that he had been subjected to threats and coercion during his interviews at the police station. He had also been tricked into sketching various areas in Lebanon and the areas around the hospital and hotel in Limassol. His boss had never requested such information as he already had detailed and accurate maps for those areas.

36. The applicant also stated that he had never read the statements he had given to the police; he had merely signed them based on the detective ’ s promises and because he had been so tired that he had been prepared to go along with whatever the police said as long as they allowed him to sleep. On that basis, he challenged the admissibility as evidence of the four statements taken between 11.10 p.m. and 1.40 a.m. on 11-12 July and on 14, 16 and 22 July 2012.

(c) The Assize Court ’ s findings

37. On 21 March 2013 the Assize Court found the applicant guilty on five of the eight counts in the indictment, namely two counts of participating in a criminal organisation, two counts of participating in a criminal organisation which he ought reasonably to have known was connected to the commission of crimes, and one count of money laundering.

38. In reaching its decision the Assize Court placed particular emphasis on the applicant ’ s statements, which it found to be corroborated by the other evidence heard at trial.

39. The court found that Hezbollah fell within the description of a “criminal organisation” as set out in section 63B(3) of the Criminal Code. In reaching that conclusion, it relied in part on the expert witness ’ s report setting out the organisation ’ s hostility to Israel.

40. The court held that the applicant had not provided an innocent explanation for his actions. He had willingly turned a blind eye to the fact that his missions had involved the secretive and systematic surveillance of Israeli targets, and he ought to have reasonably known that those actions could have been linked to the commission of specific criminal offences.

41. The court rejected the applicant ’ s submissions that his trial had been unfair owing to the fact that he had not received the expert witness report in time: he had been informed at the start of the trial that a witness would be called to testify as to the structure of Hezbollah.

42. On 28 March 2013, the Assize Court imposed concurrent sentences of four years ’ imprisonment for counts four and five of the indictment (participation in a criminal organisation, which the applicant ought to have reasonably known was connected to the commission of crimes). Given the similarity of the remaining counts to counts four and five, no further sentences were imposed in respect of them.

(d) Appeal to the Supreme Court

43. On 5 April 2013 the applicant appealed against his conviction to the Supreme Court. He submitted, inter alia , that the Assize Court had erred in concluding that his statements had been voluntary, because (i) the court had not taken into account the fact that the police had not kept records of the interviews; and (ii) the court had failed to take into consideration the length of the interviews and statements, some of which had been taken after midnight. The court had also erred in concluding that the prosecution ’ s failure to provide the expert report at an earlier stage had not made the trial unfair.

44. On 19 March 2013 the Supreme Court dismissed the applicant ’ s appeal. As to the admissibility of his statements as evidence, the court limited itself to finding that an unrelated aspect of the case was not enough to question the Assize Court ’ s conclusion that the applicant ’ s statements had been voluntary.

(e) Subsequent developments

45. In November 2014 the applicant was released after having served two years and five months of his sentence.

COMPLAINTS

46. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment in that some of the six contested statements, which had been preceded by interrogations, had been taken at night; those interrogations and the ensuing taking of statements had been excessively long, strenuous and oppressive; and in the course of them he had not been allowed to rest or sleep, despite his entreaties.

47. The applicant also complained that he had given the six contested statements involuntarily. In the interrogation that had preceded them, no record of the questions and answers had been kept, and he had not been advised of his rights.

48. Lastly, relying on various provisions of Article 6 of the Convention, the applicant complained that (i) the prosecution had failed to provide him in good time with the expert witness ’ s report; (ii) they had failed to submit to the courts and to the defence all the material that they had made available to the expert witness; and (iii) their amendment of his indictment had been arbitrary and unlawful.

THE LAW

A. Alleged violation of Article 3 of the Convention

49. The applicant alleged that in the course of the taking of the contested statements and the preceding interrogations he had been subjected to inhuman and degrading treatment prohibited by Article 3 of the Convention, which reads as follows:

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

50. The Government contended that the applicant had been treated humanely at all times. The number and length of the interviews of themselves were of no direct relevance. They had been necessary and proportionate in view of the scope and seriousness of the offences under investigation, as well as the applicant ’ s answers to the questions posed. His treatment had not gone beyond the inevitable inconvenience and discomfort connected with the given form of legitimate treatment.

In particular, relying on the police log book and other records, they submitted that the applicant ’ s interviews had been conducted with frequent and regular breaks during which he had been given enough time to rest and had been offered food, drinks and cigarettes. He had been given sufficient time to sleep each time he had been taken back to his cell at the detention centre. As regards the two statements that had been taken after midnight, one of the detectives involved in questioning the applicant had explained before the Assize Court that this had been so because, for the purposes of the investigation, it had been considered necessary to take the applicant ’ s written statement without any delay each time he had made an oral confession.

No psychological pressure or violence, or any oppression or coercion had been used against the applicant. Contrary to his allegations, he had never complained to the questioning officers during any of the police interviews that he had been tired or wanted to sleep. In that regard, the Government relied on the evidence given before the Assize Court by the interpreter who had been present during four of the six statements to the police contested by the applicant, to the effect that the applicant had neither seemed, and nor had he claimed to be, tired.

In addition, the Government pointed out that in the course of the investigation the applicant had spoken on the phone to representatives of the Swedish and Lebanese embassies (10, 12 and 24 July 2012), his mother (8 July 2012) and father (21 and 23 July 2012). He had also been interviewed by the remand judge (8, 13 and 20 July 2012). However, he had used none of those opportunities to raise the complaints he now asserted before the Court. In the Government ’ s submission, all of the applicant ’ s allegations had been duly examined by the Assize Court, and there was no evidence in the documents submitted to the Court capable of proving to the required standard of proof ­ – “beyond reasonable doubt” – that the applicant had been subjected to any treatment incompatible with Article 3 of the Convention.

51. The applicant reiterated his complaints, in particular that the interrogations had been harsh, because he had not been allowed to rest or sleep, and that he had complained of that to the interrogating officers. He submitted that such treatment had been beyond the inevitable inconvenience of an interrogation and had not corresponded to any legitimate treatment or punishment. In his submission, the fact that he had been provided with food, drinks and cigarettes had no bearing on his complaint. Moreover, the Government had provided the Court with additional police records which had not been presented in the domestic proceedings as exhibits. He suggested that the Government ought instead to have provided the Court only with the log books submitted at the domestic level. As to the telephone conversations he had had with diplomatic representatives and his family, those had provided no real opportunity to raise the issue of ill-treatment because they had been supervised by police officers. Lastly, in his view, the fact that he had not raised the issue during the remand hearings did not prove that he had not been mistreated.

52. The Court, for its part, notes that although the application as such appears primarily to be concerned with the taking of the applicant ’ s six contested statements, these were preceded and followed by interviews which, in the Court ’ s view, had the potential of amplifying the gravity of the treatment the applicant has complained about, taken as a whole.

In particular, the Court notes the applicant ’ s contention that he was treated contrary to Article 3 of the Convention in that his interviews by the police were excessively long, strenuous and oppressive, and in the course of them he was not allowed to rest or sleep, despite his entreaties.

53. From the evidentiary point of view, the Court notes that the applicant has offered little in addition to his allegations and the uncontested time-frame of his interviews and the taking of statements. In particular, the Court notes that there has been no medical or other evidence attesting to the applicant ’ s condition during those interviews and statements and its follow-up or consequences. From that perspective, the Court notes specifically that at the relevant time the applicant was in direct or telephone contact with a number of officials, as well as private persons, who could have directly witnessed his condition and to whom he could at least arguably have conveyed his complaints. As to the interpreters who were present during the statements, the Court notes that they did not participate in the preceding interviews. Nevertheless, the proximity and sequence of the statements and interviews makes any observations on the part of the interpreters with reference to the taking of statements potentially relevant also to the interviews. However, not even the interpreters have produced anything to support the applicant ’ s contentions.

54. In the context of the assessment of whether the applicant ’ s allegations of ill-treatment have been made out, the Court considers it relevant that the applicant has not argued, even at the domestic level, that he lacked access to information or material in the possession of the State or any other third party, and had therefore been unable to establish his factual allegations.

55. On the other hand, the Government have completed the facts concerning the course of the applicant ’ s deprivation of liberty and the way in which he had been treated. In particular, they have provided a framework schedule of the time he spent either in his cell or at the CID offices, without giving more details. The Court notes in this respect that the police log books did not state where in the CID offices the applicant had been interviewed and that he merely stated in the domestic proceedings that he had been transferred between rooms within the CID offices. In the absence of any record of his transfers within the CID, the Court, not being a first-instance tribunal, finds it difficult to assess his allegations.

The schedule provided to the Court gives a prima facie indication that between his interviews and the taking of statements, the applicant did have time to rest and sleep in his cell, which was furnished with a bed. Moreover, his allegations of handcuffing have remained completely unsubstantiated and a relatively detailed account was submitted of the course of the statement taking, indicating that there had been breaks and the applicant had been provided with refreshment. Furthermore, the Government argued that the two instances where statements were taken from the applicant late at night had been prompted by worrying admissions he had made during the preceding interviews. In view of the gravity of the offences of which he was suspected, those admissions had given rise to a need to put them on record without delay. The Court does not find that explanation unreasonable or arbitrary.

56. Against this background, the Court cannot but find that the circumstances under which the applicant was detained and interviewed were not such as to reveal, to the applicable standard of proof of “beyond reasonable doubt”, that he had been subjected to suffering or humiliation above the threshold of Article 3 of the Convention and beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see Jalloh v. Germany [GC], no. 54810/00, §§ 67 and 68, ECHR 2006 ‑ IX, with further references).

57. The Court is aware that, even in the absence of a direct physical assault, a method of interrogation may breach the guarantees of the Article in question (see, for example, Ireland v. the United Kingdom , 18 January 1978, §§ 96 and 168, Series A no. 25, and Gäfgen v. Germany [GC], no. 22978/05, §§ 94, 100, 131 and 132, ECHR 2010 ).

58. However, to the extent the present complaint has been substantiated, the Court finds that the material in its possession does not disclose any appearance of a violation of the applicant ’ s rights under Article 3 of the Convention.

Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 6 of the Convention

59. The applicant complained that he had given the six contested statements involuntarily, that in the interrogations that had preceded them no record of the questions and answers had been kept, and that he had not been advised of his rights.

He also complained, specifically under Article 6 of the Convention, that he had been unable to exercise his rights of defence in relation to the report of the expert witness and that his indictment had been amended arbitrarily.

The Court considers it appropriate to examine this entire part of the application under Article 6 of the Convention, the relevant part of which provides:

“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;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

1. The applicant ’ s six statements as evidence at trial

60. The applicant claimed that (i) he had not made the six contested statements voluntarily, (ii) he had not been advised of his rights, and (iii) contrary to the law, in the preceding interrogations no record had been made of the questions and answers.

61. The Government maintained that before every interview, the applicant had been advised about his rights, including the right to remain silent, that he had given his statements freely and voluntarily. The fact that some of them had been given after midnight did not in itself mean that he had been oppressed or compelled to incriminate himself. In their submission, there was no evidence to support the allegation that the lengthy police interviews had reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself.

62. In addition, the Government submitted that the applicant had been duly represented by a lawyer before the domestic courts. He had challenged the admissibly of the evidence in question, and his challenge had been duly examined and dismissed in the voir dire proceedings. As a result, in the Government ’ s view, there was no appearance of a violation of his Article 6 rights.

63 . Moreover, the applicant had been informed of his right to appoint a lawyer at 8.15 p.m. on 7 July 2012, but had not asked for a lawyer until 12 July 2012. He had been allowed to contact a lawyer immediately following his request. His statement made on 7 July 2012 prior to being informed of his right to appoint a lawyer contained nothing incriminatory. He had not challenged the admissibility of that statement as evidence at the domestic level; his objections at the domestic level had been limited to his statements of 11-12, 14, 16 and 22 July 2012.

64. The applicant argued, first, that the objection he had raised at the domestic level – that he had not made his statements voluntarily – had included all of the arguments he had subsequently made before the Court, in particular his objection that he had not been duly advised of his right to appoint a lawyer and to remain silent. According to the applicant, those were the key components of his complaint before the Court.

65. The applicant pointed out that no police log book had been submitted to the Court for 7 July 2012. He had not been informed of his right to appoint a lawyer until 8.05 p.m. of that day. That had, however, been preceded by a long police interview and the taking of statements. The prosecution had failed to cross-examine him on the issue of the police ’ s failure to inform him of his right of access to a lawyer, and the investigators had failed to keep a record of the advice given to him about his rights and of the questions asked and answers given in the course of that interview.

66. As to the applicant ’ s right to legal assistance, the Court notes that the Government have argued that the applicant had not exhausted domestic remedies. However, the Court considers it unnecessary to examine this question because the relevant part of the complaint is in any event inadmissible on other grounds, as specified below.

67. As to the scope of the applicant ’ s complaint, the Court notes that it concerns the six statements he gave to the police after his arrest, in particular those given on 7 July 2012 (see paragraph 6 above), between 3 and 7 p.m. on 11 July 2012 (see paragraph 11 above), from 11.10 p.m. to 1.40 a.m. on 11-12 July 2012 (see paragraph 11 above), and on 14, 16 and 22 July 2012 (see paragraphs 15 , 17 and 23 above). However, at the domestic level, he did not contest the admissibility as evidence of the statements given on 7 July and from 3 to 7 p.m. on 11 July 2012 (see paragraphs 26 and 63 above). Therefore, in respect of those two statements, and leaving aside the fact that they appear not to contain anything incriminatory, the applicant cannot be said to have satisfied the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

68. Accordingly, it remains for the Court to examine the applicant ’ s complaint with reference to the remaining four statements, in particular those given from 11.10 p.m. to 1.40 a.m. on 11 ‑ 12 July 2012, and on 14, 16 and 22 July 2012.

69. As has been found above, any allegation of ill-treatment in the course of the applicant ’ s pre-trial proceedings was not established. The Court therefore considers that it could not have had any impact on the fairness of his trial.

70. Furthermore, as regards the applicant ’ s rights to legal assistance and to remain silent, the Court notes that he was undoubtedly informed of those rights in detail on the evening of 7 July 2012 (see paragraphs 6 and 7 above), that is prior to making the contested statements on 11-12, 14, 16 and 22 July 2012. The fact that he did not avail himself of the latter right and exercised the former only on 12 July 2012 (see paragraph 12 above) is not imputable to the State.

71. As to the applicant ’ s remaining argument that no proper record was kept of the questions posed to him and his answers in the course of the oral interviews that took place before or after he had given the contested statements, the Court reiterates that its duty, pursuant to Article 19 of the Convention, is to ensure observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other authorities, Gäfgen , cited above, § 162, with further references).

72. On the facts of the case, this matter was brought before the Assize Court in the framework of voir dire proceedings, in which the applicant was represented by a lawyer and provided with ample opportunity to state his arguments, to challenge the submissions made by the prosecution, and to submit any evidence and arguments he considered relevant to the outcome. T he Assize Court took into account how the police interviews in issue had been organised as a whole and found that, despite their length, there was nothing to justify excluding the contested statements from the evidence for the purposes of the applicant ’ s trial (see paragraph 29 above). To the extent the argument has been substantiated, the Court does not find this conclusion and reasoning arbitrary or manifestly unreasonable.

73. In these circumstances, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that the admission of the four statements in evidence for the purposes of the applicant ’ s trial and conviction does not disclose any appearance of a violation of his right not to incriminate himself or any other component of the protection afforded to him under Article 6 of the Convention.

Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Remaining alleged violations

74. In addition, the applicant complained that the prosecution had failed to provide him in good time with the expert witness ’ s report; that they had failed to submit to him and the courts all the material that they had submitted to the expert witness; and that they had arbitrarily and unlawfully been allowed to amend his indictment.

75. In the light of all the material in its possession, and in so far as the remaining matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 May 2019 .

Fatoş Aracı Branko Lubarda Deputy Registrar President