ANDRONICOU AND CONSTANTINOU v. CYPRUS
Doc ref: 25052/94 • ECHR ID: 001-45823
Document date: May 23, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 25052/94
Andreas and Paraskevoula Andronicou
and Gregoris and Yiolanda Constantinou
against
Cyprus
REPORT OF THE COMMISSION
(adopted on 23 May 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-156). . . . . . . . . . . . . . . . . . . . .4
A. Introduction
(paras. 17-19). . . . . . . . . . . . . . . . . . .4
B. The early phases of the incident
(paras. 20-48). . . . . . . . . . . . . . . . . . .4
C. The rescue plan
(para. 49). . . . . . . . . . . . . . . . . . . . .8
D. Later phases of the incident
(paras. 50-79). . . . . . . . . . . . . . . . . . .9
E. Armed intervention - Deaths
of Elsie Constantinou and Lefteris Andronicou
(paras. 80-98). . . . . . . . . . . . . . . . . . 14
F. The immediate aftermath
(paras. 99-102) . . . . . . . . . . . . . . . . . 17
G. The Commission of Inquiry
(paras. 103-107). . . . . . . . . . . . . . . . . 17
H. Expert evidence before the Commission of Inquiry
(paras. 108-133). . . . . . . . . . . . . . . . . 18
I. Findings of the Commission of Inquiry
(paras. 134-150). . . . . . . . . . . . . . . . . 23
J. Subsequent Developments
(paras. 151-156). . . . . . . . . . . . . . . . . 26
III. OPINION OF THE COMMISSION
(paras. 157-200) . . . . . . . . . . . . . . . . . . . 28
A. Complaints declared admissible
(para. 157) . . . . . . . . . . . . . . . . . . . 28
B. Points at issue
(para. 158) . . . . . . . . . . . . . . . . . . . 28
C. As regards Article 2 of the Convention
(paras. 159-189). . . . . . . . . . . . . . . . . 28
1. General considerations
(paras. 160-162). . . . . . . . . . . . . . . . . 28
2. The obligation to protect the right to life
by law in Article 2 para. 1
(paras. 163-164). . . . . . . . . . . . . . . . . 30
3. Requirements of Article 2 para. 2
(paras. 165-189). . . . . . . . . . . . . . . . . 30
CONCLUSION
(para. 190) . . . . . . . . . . . . . . . . . . . 34
D. As regards Article 6 para. 1 of the Convention
(paras. 191-197). . . . . . . . . . . . . . . . . 35
CONCLUSION
(para. 198) . . . . . . . . . . . . . . . . . . . 36
E. Recapitulation
(paras. 199-200). . . . . . . . . . . . . . . . . 36
PARTLY CONCURRING AND PARTLY DISSENTING OPINION
BY MR. L. LOUCAIDES . . . . . . . . . . . . . . . . . . . . 37
PARTLY DISSENTING OPINION BY MR. C.L. ROZAKIS . . . . . . . 41
PARTLY DISSENTING OPINION BY MM. C.A. NØRGAARD
AND G. JÖRUNDSSON . . . . . . . . . . . . . . . . . . . . . 42
PARTLY DISSENTING OPINION BY MR. H.G. SCHERMERS . . . . . . 43
PARTLY DISSENTING OPINION BY MM. J.-C. GEUS and C. BÃŽRSAN . 45
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 46
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. All applicants are Cypriot citizens. The first applicant was born
in 1938, he is living in Paphos and is a farmer by profession. The
second applicant was born in 1961, she is living in Paphos and is a
housewife by occupation. The third applicant was born in 1945, he is
living in Limassol and is a carpenter by profession. The fourth was
born in 1947, she is living in Limassol and is a housewife by
occupation. The first two applicants were the father and sister of
Lefteris Andronicou, deceased. The third and fourth applicants were the
parents of Elsie Constantinou, deceased. All applicants were
represented before the Commission by Mr. M. Kyprianou, a barrister
practising in Nicosia, Cyprus.
3. The application is directed against Cyprus. The respondent
Government were represented by their Agent, Mr. A. Markides, the
Attorney General of the Republic of Cyprus.
4. The case concerns the use of lethal force by the security forces
which resulted in the deaths of Lefteris Andronicou and Elsie
Constantinou and the possibility for the families of the deceased to
institute proceedings for damages in this connection. The applicants
invoke Articles 2 and 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 22 August 1994 and registered
on 31 August 1994.
6. On 17 October 1994 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 4 January 1995.
The applicants replied on 13 February 1995. On 20 January 1995, the
Commission granted the applicants legal aid for the presentation of
their case.
8. On 10 April 1995 the Commission decided to hold a hearing of the
parties. The hearing was held on 5 July 1995. The Government were
represented by their Agent, Mr. A. Markides, , Attorney General of the
Republic of Cyprus, Mrs. L. Koursoumba, Senior Counsel in the Law
Office of the Republic of Cyprus, Mrs. T. Polychronidou, Counsel in
the Law Office of the Republic of Cyprus and Mrs. Marianna Santama-
Patsalidou of the Ministry of Justice and Public Order. The applicants
were represented by Mr. M. Kyprianou, Ms. M. Kyrmizi and
Mr. M. Kyprianou, all of them barristers practising in Nicosia, Cyprus.
9. On 5 July 1995 the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 14 September 1995. The Government was invited to
submit a copy of the transcript of the proceedings before the
Commission of Inquiry which examined the case at the domestic level.
The parties were also invited to submit such further information or
observations on the merits as they wished. The Government submitted the
transcript of the proceedings on 21 September 1995. It also submitted
further observations on the merits on 3 November 1995, to which the
applicants replied on 28 November 1995.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
C.L. ROZAKIS
C.A. NØRGAARD
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
E. KONSTANTINOV
A. PERENIC
C. BÎRSAN
13. The text of this Report was adopted on 23 May 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Introduction
17. The events in this case have been surrounded with some
controversy and, although the case has been fully examined at the
domestic level by a Commission of Inquiry, several factual issues are
still in dispute between the parties.
18. The Commission has had the benefit of examining a full transcript
of the proceedings before the Commission of Inquiry. It has also
examined a video recording of the last phase of the incident made by
a journalist on the spot, a set of photographs taken and a video made
by the police after the incident and the report of the state
pathologist. All these pieces of evidence had been at the disposal of
the Commission of Inquiry.
19. The evidence before the Commission as well as the findings of the
Commission of Inquiry are summarised in the section below. Insofar as
there is need to resolve conflicts of evidence in the determination of
issues under the Convention, the Commission's findings appear in its
Opinion (see paras. 157-212).
B. The early phases of the incident
20. Lefteris Andronicou and Elsie Constantinou, at the time thirty-
three and twenty-two years old respectively, were engaged to be
married. On 22 December 1993, when their engagement was announced in
the local press, they were living together in Lefteris Andronicou's
flat, which was situated on the ground floor of a block of flats,
called Trifonos Court, in Chloraka, Paphos.
21. On 24 December 1993 at around 8:30 in the morning, three of
Lefteris Andronicou's neighbours, D. Papapetru, G. Georgiu and
H. Hrisanthu, heard a woman calling for help from inside Lefteris
Andronicou's flat. Initially, they decided not to interfere and
D. Papapetru and G. Georgiu left. However, as the woman continued to
shout "Stop beating me", H. Hrisanthu decided to call A. Trifonos, the
owner of the block of flats, and the third applicant,
Elsie Constantinou's father. At one stage H. Hrisanthu saw a woman
trying to jump from the window and somebody pulling her inside. At
around 10:30 he called the Paphos police station.
22. Two police officers of the minor offences department,
K. Kleanthus and Z. Psathitis, were immediately dispatched.
K. Kleanthus rang Lefteris Andronicou's bell, but did not get an
answer. When he announced that he was a police officer, he heard a
woman calling "Lefteris leave the gun aside; what are you going to do?"
23. The two officers withdrew and called the Paphos police station
on the radio. At that stage D. Papapetru and G. Georgiu returned to the
scene and saw a girl getting out of Lefteris Andronicou's flat and
signalling to them. Then she went in the flat again. They were not in
a position to say whether she returned of her own will or whether
somebody pulled her inside.
24. At around 11:30 I. Hatzipashalis, the deputy head of the Paphos
Criminal Investigations Department (hereinafter C.I.D.), together with
A. Stavrinidis and two other police officers arrived on the scene.
I. Hatzipashalis knocked on the door and spoke with Lefteris
Andronicou, who told him that he had quarrelled with Elsie Constantinou
and that they had beaten each other. He also heard Elsie Constantinou
asking to be let out. Then he heard Elsie Constantinou asking Lefteris
Andronicou why he was charging the gun and pointing it at her.
I. Hatzipashalis tried to calm Lefteris Andronicou down by telling him
that many couples quarrel and then make up without the help of the
police. However, when he approached the window, Lefteris Andronicou
threatened that he would fire at him. I. Hatzipashalis asked Lefteris
Andronicou to let him see Elsie Constantinou, specifying that, if Elsie
Constantinou told him that she had no complaint, he would leave.
Lefteris Andronicou did not reply.
25. D. Papapetru, having obtained the authorization of
I. Hatzipashalis, succeeded in engaging Lefteris Andronicou in a
conversation. Lefteris Andronicou asked him for some cigarettes,
telling him that "afterwards he would think what he should do and would
open the door". D. Papapetru pushed some cigarettes under the door. At
one stage Elsie Constantinou cried to D. Papapetru that Lefteris
Andronicou was pointing the gun at her and that he was going to shoot
her. Later on Lefteris Andronicou drew the curtain and D. Papapetru saw
him holding a hunting gun.
26. I. Hatzipashalis, A. Stavrinidis, and D. Papapetru continued
their efforts to persuade Lefteris Andronicou to liberate Elsie
Constantinou and D. Papapetru gave Lefteris Andronicou cigarettes
again. However, as they did not obtain any results, I. Hatzipashalis
decided to inform A. Nikolaidis, the deputy police director of Paphos,
and G. Georgiagis, the head of the Paphos C.I.D.
27. The deputy police director of Paphos, A. Nikolaidis, arrived on
the scene at around 13:00. He talked to Lefteris Andronicou, who asked
in an angry manner for the police to withdraw. A. Nikolaidis promised
Lefteris Andronicou help and protection and invited him to state his
claims. Lefteris Andronicou repeated that he just wanted the police to
go. Elsie Constantinou started shouting for help, claiming that she was
afraid that her life was in danger. She also claimed that Lefteris
Andronicou was pointing his gun at her. A. Nikolaidis called
D. Konstantinidis, the police director of Paphos.
28. In the meantime the third applicant, Elsie Constantinou's father,
arrived in Trifonos Court together with Andreas Onufriu, Elsie
Constantinou's cousin. They found there Antonis Onufriu, another cousin
of Elsie Constantinou, who had also made an attempt to persuade
Lefteris Andronicou to release the young woman. A. Nikolaidis started
gathering information concerning the relationship of Lefteris
Andronicou and Elsie Constantinou. It was established that they were
living together. As it emerged, however, in the course of the
proceedings before the Commission of Inquiry, the police was not aware
during the operation that Elsie Constantinou and Lefteris Andronicou
were engaged to be married.
29. D. Konstantinidis, the police director of Paphos, arrived in
Trifonos Court at around 14:15. He told Lefteris Andronicou that he had
nothing to fear, as there would be no consequences. Lefteris Andronicou
demanded once more the complete withdrawal of the police.
30. At around 15:00 I. Hatzipashalis, the deputy head of the Paphos
C.I.D., ordered another policeman to obtain an arrest and search
warrant on the ground that Lefteris Andronicou was holding Elsie
Constantinou against her will threatening her with a hunting gun.
31. D. Konstantinidis, the police director of Paphos, discussed the
situation with Elsie Constantinou's father in H. Hrisanthu's shop,
which was next to Lefteris Andronicou's flat and which was being used
as an operation room. As A. Nikolaidis, the deputy police director of
Paphos, confirmed before the Commission of Inquiry, Elsie
Constantinou's father suggested that the police should withdraw and
leave the family to deal with the problem on their own.
32. D. Konstantinidis also asked for the assistance of G. Poliviu,
for whom Lefteris Andronicou used to work and who was present.
G. Poliviu talked to Lefteris Andronicou and found out that Lefteris
Andronicou's telephone was not functioning. G. Poliviu, having obtained
D. Konstantinidis's approval, left outside Lefteris Andronicou's window
a telephone which belonged to H. Hrisanthu. It was later established
that the telephone had a loudspeaker facility.
33. D. Konstantinidis called the fourth applicant, Elsie
Constantinou's mother, and persuaded her to come. He also asked Elsie
Constantinou's father to talk to Elsie Constantinou, but the applicant
did not accept. At a certain stage, Lefteris Andronicou requested from
G. Poliviu cigarettes and food, specifying that Elsie Constantinou was
hungry and must have something to eat. D. Konstantinidis decided that
no food should be given to him. G. Poliviu left outside Lefteris
Andronicou's window some cigarettes.
34. D. Konstantinidis had several telephone conversations with
Lefteris Andronicou promising him help. He also talked to Elsie
Constantinou on the phone who said that she was being held against her
will since 23:00 the previous night. D. Konstantinidis concluded that
Lefteris Andronicou did not want to negotiate. At around 16:50 he
called A. Potamaris, the chief of police, and explained the situation.
He volunteered to conduct a rescue operation should the need arise.
A. Potamaris, however, decided to dispatch to Chloraka the platoon of
the Police Special Forces (Mihanokiniti Monada Amesis Drasis -
hereinafter "MMAD") which, in his opinion, was specially trained for
such type of action.
35. At a certain stage Elsie Constantinou's mother arrived, but
Lefteris Andronicou refused to talk to her on the phone. Elsie
Constantinou's mother suggested that the police should leave and let
the family handle the situation.
36. Shortly before 17:00 G. Georgiadis, the head of the Paphos
C.I.D., arrived. A great number of persons had already gathered at the
scene and the area around Lefteris Andronicou's flat had been cordoned
off. At around 17:00, the police director of Paphos, D. Konstantinidis,
went away leaving his deputy, A. Nikolaidis, in charge. A. Nikolaidis
testified before the Commission of Inquiry that it was the first time
in his career that he had been involved in such an operation or such
negotiations.
37. At around 17:10 A. Potamaris, the chief of police, ordered
H. Mavros, to lead to Chloraka the specially trained platoon of MMAD
of which he was in charge.
38. A. Nikolaidis, the deputy police director of Paphos, repeatedly
tried to communicate with Lefteris Andronicou, but the telephone was
engaged. At a certain point Lefteris Andronicou's sister and niece
arrived and talked to Lefteris Andronicou through the door. Lefteris
Andronicou told them that he was afraid of the police. Elsie
Constantinou confirmed that this was so.
39. At around 18:00 Lefteris Andronicou called A. Hatzimitsi, a
general practitioner whom he had consulted on occasions during the past
three months. He told her that he had beaten Elsie Constantinou up and
that there was police outside his flat. He said that he was going to
lose Elsie Constantinou. He asked the doctor to call his sister and
tell her that he had left money on the fridge. He specified that, after
he would have done what he intended to do, his sister might have health
problems and need the money. When A. Hatzimitsi tried to reason with
Lefteris Andronicou, he said that he did not want to talk. He warned
her that he would hang up on her if she tried to call him back.
A. Hatzimitsi called G. Poliviu, who had introduced Lefteris Andronicou
to her, and asked him to inform the police.
40. At 18:10 A. Potamaris, the chief of police, called his deputy,
K. Papakostas and put him in charge of the operation. He also ordered
N. Konstantinu, the deputy director of MMAD, to go to Paphos.
41. At 18:15 A. Potamaris, in the course of his daily telephone
conversation with the Minister of Justice and Public Order, informed
the latter of the incident.
42. At around 18:30 Lefteris Andronicou agreed to talk with the
deputy police director of Paphos, A. Nikolaidis, on the phone. He told
A. Nikolaidis that Elsie Constantinou was finished for him, that she
had behaved very badly towards him and that he had lost her forever.
Lefteris Andronicou appeared to be concerned about Elsie Constantinou's
health and A. Nikolaidis offered to take her to the doctor. However,
Lefteris Andronicou refused, telling A. Nikolaidis that he should wait
until midnight. Lefteris Andronicou specified that, after celebrating
Christmas with Elsie Constantinou, A. Nikolaidis could come and get her
at 00:05. When A. Nikolaidis asked Lefteris Andronicou whether he meant
that he would let Elsie Constantinou free, Lefteris Andronicou did not
reply. He claimed that he was tired and hung up.
43. At around 19:30 H. Mavros, the head of the MMAD platoon, arrived
on the scene together with three other officers of MMAD. He was briefed
by A. Nikolaidis, the deputy police director of Paphos, who told him
that Lefteris Andronicou was carrying a double-barrelled hunting gun.
It was later established that the gun could only contain two bullets
at a time. H. Mavros asked him whether there was any indication that
Lefteris Andronicou might be in possession of other weapons and
A. Nikolaidis replied that this possibility could not be excluded.
H. Mavros also discussed with N. Konstantinu, the deputy director of
MMAD, who was already there. H. Mavros noticed the presence of a great
number of bystanders which he considered "unacceptable". A. Nikolaidis
ordered some persons to be removed.
44. H. Mavros asked A. Trifonos, the owner of the block of flats,
who had also previously tried to persuade Lefteris Andronicou to
release Elsie Constantinou, to show him the scene. H. Mavros visited
the flat above Lefteris Andronicou's as well as the flat next door,
which was identical to that of Lefteris Andronicou. A. Trifonos made
a sketch of Lefteris Andronicou's flat for him.
45. The flat consisted of two rooms and a bathroom. The living room
was in the front, it measured 5 by 3,6 meters and had a door and a
window. There was a skylight above the door. The bedroom and bathroom
were in the back. They had one window each.
46. At some point after 19:30 G. Poliviu told A. Nikolaidis, the
deputy police director of Paphos, that Lefteris Andronicou had told
Dr. A. Hatzimitsi on the phone that around midnight he would set Elsie
Constantinou free and commit suicide. A. Nikolaidis conveyed this
information to his director, D. Konstantinidis, and to the deputy chief
of police, K. Papakostas. K. Papakostas ordered A. Nikolaidis to act
as the principal negotiator, since he had gained Lefteris Andronicou's
confidence. He also told him to engage in the negotiations Dr. A
Hatzimitsi, as well as a psychologist or a psychiatrist and other
persons who could influence Lefteris Andronicou. Finally, A. Nikolaidis
and K. Papakostas discussed the possibility of administering soporifics
to Lefteris Andronicou.
47. A. Nikolaidis called Lefteris Andronicou and told him that Elsie
Constantinou's mother and grand-mother wished to talk to him, but
Lefteris Andronicou refused. Then he called the district doctor in
order to find out where the psychiatrists of the Paphos hospital were.
He was informed that both psychiatrists lived in Limassol.
A. Nikolaidis also called the pharmacist of the Paphos hospital and
ordered drugs. P. Hatzimitsis, the pharmacist, testified that he had
provided one packet of 1 mg and one packet of 2 mg Lorezabam pills. The
hospital did not store 3 mg pills.
48. Two police officers were dispatched to Dr. A. Hatzimitsi's
surgery. Dr. A Hatzimitsi discussed with them Lefteris Andronicou's
telephone call. In reply to their questions, she expressed the view
that Lefteris Andronicou did not have any psychological problems. She
also expressed doubts as to whether she could help, since Lefteris
Andronicou had already told her not to call him again.
C. The rescue plan
49. At around 20:00 H. Mavros went to the Paphos police station where
the rest of the MMAD platoon had arrived. According to the testimony
of the police witnesses before the Commission of inquiry the platoon
included two officers, whom the police witnesses described as "trained
negotiators". H. Mavros explained to the officers of the platoon the
plan, the aim of which was to rescue Elsie Constantinou and capture
Lefteris Andronicou. The key elements of the plan were surprise, speed
and accurate execution. As soon as the platoon would be placed outside
Lefteris Andronicou's flat, H. Mavros would inform the commanding
officer, via a link person. The commanding officer would in turn ask
the negotiator to call Lefteris Andronicou. While Lefteris Andronicou
would be busy talking on the phone, which was in the front room to the
left of the door, tear-gas would be thrown into the flat through the
three glass windows by four officers. Two other officers would force
the door with a battering ram. Four men would enter the front room. The
first two would seize Lefteris Andronicou who would be expected to be
less than two meters away from the door. A third officer would seize
Elsie Constantinou. A fourth officer would enter the flat to provide
any form of assistance which might prove necessary. All communications
would be made by walkie talkie on a secure frequency. The members of
the platoon would carry their pistols and machine guns. They were
informed by their head, H. Mavros, that Lefteris Andronicou had a
double-barrelled hunting gun. They were also told that the possibility
could not be excluded that Lefteris Andronicou could be in possession
of other arms. They were instructed to use proportionate force and fire
only if Elsie Constantinou's or their own lives were in danger. If the
room was dark, they were to use the lights with which their machine
guns were equipped.
D. Later phases of the incident
50. At 20:40 the chief of police, A. Potamaris, had a meeting with
his deputy, K. Papakostas. It was decided that the deputy police
director of Paphos, A. Nikolaidis, should continue to conduct the
negotiations, that two additional negotiators should be sent and that
the police, after obtaining appropriate medical advice, should
administer soporifics to Lefteris Andronicou, if he asked for food.
51. While the meeting between A. Potamaris and K. Papakostas was
still in progress and at around 20:50, the deputy police director of
Paphos, A. Nikolaidis, talked with Lefteris Andronicou on the phone
again. Lefteris Andronicou was very negative because of the media
coverage that the incident had received. He did not allow A. Nikolaidis
to talk to Elsie Constantinou. Elsie Constantinou shouted that Lefteris
Andronicou would kill her. N. Hatziharalambus, a police officer who
knew Lefteris Andronicou, also tried to persuade Lefteris Andronicou
to release Elsie Constantinou.
52. The meeting between A. Potamaris and K. Papakostas ended at
21:00. K. Papakostas ordered two additional negotiators from the police
force to be dispatched to Chloraka. He also called the deputy police
director of Paphos, A. Nikolaidis, who informed him that he had not
been able to contact the psychiatrists of the Paphos hospital and that
Lefteris Andronicou would not talk to Elsie Constantinou's parents.
K. Papakostas ordered A. Nikolaidis to look for psychologists in the
private sector.
53. At around 21:30 D. Konstantinidis, the police director of Paphos,
returned to the scene together with H. Mavros, the head of the MMAD
platoon. He was briefed by the deputy police director of Paphos,
A. Nikolaidis. He called the deputy chief of police K. Papakostas. He
also called Dr. A. Hatzimitsi who agreed to go to Trifonos Court.
54. Then he saw H. Athinodoru, Lefteris Andronicou's last employer,
talking with Lefteris Andronicou on his mobile phone. H. Athinodoru had
already made various unsuccessful efforts to persuade Lefteris
Andronicou to release Elsie Constantinou. Lefteris Andronicou had
threatened that he would shoot Elsie Constantinou, if H. Athinodoru
tried to enter the flat.
55. The police director of Paphos, D. Konstantinidis, interrupted the
conversation between H. Athinodoru and Lefteris Andronicou and
instructed H. Athinodoru to tell Lefteris Andronicou that they wanted
to help him. He specified that he had been authorised by his superiors
to promise Lefteris Andronicou that there would be no consequences if
he let Elsie Constantinou go. Lefteris Andronicou could leave by car,
together with Elsie Constantinou if he wished. H. Athinodoru conveyed
the message to Lefteris Andronicou.
56. In the course of the second part of his conversation with
Lefteris Andronicou, H. Athinodoru threatened Lefteris Andronicou with
the possibility of being left to starve and being beaten up. This is
heard in the video recording. Moreover, D. Konstantinidis accepted
before the Commission of Inquiry that he heard such a statement being
made by H. Athinodoru. He also testified that H. Athinodoru talked to
Elsie Constantinou on the phone who said that Lefteris Andronicou had
been pointing his gun at her.
57. Then D. Konstantinidis called the chief of police, A. Potamaris,
and told him about the telephone conversation between Lefteris
Andronicou and Dr. A. Hatzimitsi. In the meantime, H. Mavros returned
to the Paphos police station and led the MMAD platoon to a warehouse
situated 200 to 300 meters away from Lefteris Andronicou's flat, where
they could not be seen by the bystanders.
58. Dr. A. Hatzimitsi arrived in Trifonos Court escorted by
G. Georgiadis, the head of the Paphos C.I.D. She talked with Lefteris
Andronicou from the operation room. She offered to help him end the
incident without any consequences. Lefteris Andronicou refused to let
her enter the flat, saying that he was afraid of the police. Having
obtained the authorization of the police director of Paphos,
D. Konstantinidis, Dr. A. Hatzimitsi made the following proposal to
Lefteris Andronicou. A car would be brought to his door, the police
would withdraw, Lefteris Andronicou would leave his gun and get in the
car alone or with Elsie Constantinou. The doctor, or any other person
whom Lefteris Andronicou wished to accompany him, could get in the car
as well. They could all leave together and go to another location to
discuss. Lefteris Andronicou refused. Elsie Constantinou intervened and
asked the doctor whether Lefteris Andronicou had psychological
problems. The latter replied that she was not aware of any such
problems. Lefteris Andronicou repeated that he was afraid of the police
and of the consequences. He insisted that he would let Elsie
Constantinou out of the flat at 00:00 to 00:05 and then he would commit
suicide. In the course of the telephone conversation, Lefteris
Andronicou and Elsie Constantinou quarrelled and Lefteris Andronicou
threatened Elsie Constantinou: "Sit down and do not move". He also told
the doctor not to call again because it made Elsie Constantinou
nervous. At one stage Dr. A. Hatzimitsi passed Lefteris Andronicou to
D. Konstantinidis who promised once again that there would be no
consequences.
59. At 21:50 D. Konstantinidis, the police director of Paphos, called
the deputy chief of police, K. Papakostas, and told him that Dr. A.
Hatzimitsi was of the view that Lefteris Andronicou had decided to kill
Elsie Constantinou and commit suicide. In the first statement she gave
to the police, Dr. A. Hatzimitsi confirmed that this was the view which
she had formed and conveyed to D. Konstantinidis. In a letter she
addressed to applicants' counsel on 28 December 1995, Dr. A. Hatzimitsi
claimed that, in the course of her telephone conversation with Lefteris
Andronicou, she had formed the view that he was intransigent and
"capable of doing harm to himself and Elsie". She further specified
that this was the personal opinion of somebody who was not a
psychiatrist. She also protested that the police had tried to attribute
to her more responsibility for the operation than she could have had.
In her testimony before the Commission of Inquiry, when under
examination by counsel for the police, Dr. A. Hatzimitsi adopted her
initial statement, specifying that that was her personal opinion.
60. Then H. Athinodoru told D. Konstantinidis that Lefteris
Andronicou had asked on the phone for food. D. Konstantinidis told his
deputy, A. Nikolaidis, to call Lefteris Andronicou. A. Nikolaidis
called Lefteris Andronicou and two kebab pies (seftalia) were ordered.
61. A person whom A. Nikolaidis could not identify had told
A. Nikolaidis that he had received a telephone call from Lefteris
Andronicou asking for a written assurance that he would not go to jail.
A. Nikolaidis called Lefteris Andronicou again, who told him that he
was afraid that he would go to jail. A. Nikolaidis told him that the
situation was not so serious and offered to enter the flat and hand
Lefteris Andronicou a written assurance that he would not go to jail.
However, Lefteris Andronicou told A. Nikolaidis not to be in a hurry;
he would enter the flat at 00:05. A. Nikolaidis told Lefteris
Andronicou that he would break the door down and enter the flat
unarmed. Lefteris Andronicou warned him that if he tried, he would kill
Elsie Constantinou and commit suicide. At a certain point, Elsie
Constantinou shouted that Lefteris Andronicou was not serious about
letting her go.
62. Lefteris Andronicou's threats, combined with some information
that Lefteris Andronicou had wanted in the past to shoot a person who
had insulted Elsie Constantinou with his hunting gun, led A. Nikolaidis
to the conclusion that Lefteris Andronicou was planning to kill Elsie
Constantinou and commit suicide at around midnight.
63. At 22:15 the police director of Paphos, D. Konstantinidis, called
the deputy chief of police, K. Papakostas, and requested his
authorization to administer soporifics. K. Papakostas called a doctor
in Nicosia hospital and the chief of police, A. Potamaris, who approved
the plan. D. Konstantinidis was duly informed.
64. S. Zinonos, a police officer, testified before the Commission of
Inquiry that he had been ordered to bring some food for Lefteris
Andronicou at 22:20. Three to five minutes after he had left he was
called on the radio and the order was changed. I. Pavlu, another
officer, claimed in his original statement to the police that
S. Zinonos had been ordered to bring food at around 22:40 and that the
order had been changed fifteen minutes later. Before the Commission of
Inquiry he specified that the times he had given were very approximate,
because he had not looked at his watch when S. Zinonos left. He had
merely estimated that this must have been the time. He also specified
that it was possible that the order had been changed eight to eleven
minutes after S. Zinonos's departure. S. Zinonos testified that it took
ten to fifteen minutes for the kebabs to be prepared.
65. At 22:30 the head of the MMAD platoon, H. Mavros, called the
deputy chief of police, K. Papakostas, and explained to him the rescue
plan. K. Papakostas asked whether it had been envisaged to use
explosives to open the door and stun grenades. These options were,
however, discarded for fear that Lefteris Andronicou and Elsie
Constantinou might be hurt. It was also noted that it normally took
four seconds for the stun grenades to explode and that that might give
Lefteris Andronicou time to react.
66. At 22:40 there was another meeting between the chief of police
and his deputy in the chief's house. The deputy chief, K. Papakostas,
told the chief, A. Potamaris, that Lefteris Andronicou was planning to
kill Elsie Constantinou and commit suicide. At 22:45 A. Potamaris
called the Minister who was of the view that "the police should decide
whether MMAD should conduct a rescue operation on the basis of their
appreciation of the situation at the time after having reviewed all
relevant information and eliminated all other possibilities". Then
K. Papakostas explained to A. Potamaris the rescue plan. A. Potamaris
instructed K. Papakostas to delay the involvement of MMAD as much as
possible to enable the efforts to persuade Lefteris Andronicou to
continue. The meeting ended at 23:00.
67. When the food which Lefteris Andronicou had ordered arrived,
Dr. A. Hatzimitsi put in the pies the Lorezabam pills that
P. Hatzimitsis, the hospital pharmacist, had provided. Before the
Commission of Inquiry she testified that she had placed six 3 mg
Lorezabam pills in each pie. She also testified that earlier on it had
been suggested that another drug called Dormicum could be used, but
that the police did not have sufficient time to find such pills.
68. The food was then delivered to Lefteris Andronicou by the deputy
police director of Paphos, A. Nikolaidis, who left it by the window.
All the police officers who testified on this issue agreed that the
food had been delivered around 23:00. Dr. A. Hatzimitsi's testimony
supported their version of events. Antonis Onufriu, Elsie
Constantinou's cousin, testified that the food had arrived at around
23:30. G. Poliviu, an ex-employer and friend of Lefteris Andronicou
claimed, in his original statement to the police, that the food had
arrived at 23:15. Before the Commission of Inquiry he testified that
the food had arrived between 23:30 and 23:40. H. Athinodoru Lefteris
Andronicou's last employer testified that the drugs had been put in the
food at around 23:10, immediately before he left the scene.
69. The head of the MMAD platoon, H. Mavros admitted before the
Commission of Inquiry that he had not been aware that soporifics had
been administered to Lefteris Andronicou.
70. At around 23:00 two additional negotiators arrived. Elsie
Constantinou was repeatedly heard screaming that Lefteris Andronicou
was going to kill her.
71. After 23:00, the police director of Paphos, D. Konstantinidis,
held a meeting with his deputy, A. Nikolaidis, the head of the Paphos
C.I.D, G. Georgiadis, the deputy director of MMAD, N. Konstantinu, and
the head of the MMAD platoon, H. Mavros. They came to the conclusion
that Lefteris Andronicou was planning to kill Elsie Constantinou and
commit suicide at 00:00 or 00:05. As a result, there could be no
further negotiations and the MMAD platoon should take action. H. Mavros
affirmed that he was prepared to lead the operation.
72. D. Konstantinidis, the police director of Paphos, accepted before
the Commission of Inquiry that, although some notes were being taken
during the incident, he had not been involved in this process. Neither
did he consult these notes during the final meeting or before.
A. Nikolaidis, the deputy police director of Paphos, made a similar
statement.
73. Immediately after the meeting, the police director of Paphos,
D. Konstantinidis, called the deputy chief of police, K. Papakostas,
and told him that they were awaiting instructions from the headquarters
as to whether they should continue the negotiations or break into the
flat. If the instructions were to continue the negotiations and Elsie
Constantinou was nevertheless killed, responsibility would lie with the
headquarters. K. Papakostas testified that he received
D. Konstantinidis's telephone call at 23:10.
74. H. Mavros left to inform his platoon about the new development,
namely the information that Lefteris Andronicou was planning to kill
Elsie Constantinou. The platoon was then moved closer to Lefteris
Andronicou's flat, behind the block of flats.
75. The deputy chief of police, K. Papakostas, met with the chief,
A. Potamaris, in the latter's house. A. Potamaris agreed that MMAD
should be used. K. Papakostas called the police director of Paphos,
D. Konstantinidis, and informed him that the rescue plan had been
approved. Then K. Papakostas talked to the head of the MMAD platoon,
H. Mavros, who had in the meantime returned and the two men agreed that
the plan remained unchanged. Then K. Papakostas talked again to
D. Konstantinidis who had in the meantime given instructions that an
ambulance be dispatched to the scene. D. Konstantinidis had specified
that the lights of the ambulance and its siren should be switched off
so as not to alert Lefteris Andronicou. According to the evidence
presented to the Commission of Inquiry, the order for the ambulance
reached Paphos hospital at 23:45.
76. H. Mavros asked for all bystanders to be pushed back and
D. Konstantinidis gave the relevant orders.
77. After the final meeting of the police officers, E. Parmatzia,
Lefteris Andronicou's cousin, arrived in Trifonos Court with her
husband and her sister. E. Parmatzia claimed before the Commission of
Inquiry that she had received two telephone calls from Lefteris
Andronicou in the course of the day and that Lefteris Andronicou had
told her that he would open his door only if the police left. The
police director of Paphos, D. Konstantinidis, called Lefteris
Andronicou on the phone. Lefteris Andronicou talked to E. Parmatzia but
declined her offer to meet her. He also questioned her identity and
then, according to E. Parmatzia, D. Konstantinidis interrupted the
conversation.
78. E. Parmatzia further testified that, when she talked to Lefteris
Andronicou on G. Poliviu's mobile phone five to six minutes later,
Lefteris Andronicou asked for the withdrawal of the police.
E. Parmatzia's husband testified that he had also talked to Lefteris
Andronicou on that occasion.
79. According to a detailed telephone bill produced by G. Poliviu
before the Commission of Inquiry, three telephone calls were made from
his mobile phone to Lefteris Andronicou' phone that night, one at
23:18, one at 23:39 and one at 23:49. According to G. Poliviu, when he
last talked with Lefteris Andronicou, Lefteris Andronicou indicated
that he wanted to be left alone to prepare some coffee.
E. Armed intervention - Deaths of Elsie Constantinou
and Lefteris Andronicou
80. Shortly before midnight the members of the MMAD platoon silently
took their positions around Lefteris Andronicou's flat. They were
filmed by the journalist who made the video recording.
81. H. Mavros testified before the Commission of Inquiry that he
stood 60 meters away from the flat. Six officers were placed in front
of the flat (in the proceedings before the Commission of Inquiry these
were referred to as officers Nos. 1, 2, 3, 4, 5 and 6) and two at the
back (for the purposes of the inquiry officers Nos. 7, 8). Officers
Nos. 5 and 6, who would fire tear-gas into the living-room, were by the
front window. Officers Nos. 1 and 3 were placed on the right of the
door and officers Nos. 2 and 4 on the left. The two men with the
battering ram were placed opposite the door. Five other MMAD officers
took positions around the flat for security purposes.
82. The police director of Paphos, D. Konstantinidis, testified that,
once the officers had taken their positions, he called the deputy chief
of police, K. Papakostas, on the phone once more at 23:55.
83. H. Mavros testified that he called on his radio the link person.
According to H. Mavros, the link person called the commanding officer,
D. Konstantinidis, who ordered the deputy police director of Paphos,
A. Nikolaidis, to call Lefteris Andronicou. When H. Mavros was told by
the link person that A. Nikolaidis was talking with Lefteris
Andronicou, he gave the signal for the armed intervention.
84. A. Nikolaidis testified that he called Lefteris Andronicou when
he was told to do so by D. Konstantinidis at 23:59 or 00:00. Lefteris
Andronicou said "Hello". Then A. Nikolaidis tried to say something but
he heard shootings. He shouted Lefteris Andronicou's name two or three
times but received no answer.
85. Officers No. 1, 3 and 5 testified that they heard Lefteris
Andronicou's telephone ring three times. They considered that it was
the telephone call intended to distract Lefteris Andronicou. They did
not hear Lefteris Andronicou reply. Then they heard the telephone ring
again followed by the signal "Inside, inside, inside". According to
officer No. 1, there was a one-minute interval between the two
telephone calls.
86. When the signal was given, officer No. 5 shot two tear-gas
bullets through the front window and then officer No. 6 sprayed the
living room with tear-gas. Officer No. 8 fired two tear-gas bullets
into the bathroom. Officer No. 7 inadvertently, as he subsequently
testified, fired two real, instead of tear-gas, bullets into the
bedroom.
87. The door was broken and officer No. 1 entered the flat. In his
testimony, he claimed that he saw Lefteris Andronicou standing in front
of him, three to four meters away, with his gun pointed at him. Elsie
Constantinou was in front of Lefteris Andronicou and both appeared to
make a slight movement. Lefteris Andronicou' gun was over Elsie
Constantinou. Officer No. 1 moved and Lefteris Andronicou shot him on
the right shoulder. He fell back pushing officer No. 3 as well. Officer
No. 3 fell down.
88. It was subsequently established that immediately after the first
shot Lefteris Andronicou fired a second one, which hit Elsie
Constantinou. In their testimony, officers Nos. 1, 2, 3 and 5 claimed
that they only heard one shot.
89. Officer No. 2 testified that he saw Nos. 1 and 3 falling back.
He also heard officer No. 1 crying out "He shot me". He believed that
officer No. 1 had been seriously injured and that No. 3 had been
killed. He entered the flat three seconds later, having decided to use
his machine gun, as opposed to his pistol, because he needed light. He
switched on his gun-light and saw Lefteris Andronicou and Elsie
Constantinou in the diagonally opposite corner. Lefteris Andronicou's
knees were bent as if he was preparing to sit down. Elsie Constantinou
was in front of Lefteris Andronicou, facing Lefteris Andronicou.
Officer No. 2 could only see the left side of Lefteris Andronicou's
body. He did not notice whether Lefteris Andronicou had a gun but
believed that he did. He considered that he did not have time to
ascertain whether his belief corresponded to reality. He distinguished
Lefteris Andronicou and shot two to three times. Lefteris Andronicou
and Elsie Constantinou moved and officer No. 2 could not see Lefteris
Andronicou any longer. He moved to the right and could then see
Lefteris Andronicou's left side. Lefteris Andronicou was sitting on the
floor and Elsie Constantinou was covering the right side of his body.
Officer No. 2 shot again at Lefteris Andronicou several times. He
stopped shooting when Lefteris Andronicou was lying on the floor. He
wanted to make sure that Lefteris Andronicou was no danger to him or
Elsie Constantinou. Lefteris Andronicou's moves appeared menacing to
officer No. 2. Officer No. 2 further testified that all his shots were
aimed at the left side of Lefteris Andronicou's body, because this was
the only side he could see. He affirmed that he had been trained to
shoot to kill, when shot at. He did not exclude that he might have shot
one or two bullets when Lefteris Andronicou was already lying on the
floor. It was later ascertained that officer No. 2 shot 13 bullets.
90. Officer No. 4 testified that he entered the flat after officer
No. 2 had fired the first bullets and had moved on. He saw Lefteris
Andronicou in the diagonally opposite corner sitting on the floor, his
legs stretched-out in front of him. Elsie Constantinou was lying on
Lefteris Andronicou' right shoulder. He did not notice whether Lefteris
Andronicou was holding a gun. When the firing was over, he saw Lefteris
Andronicou lying on the floor and Elsie Constantinou covering his right
side. He refused to answer any other questions in the Inquiry invoking
his right not to incriminate himself. It was later ascertained that he
fired 16 bullets.
91. In the video recording, once the officers enter the flat, a small
number -approximately six- of distinct shots are heard. A burst of fire
follows. It was accepted by all parties that these were all single
shots, as opposed to automatic fire.
92. Officer No. 1 testified that he re-entered the flat after
officers Nos. 2 and 4. He pointed his light at Lefteris Andronicou, who
was being lit up by the gun-lights of officers Nos. 2 and 4 who were
still shooting at him. As officer No. 1 entered the room, officer No. 2
was on his right and officer No. 4 on his left. He saw Lefteris
Andronicou sitting on the ground with his back against the wall. Elsie
Constantinou was covering part of Lefteris Andronicou's right side, her
face down. He did not count how many shots he heard. Neither did he
notice where Lefteris Andronicou's gun was. He testified that he had
been trained to shoot to kill, when shot at. He also testified that he
would not have stopped firing, even if it had been clear to him that
Lefteris Andronicou, when he was sitting with his back against the
wall, had no gun. He had been told that it could not be excluded that
Lefteris Andronicou might have had another weapon, for example a knife,
which he could have used to kill the young woman.
93. Officer No. 3 testified that he entered the flat after officer
No. 1, having heard two or three shots when moving towards the door.
As he entered he saw Lefteris Andronicou and Elsie Constantinou in the
diagonally opposite corner. Lefteris Andronicou was sitting on the
floor, his legs stretched out in front of him. Elsie Constantinou was
covering his right side. He saw officers Nos. 2 and 4 shooting. He did
not count the shots. He wanted to seize Elsie Constantinou without
getting in the line of fire. He looked at officer No. 4 and before
looking at the bodies again the firing stopped. Then he saw Lefteris
Andronicou lying down, his knees bent against the wall, his head on the
stereo. Elsie Constantinou was on him, the right part of her body on
Lefteris Andronicou's right side covering half his chest. Their bodies
were not touching from the waist down. He did not see a gun. He seized
Elsie Constantinou and headed for the door shouting "An ambulance, an
ambulance". At the door step he stumbled and let Elsie Constantinou sit
on the floor. He then gave her to two other MMAD officers. He testified
that, according to his training, when it was necessary to shoot, one
always shot to kill.
94. In the video recording, as Elsie Constantinou is being taken out
of the flat, several persons are heard shouting for an ambulance.
According however, to all the witnesses, no ambulance was present and
Elsie Constantinou had to be transported to Paphos hospital in a police
car. Dr. A. Hatzimitsi escorted her. The ambulance arrived in Trifonos
Court shortly afterwards.
95. While Elsie Constantinou is being taken to the police car two
more shots are heard in the video recording. Officer No. 1 testified
that he and officer No. 2 realised that the bedroom door of Lefteris
Andronicou's flat was locked. He called No. 5 on the radio who carried
a gun which could be used for breaking open doors. Officer No. 5
testified that he entered the flat when Elsie Constantinou was being
carried out. He shot once, kicked the door and shot again. The door did
not open. When they realised that nobody was in, they went out. Officer
No. 1 saw the head of the MMAD platoon, H. Mavros, and told him that
Lefteris Andronicou was dead.
96. G. Georgiadis, the head of the Paphos C.I.D., testified that he
was informed by a person whom he could not identify that Lefteris
Andronicou was dead. He went to the door of Lefteris Andronicou's flat
and shone his torch in. He saw Lefteris Andronicou lying in a pool of
blood but did not move in because of the tear-gas. He was satisfied
that Lefteris Andronicou was dead and informed his superiors. In the
course of the proceedings before the Commission of Inquiry, it emerged
that the next person to approach Lefteris Andronicou's body was the
state pathologist, Dr. M. Matsakis, who visited the scene at 5:00 on
the morning of 25 December 1993 and confirmed Lefteris Andronicou's
death. Dr. M. Matsakis considered that Lefteris Andronicou's death had
occurred five hours earlier.
97. When Elsie Constantinou arrived in Paphos hospital, she was in
deep shock. She was operated for four and a half hours. Then she was
admitted to the intensive care unit, where she succumbed to her wounds
at around 5:10 on the morning of 25 December 1993.
98. Officer No. 1 was also taken to the Paphos hospital. First aid
was administered to him and X-rays were taken. Although he was advised
to stay in hospital, he left on his own will shortly afterwards.
F. The immediate aftermath
99. At around 8:30 on the morning of 25 December 1993, the police
started photographing the scene of the incident and a video recording
was made. Lefteris Andronicou's body was half-naked, in the sense that
he was only wearing a pair of trousers at the time of his death. A
hunting gun bullet was found in one of his pockets. The telephone was
on a table to the left of the door. The receiver was not off the hook.
On the same table there was a half-full cup of coffee, one kebab pie
which was intact and the remains of a second kebab pie. The bedroom
door was still locked, with two bullet holes near the lock. Lefteris
Andronicou's gun was lying across the arms of an armchair near his
body. The gun was not broken for re-loading and there was no blood on
the armchair. None of the police officers involved suggested that the
gun had been moved after the incident.
100. A senior police officer, Mr. Onisiforu started an inquiry and
written statements were taken from a number of witnesses. Later on in
the day the police issued a first press release entitled: "Operation
for the rescue of an abducted young woman".
101. At around 11:00 on 26 December 1993 the Minister of Justice and
Public Order participated in a meeting at the police headquarters.
After the meeting he told the journalists that Elsie Constantinou had
been abducted.
102. On the same day the families of Lefteris Andronicou and Elsie
Constantinou requested that a criminal investigation be opened, in
accordance with Article 4 of the Criminal Procedure Law. Moreover, an
application for an inquest into Lefteris Andronicou's and Elsie
Constantinou's deaths was filed with the Coroner of the District Court
of Paphos.
G. The Commission of Inquiry
103. On 27 December 1993 the Council of Ministers mandated the
President of the Supreme Court, Mr. A. N. Loizou, judge of the European
Court of Human Rights, to carry out an inquiry, in accordance with the
Commissions of Inquiry Law. The terms of the mandate were "to
investigate in full the circumstances under which the deaths of
Lefteris Andronicou and Elsie Constantinou occurred in Chloraka,
Paphos, on the night of 24 to 25 December 1993, to determine who, if
any, was responsible and to make any recommendations or observations
which (the President of the Supreme Court) would deem necessary".
104. The Attorney-General ordered Mr. Onisiforu to continue his
inquiry, but not to interfere with any of the real evidence, on the
ground that the inquiry was not a criminal one within the meaning of
Article 4 of the Criminal Procedure Law but of an internal, purely
administrative, character. Moreover, the Coroner decided to refrain
from fixing a hearing date.
105. On 29 December 1993 the Council of Ministers decided to grant the
applicants ex gratia legal aid for the purposes of the inquiry which
would cover their legal representation and obtaining expert evidence.
106. The hearings before the one-member Commission of Inquiry opened
on 3 January 1994. The applicants promptly objected to the appointment
of the Commission of Inquiry, considering that the matter should have
been dealt with by way of a criminal investigation. The Commission
considered, however, that it was not competent to examine the legality
of the decision of the Council of Ministers setting it up.
107. The Commission of Inquiry held forty-six hearings, which were
attended by the Attorney General on behalf of the Republic and counsel
on behalf of the families of the deceased, the police and MMAD.
Directions were given concerning the collection and preservation of all
real evidence and the carrying out of all appropriate forensic tests.
One hundred and thirteen exhibits were examined and seventy-two
witnesses were heard. The witnesses testified under oath and were
examined and cross-examined by all interested parties. Although the
proceedings were public, the agents of MMAD who took part in the armed
intervention testified in camera. Their identities were disclosed only
to the President of the Supreme Court who conducted the inquiry. The
minutes of the inquiry, totalling 2389 pages, were made public in their
entirety.
H. Expert evidence before the Commission of Inquiry
108. The following expert evidence was tendered to the Commission of
Inquiry:
i. Planning of the operation
109. R. Bagg, an ex-colonel of the Israeli army and a professional
anti-terrorist and negotiations trainer, criticized the following
aspects of the rescue operation. The witness considered that in most
cases which did not involve terrorists or hardened criminals
negotiations could secure the liberation of the persons held and render
the use of force unnecessary. In the case under examination, however,
some of the main rules concerning negotiations had not been followed.
The witness considered that the result of the negotiations could have
been much more satisfactory if they had been based on a "give and take"
approach. In general it was better for the negotiations to be conducted
by persons who were not or did not appear to be police officers. The
police could have ensured that no unauthorised calls reached Lefteris
Andronicou by disconnecting his telephone and providing him with
another line. Lefteris Andronicou should not have been able to see the
crowd outside.
110. The MMAD platoon should have used multiple entries for their
armed intervention. An observer should have been placed by the skylight
who could have informed the police of Lefteris Andronicou's movements.
Special care should have been taken, however, because the head of the
person at the skylight could have been seen by Lefteris Andronicou. The
armed intervention should have taken place earlier on. Stun grenades
should have been used instead of tear-gas. A fire engine could have
poured water in the flat in order to neutralise Lefteris Andronicou.
In this case, however, it would have been necessary to ascertain
Lefteris Andronicou's exact position. The witness did not exclude the
possibility that the officers might have mistaken Lefteris Andronicou's
two shots for one. In this case, however, they should have lured
Lefteris Andronicou into using his second bullet. Well-trained officers
like those of MMAD should have realised that Lefteris Andronicou was
not holding a gun and, in any case, should have fired the least number
of bullets possible. No bullets should have been fired after Lefteris
Andronicou had fallen on the ground.
111. W. Spalding, an ex-police officer from the United States and a
professional crisis management and hostage negotiations trainer who had
trained some of the officers of MMAD, was not critical of the rescue
operation. Although persons holding hostages often extended their
deadlines, symbolic deadlines were to be taken more seriously. The
failure to use the skylight was not "a big issue". It was not a mistake
to use tear-gas instead of stun grenades. In W. Spalding's view, it
could not have been the intention of H. Mavros to wait for the tear-gas
to produce its effects, since that usually took some time. The tear-gas
was thrown to divert Lefteris Andronicou's attention. In the United
States there were two schools of thought regarding multiple entry.
Although he tended to prefer it, others avoided it for fear that the
hostage might be caught in the crossfire. In any event, there was
nothing reproachable in the plan of the head of the MMAD platoon,
H. Mavros, who had considered and excluded all other possible options.
112. W. Spalding also testified that he had trained the officers of
MMAD to such a level that they had to fire real bullets at balloons
attached to his body. He had trained the officers of MMAD to use lethal
force as the last option. When it was necessary, however, the officers
had been trained to shoot at the thorax. They had been trained to shoot
until the target ceased to be a threat. In the case under examination,
the use of lethal force became justified when Lefteris Andronicou
opened fire. The officers of MMAD should not have been concerned as to
the number of bullets fired. When cross-examined by applicants'
counsel, the witness accepted that he had taken part in a number of
operations involving ordinary civilians who held others under the
threat of a gun where a negotiated solution had been found.
ii. Drugs
113. K. Konari, a state chemist who tested the kebab pie which had not
been consumed, testified that the quantity of Lorezabam that she had
found in the pie indicated that five 2 mg pills had been used. Elsie
Constantinou had consumed a very large part of her pie. Lorezabam was
a tranquillizer, anti-anxiety drug which also had soporific effects.
It started producing its effects within thirty-five minutes
approximately. Its maximum effects were produced in two hours.
114. P. Hatzimitsis, the pharmacist who provided the soporifics,
testified that Lorezabam started producing its effects in half an hour.
Its maximum effects were produced in between one and six hours.
115. Dr. A. Hatzimitsi, the general practitioner who placed the
soporifics in the food, testified that, if Lefteris Andronicou and
Elsie Constantinou had eaten the pies, the drug would have produced its
effects in half an hour and they would have fallen asleep. If Dormicum
had been administered, they would have fallen asleep in ten minutes.
iii. Sequence of events
116. N. Adan, a forensic expert from Israel, who had prepared a noise
time chart on the basis of the video recording, testified that the
second shot from Lefteris Andronicou's gun was shot 0,8 seconds after
the first. In the witness's view, Lefteris Andronicou's second shot,
similarly with the first, was directed towards the door. The witness
had reached this conclusion on the basis of the small number of pellets
found in the flat. The noise time chart indicated that a number of
distinct shots were fired after the entry of the officers of MMAD in
the flat in the following sequence: one single shot, one triple shot
and one double shot. These shots started 5.8 seconds and ended 8.5
seconds after the first tear-gas shot. N. Adan considered that Elsie
Constantinou must have been wounded at that stage because her screams,
which could be heard on the video, were significantly reduced after the
six shots. However, the witness was not sure that the screaming had
stopped entirely. The noise time chart further indicated that a burst
of firing followed the single shots. It began 11 seconds and ended
13 seconds after the first tear-gas shot.
117. Dr. A.C. Hunt, a university reader in forensic pathology in the
United Kingdom, an ex-Home Office pathologist and an examiner in
forensic pathology for the Royal College of Pathologists, testified
that Elsie Constantinou must have received her wounds at the early
stage of the operation because she was not heard shouting after the
first shots in the video recording. However, he did not exclude that
she might have stopped shouting for another reason or that the noise
of the shooting might have covered her screams.
iv. Lefteris Andronicou's death
118. Dr. M. Matsakis, the state pathologist, conducted a post-mortem
examination on Lefteris Andronicou's body on 27 December 1993. He found
seven wounds to Lefteris Andronicou's head and neck, twenty-eight
wounds to the thorax, abdomen and pelvis, nine wounds to the right arm,
sixteen wounds to the left arm and four other wounds, all caused by
bullets fired by the machine guns of the officers of MMAD. The number
of bullets which had hit Lefteris Andronicou were at least twenty-five.
The position of the wounds was such that, in Dr. M. Matsakis opinion,
for at least part of the firing, the arms of Lefteris Andronicou had
been interposed between the guns and his thorax. Before the Commission
of Inquiry Dr. M. Matsakis testified that these could have been among
the first wounds inflicted.
119. In his report D. M. Matsakis also specified that it was possible
that the wounds inflicted to the left and right side of Lefteris
Andronicou's body had been caused by bullets fired from different
directions. Many of the bullets had been fired when Lefteris Andronicou
was not in an upright position. At least some of bullets which had
entered the right front side of the body (mainly the abdomen) and had
exited from the right lumbar region, had been fired while Lefteris
Andronicou's body had been lying on the floor. Before the Commission
of Inquiry, Dr. M. Matsakis specified that the last bullets had hit
Lefteris Andronicou's body while the right side of his back was in
contact with the floor.
120. Dr. A.C. Hunt testified that, if Elsie Constantinou had been
covering the right side of Lefteris Andronicou during the shootout as
MMAD officer No. 2 had testified, Lefteris Andronicou would not have
received the wounds he had received to the right side of his thorax,
his right shoulder and his abdomen. He further testified that the
position of Lefteris Andronicou's wounds was such that Elsie
Constantinou could not have been covering his right side, as officer
No. 4 had testified. Moreover, the position of the wounds inflicted
when Lefteris Andronicou was already lying on the floor could not be
reconciled with the testimony of the officers of MMAD that Elsie
Constantinou had been found covering his abdomen.
121. In the course of the examination of Dr. A.C. Hunt it was accepted
by both sides that Lefteris Andronicou was already dead when the last
shots were fired.
v. Elsie Constantinou's death
122. Dr. M. Matsakis, the state pathologist, also performed a post-
mortem examination on Elsie Constantinou's body on 26 December 1993.
Her body had been penetrated by two bullets fired by the machine guns
of the officers of MMAD. The first bullet had entered the left lower
postero-lateral region of the thorax and had exited from the right side
of the mid thorax. The second bullet had entered the lower right back
and exited from the right side of the abdomen. The distance between
Elsie Constantinou's body and the machine guns must have been greater
than one meter.
123. Dr. M. Matsakis also found four areas of wounding caused by
bullets fired from Lefteris Andronicou's hunting gun. A wound to the
right hand was caused by contact or near-contact firing. Dr. M.
Matsakis considered it very likely that it had been caused by the same
shot which had injured officer No. 1. There was a second wound to the
left hand also caused by contact or near-contact firing. A third wound
to the upper left thoracic region and the front region of the left
upper shoulder had been caused by the same shot which had injured Elsie
Constantinou's left hand. The same shot had also caused slight wounding
to Elsie Constantinou's left ear.
124. There were also signs that Elsie Constantinou had been beaten in
the face before her death.
125. Dr. M. Matsakis concluded in his report that Elsie Constantinou's
death had been caused by the wound inflicted by the machine gun bullet
which had penetrated her right lung, liver, stomach and spleen. A
second machine gun wound to the abdominal area and the hunting gun
wounds to the anterior left upper thorax and hands had contributed to
her death.
126. Before the Commission of Inquiry, Dr. M. Matsakis specified that
the first wound was capable of causing Elsie Constantinou's death on
its own. The chances that Elsie Constantinou might have died, if she
had only received the wounds to the anterior left upper thorax and
hands, were very slim. However, this could not be excluded, in the
sense that even the most insignificant wound could cause death if it
became seriously infected. The state pathologist was invited to explain
what he meant when he stated in his report that the wounds in the
anterior left upper thorax and hands contributed to Elsie
Constantinou's death. He replied that Elsie Constantinou had died
because her brain was not receiving oxygen due to the bleeding.
Although the principal wound had caused intense bleeding, the wounds
to the left upper thorax and arms had also caused bleeding.
127. Dr. F. Konstantinidis, the doctor who had operated Elsie
Constantinou, testified that the presence of an ambulance at the scene
would not have prevented Elsie Constantinou's death.
128. Dr. H. Fotiu, a surgeon called on behalf of the families of the
deceased who was present during the post-mortem examination, accepted
before the Commission of Inquiry that the wounds inflicted by Lefteris
Andronicou's gun had contributed to Elsie Constantinou's death.
However, he specified that Elsie Constantinou would have died even if
these wounds had not been inflicted. In his view, there could be no
doubt that Elsie Constantinou would have survived, if she had only
received the wounds caused by Lefteris Andronicou's gun. He specified
that she would have had to spend only three days in hospital.
129. Dr. A.C. Hunt testified that the wounds to the anterior left
upper thorax and the hands "should (not) have been put as a
contributory cause. It is like saying ... that somebody who has had
their head cut off, death was influenced by a broken leg. The wounds
described in the first paragraph are so catastrophic that there would
be no need for any contributory cause. And, I have never seen a death
from a discharge of a shot gun which has not penetrated a body cavity
or the head or neck. Finally, it would be also more a matter for the
surgeon who saw the wound in life."
vi. Lefteris Andronicou's gun
130. Ar. Haralambus, the police officer who had collected the finger
prints, testified that he was sure that all the fingerprints on
Lefteris Andronicou's gun, with the exception of two, belonged to
Lefteris Andronicou. One fingerprint could have belonged to Lefteris
Andronicou and one did not. H. Diogenus, a bio-chemist in Nicosia
hospital, was not in a position to testify that Lefteris Andronicou's
blood was found on his gun.
131. A. Nikolaidis, a police officer and an expert in ballistics,
testified that Lefteris Andronicou's gun had not been hit by any
bullets and that it could not be excluded that the gun might have
fallen accidentally, instead of having been placed, on the armchair.
The state pathologist, Dr. M. Matsakis, expressed the view that
Lefteris Andronicou's gun could have fallen on the armchair as Lefteris
Andronicou was collapsing.
132. Dr. A.C. Hunt also testified that, if Lefteris Andronicou had
been holding a gun when being shot at, the gun would have fallen on the
floor. It could not have fallen on the armchair in the position in
which it had been found. It might have fallen on the armchair only if
the armchair had been in front of Lefteris Andronicou when he dropped
the gun.
133. N. Adan testified that the position in which Lefteris
Andronicou's gun had been found, its muzzle pointing towards the door,
and the absence of blood suggested that it had been placed there by
Lefteris Andronicou. He considered that Lefteris Andronicou had
sufficient time to do that after he had fired the shots and until the
entry of the first officer of MMAD.
I. Findings of the Commission of Inquiry
134. The investigation was concluded on 27 April 1994 and the report
of the Commission of Inquiry, totalling 258 pages, was published on
15 June 1994. The main findings of the Commission of Inquiry were the
following:
135. The negotiations between the police and Lefteris Andronicou were
conducted in the best possible manner under the circumstances, given
in particular Lefteris Andronicou's stance. Lefteris Andronicou was
granted all he had requested, i.e. a telephone, cigarettes and food.
Although the latter arrived with a certain delay, this had been done
on purpose to exhaust Lefteris Andronicou and make him surrender.
Lefteris Andronicou was also given assurances that there would be no
consequences if he agreed to release Elsie Constantinou. However,
Lefteris Andronicou would not ask for anything less than the departure
of the police. There were no indications that Lefteris Andronicou had
any particular enmity vis-à-vis the police. In any event, it would have
been extremely improvident for the police to withdraw and leave Elsie
Constantinou in the hands of Lefteris Andronicou.
136. The non-involvement of psychologists, who had been sought but not
found, did not affect the validity of the Commission's conclusion
concerning the manner in which the negotiations had been conducted. The
police used the deputy police director of Paphos as principal
negotiator, an officer with great experience in dealing with people,
who immediately won Lefteris Andronicou's confidence and who
communicated with him until the end. Trained negotiators members of the
police force were present as well, whose knowledge was used and who
could have intervened if mistakes had been made. Moreover, the police
used all available persons who could have influenced Lefteris
Andronicou in the direction of abandoning his plan.
137. No attempt to extend the negotiations further could be made, as
there were grounds to believe that Lefteris Andronicou was determined
to abide by his deadline. Lefteris Andronicou made repeated and
consistent references to something which would happen at midnight on
the 24th of December. The symbolic importance of the time chosen could
not be easily ignored.
138. There was nothing reproachable in the Paphos police director's
acting as commanding officer. An attempt was made to disperse the
crowd. The suggestion of counsel for the families of the deceased that
the police missed several opportunities to neutralise Lefteris
Andronicou, when he opened the window to take the telephone, the
cigarettes and the food, was entirely unrealistic.
139. When deciding to dispatch MMAD the chief of police acted
responsibly, correctly and within his competence. All necessary
information had been made available to him. There was no indication
that the involvement and deployment of MMAD had been decided and
planned in a sloppy manner. MMAD was a body specially trained to deal
with such situations, which could not be handled by ordinary police
officers. It was wrong to assume that MMAD could only be used against
terrorists or in war-time operations.
140. Despite some testimony to the contrary, the Commission was
satisfied that the food which Lefteris Andronicou had ordered arrived
at 23:00 approximately. The pharmacist who provided the drugs and
Dr. A. Hatzimitsi agreed that the soporifics which were placed in the
food would have started producing their effects in half an hour. The
other expert, K. Konari, made a distinction between the time which the
particular soporific took to produce its effects, which she put at
thirty-five minutes approximately, and the time the drug took to
produce its maximum effects, which she put at two hours. These
estimates, however, applied to situations where a normal dose had been
administered. In any event, even if the wrong dose or the wrong drug
had been administered as suggested by the applicants, Lefteris
Andronicou did not eat the food and the operation could not have been
planned around that factor exclusively.
141. The police formed the view that Lefteris Andronicou was planning
to kill Elsie Constantinou and commit suicide at midnight on the basis
of all necessary and available information. This was the opinion of
Lefteris Andronicou's doctor who had had extensive discussions with
him. Lefteris Andronicou had told the police director of Paphos
verbatim that "there is no Christmas for us, I will celebrate Christmas
with Elsie and at 00:05 you will come inside and take her". Elsie
Constantinou herself claimed that Lefteris Andronicou intended to kill
her. Lefteris Andronicou had not accepted any of the assurances offered
to him and had threatened to shoot whenever it had been suggested to
him that somebody might try to enter the flat.
142. There was no indication that the police were in a hurry to close
the matter before midnight because it was Christmas eve, as suggested
by the applicants. The fact that the police had not been fully informed
about the particulars of Lefteris Andronicou's relationship with Elsie
Constantinou could not have affected the validity of their assessment
of the situation. Although reference had been made to Elsie
Constantinou having been abducted, the police knew that Elsie
Constantinou had not initially been taken to Lefteris Andronicou's flat
against her will.
143. The head of the MMAD platoon carefully inspected the scene,
gathered information about the layout of Lefteris Andronicou's flat and
was fully briefed about the events preceding his arrival. He was also
in possession of all the information which had been made available to
him subsequently or which he had himself acquired. That the sole aim
of the operation was to save Elsie Constantinou's life was proven by
the fact that no explosives were used to break through the door and no
stun grenades were thrown. The use of a water hose, multiple entries
or an observer by the skylight would not have been advisable in the
circumstances.
144. The armed intervention was planned for around midnight in the
hope that Lefteris Andronicou could be persuaded to release Elsie
Constantinou. The head of the MMAD platoon had relied on surprise,
quickness and accuracy to ensure success for the armed intervention.
No disproportionate importance should be attached to the fact that some
of the expert witnesses would have planned the armed intervention in
another manner. The test to be applied was whether the head of the MMAD
platoon had planned the armed intervention in a "reasonable" manner,
which he had done.
145. Lefteris Andronicou was not taken by surprise because of an
unauthorised telephone call which he received just before the armed
intervention. Lefteris Andronicou could have answered the phone without
lifting the receiver, by activating the loudspeaker facility. When the
first officer of MMAD entered the flat he found Lefteris Andronicou
hiding behind Elsie Constantinou and pointing a gun at him. Lefteris
Andronicou fired two shots, one at the agent of MMAD and one at Elsie
Constantinou. The Commission of Inquiry did not accept expert testimony
to the effect that the second shot was not aimed at Elsie Constantinou.
146. The Commission of Inquiry rejected the suggestion that the
officers entered the flat with the intention to kill Lefteris
Andronicou out of vengeance. It also considered that the officers of
MMAD could not exclude the possibility that the second bullet in
Lefteris Andronicou's gun had not been used, because the two shots had
been fired immediately one after the other. When the officers entered
the flat, they did not see whether Lefteris Andronicou was still
carrying his gun. Moreover, the possibility could not be excluded that
Lefteris Andronicou could be in possession of other weapons. As a
result, the Commission of Inquiry did not consider it necessary to
determine whether Lefteris Andronicou's gun could have accidentally
fallen on the armchair where it had been eventually found. The officers
saw Elsie Constantinou in front of Lefteris Andronicou her back turned
at the door. She moved together with Lefteris Andronicou and, as a
result, they considered that he was using her as a shield.
147. The officers were justified in their decision to start shooting
as soon as they entered the flat, because they were under the
impression that their lives and that of Elsie Constantinou were in
danger and this was "normal". As long as Lefteris Andronicou moved,
they considered that the threat persisted. They shot repeatedly at
Lefteris Andronicou's torso and head, as they had been trained to do
in order to neutralise him as quickly as possible. Twenty-nine bullets
were used. When Elsie Constantinou fell on Lefteris Andronicou's right
shoulder, her body left part of his torso and his pelvis uncovered. All
shots were fired in a very short period of time and that explained why
the last two bullets penetrated Lefteris Andronicou's body when his
back or part of it was very close to or already touching the ground.
The situation was comparable with that in the McCann, Farrell and
Savage case where the European Commission considered that firing nine
shots against a person lying on the ground engaged no responsibility
when the aim of the person firing was to neutralise a perceived risk.
No inferences could be drawn from the exercise by one officer of MMAD
of his right not to incriminate himself.
148. The Commission of Inquiry considered that, taking into
consideration the explanations the state pathologist provided when he
appeared before it, he was right in considering that the wounds
inflicted on Elsie Constantinou by the pellets fired from Lefteris
Andronicou's gun contributed to her death. Although Dr. A.C. Hunt had
a different view, he specified that "it would be also a matter for the
surgeon who saw the wound in life". Dr. H. Fotiu also accepted that the
wounds inflicted by Lefteris Andronicou contributed to Elsie
Constantinou's death. However, he specified that Elsie Constantinou
would have died even if these wounds had not been inflicted.
149. The Commission considered that Elsie Constantinou was injured by
the officers of MMAD because "she had moved when they were shooting to
save her". In accordance with expert testimony, the presence of an
ambulance at the scene would not have made any difference to Elsie
Constantinou's fate.
150. In the light of all the above and relying, among others, on the
findings of the European Commission of Human Rights on the merits of
application No. 18984/91 McCann, Farrell and Savage v. United Kingdom,
the Commission of Inquiry concluded that the use of force by the
officers of MMAD, as a result of which Lefteris Andronicou and Elsie
Constantinou died, was no more than absolutely necessary for the rescue
of Elsie Constantinou and the self-defence of those who carried out the
rescue operation and fell within the exceptions of Article 7 para. 3
(a) of the Cyprus Constitution and Article 2 para. 2 (a) (Art. 2-2-a)
of the Convention. Neither was there any lack of due care in the
planning of the operation. Although no criminal acts had been committed
and the police could not be criticized in any way for its handling of
the case, the Commission of Inquiry recommended that the Government
should examine the possibility of making an ex gratia payment to the
families of the deceased, on the basis of the judgment of the European
Court of Human Rights of 26 April 1994 in the Diaz Ruano case.
J. Subsequent Developments
151. By letter of 28 September 1994 the Attorney General informed the
applicants' lawyer that, in the light of the findings of the Commission
of Inquiry, no criminal proceedings would be instituted in connection
with the deaths of Lefteris Andronicou and Elsie Constantinou. He
indicated, however, that he would propose to the Government the ex
gratia payment of "full and substantial compensation" to the heirs of
the two deceased.
152. On 26 October 1994 Lefteris Andronicou's former wife asked the
District Court of Paphos to appoint her, jointly with her lawyer,
administrator of Lefteris Andronicou's estate, in her capacity as
representative of the two underage children Lefteris Andronicou had
from his marriage with her. On 7 November 1994 the first and second
applicants entered a caveat arguing that the children's mother could
not be appointed administrator and asking the court not to take any
steps without notifying them.
153. On 18 January 1995 the first and second applicants instituted
proceedings before the District Court of Paphos against Lefteris
Andronicou's former wife and her lawyer. They asked that they be
appointed administrators of Lefteris Andronicou's estate.
154. On 17 May 1995 the Attorney General offered the applicants legal
aid for the proceedings before the Coroner in Paphos. A hearing had
been planned for 29 May 1995, which was, however, adjourned at the
request of the applicants' lawyer.
155. On 7 June 1995 the Attorney General informed the applicants'
lawyer that "the State (would) cover any advocates costs that the
dependants of the deceased may sustain if and when they decide to bring
a civil action for damages against anyone on the basis of the facts
which led to the tragic death of Elsie Constantinou and Lefteris
Andronicou".
156. On 20 July 1995 the Attorney-General withdrew both offers of
legal aid. No agreement for the payment of ex gratia compensation was
reached between the applicants and the Government.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
157. The Commission declared admissible the applicants' complaints
concerning the deaths of Lefteris Andronicou and Elsie Constantinou and
the lack of any real possibility of instituting proceedings for damages
in this connection.
B. Points at issue
158. The issues to be determined is, first, whether there has been a
violation of Article 2 (Art. 2) of the Convention and, secondly,
whether there has been a violation of Article 6 para. 1 (Art. 6-1) of
the convention.
C. As regards Article 2 (Art. 2) of the Convention
159. Article 2 (Art. 2) of the Convention provides:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling
a riot or insurrection."
1. General considerations
160. The Court in its McCann and others judgment of 27 September 1995
established the following general principles for the examination of
complaints under Article 2 (Art. 2) of the Convention, which the
Commission will apply, mutatis mutandis, in the present case:
"The Court's approach to the interpretation of Article 2
(Art. 2) must be guided by the fact that the object and purpose
of the Convention as an instrument for the protection of
individual human beings requires that its provisions be
interpreted and applied so as to make its safeguards practical
and effective.
It must also be borne in mind that, as a provision which
not only safeguards the right to life but sets out the
circumstances when the deprivation of life may be justified,
Article 2 (Art. 2) ranks as one of the most fundamental
provisions in the Convention - indeed one which, in peacetime,
admits of no derogation under Article 15 (Art. 15) . Together
with Article 3 (Art. 3) of the Convention, it also enshrines one
of the basic values of the democratic societies making up the
Council of Europe. As such, its provisions must be strictly
construed.
The Court considers that the exceptions delineated in
paragraph 2 indicate that this provision extends to, but is not
concerned exclusively with, intentional killing. As the
Commission has pointed out, the text of Article 2 (Art. 2) , read
as a whole, demonstrates that paragraph 2 does not primarily
define instances where it is permitted intentionally to kill an
individual, but describes the situations where it is permitted
to 'use force' which may result, as an unintended outcome, in the
deprivation of life. The use of force, however, must be no more
than 'absolutely necessary' for the achievement of one of the
purposes set out in sub-paragraphs (a), (b) or (c).
In this respect the use of the term 'absolutely necessary'
in Article 2 para. 2 (Art. 2-2) indicates that a stricter and
more compelling test of necessity must be employed from that
normally applicable when determining whether State action is
'necessary in a democratic society' under paragraph 2 of Articles
8 to 11 (Art. 8-2, 9-2, 10-2, 11-2) of the Convention. In
particular, the force used must be strictly proportionate to the
achievement of the aims set out in sub-paragraphs 2 (a), (b) and
(c) of Article 2 (Art. 2-2-a, 2-2-b, 2-2-c).
In keeping with the importance of this provision in a
democratic society, the Court must, in making its assessment,
subject deprivations of life to the most careful scrutiny,
particularly where deliberate lethal force is used, taking into
consideration not only the actions of the agents of the State who
actually administer the force but also all the surrounding
circumstances including such matters as the planning and control
of the actions under examination" (Eur. Court H.R., McCann and
others judgment of 27 September 1995, to be published in Series A
no. 324, paras. 146-150).
161. Moreover, in its opinion on the merits of the same case the
Commission made the following statement concerning the evaluation of
evidence:
"(T)he Convention organs in the exercise of their
supervisory jurisdiction are not in any formal sense bound by the
domestic decisions but must examine the circumstances of a case
as a whole to determine whether the justifications adduced are
compatible with the provisions of the Convention" (McCann and
others v. United Kingdom, Comm. Report 4.3.94, para. 176).
162. The Court agreed (McCann and others judgment cited above,
para. 171). It added the following considerations, which the Commission
will follow as well:
"The Court, in determining whether there has been a breach
of Article 2 (Art. 2) ..., is not assessing the criminal
responsibility of those directly or indirectly concerned. In
accordance with its usual practice therefore it will assess the
issues in the light of all the material placed before it by the
applicants and by the Government or, if necessary, material
obtained of its own motion" (McCann and others judgment cited
above, para. 173).
2. The obligation to protect the right to life by law in Article 2
para. 1 (Art. 2-1)
163. In their application form the applicants submitted that the laws
of Cyprus on the use of lethal force were vague and general and that
this constituted a violation of Article 2 (Art. 2) of the Convention.
However, they did not pursue the particular point in their written
observations or in their oral submissions at the hearing.
164. As a result and in the absence of any further substantiation, the
Commission considers that there has been no failure to comply with the
first sentence of Article 2 para. 1 (Art. 2-1) of the Convention.
3. Requirements of Article 2 para. 2 (Art. 2-2)
165. The applicants submit that the force used was more than
"absolutely necessary" in the particular circumstances. They contend
that no recourse to force was necessary to resolve a domestic dispute
between two persons who were engaged to be married. Alternatively, they
argue that the operation was not planned in a manner which would have
minimised the need for the use of lethal force. They also argue that
the two officers who fired against Lefteris Andronicou and Elsie
Constantinou used excessive force.
166. The Government submit that the force used by the police was no
more than absolutely necessary for the purposes set out in Article 2
para. 2 (a) and (b) (Art. 2-2-a, 2-2-b) of the Convention for the
reasons stated in the report of the Commission of Inquiry.
167. The Commission recalls that the use of force which results, even
as an unintended outcome, in the deprivation of life gives rise to a
violation of Article 2 (Art. 2) of the Convention if it is more than
absolutely necessary for the achievement of one of the purposes set out
in the second paragraph of the provision. It also notes that the
operation in the context of which the two deaths occurred was mounted
in order to rescue Elsie Constantinou who was held at gunpoint by
Lefteris Andronicou and to arrest the latter. Moreover, the two
officers claim to have opened fire in order to defend themselves and
Elsie Constantinou after Lefteris Andronicou had used his gun.
168. It follows that the applicants' complaints concerning the deaths
of both Lefteris Andronicou and Elsie Constantinou must be examined
under Article 2 para. 2 (a) and (b) (Art. 2-2-a, 2-2-b) of the
Convention. In particular, the Commission must examine whether the
Cypriot authorities planned and controlled the operation to rescue
Elsie Constantinou so as to minimise, to the greatest extent possible,
recourse to lethal force and create the least possible risks for the
life of Elsie Constantinou. It must also examine whether the force used
by the two officers, the bullets of whom hit Lefteris Andronicou and
Elsie Constantinou, was no more than absolutely necessary in order to
defend Elsie Constantinou and themselves from unlawful violence and
effect a lawful arrest.
i. Planning and control of the operation
169. The applicants point to a number of shortfalls in the planning
and control of the operation. They argue that no force at all was
necessary to resolve a domestic dispute. The decision to break into the
flat was taken prematurely, before all other methods of persuasion were
exhausted. The police did not know that Lefteris Andronicou and Elsie
Constantinou were engaged and consistently referred to the abduction
of a young woman. The negotiations were conducted by unqualified and
untrained police officers as well as unauthorised persons against the
background of a large crowd which had been allowed to gather on the
scene. As a result, Lefteris Andronicou was at one stage threatened
with beating. No psychologist was involved. No proper records were kept
and no follow-up was secured.
170. The applicants submit that the police wrongly assumed that
Lefteris Andronicou was planning to kill Elsie Constantinou at
midnight. They relied on Lefteris Andronicou's various "idle" threats
and the "rash" statements of a general practitioner and chose to ignore
several indications pointing in the opposite direction. If Lefteris
Andronicou truly intended to kill Elsie Constantinou he had ample
opportunity to do so before midnight. Elsie Constantinou had been seen
walking out of the flat on the morning of 24 December 1993. On several
occasions Lefteris Andronicou expressed his concern about Elsie
Constantinou's well-being. Shortly before midnight, he indicated that
he intended to have a coffee.
171. The applicants point out that, although soporifics had been
administered at 23:35, the police did not wait for them to have effect.
The level of lack of coordination was such that the Special Forces were
not aware that drugs had been administered. Moreover, it was wrong to
involve the Special Forces who were trained to shoot to kill without
warning. The briefing and the instructions given were wholly
inappropriate. There was expert evidence that Lefteris Andronicou could
have been neutralised with water power from a fire engine.
172. Finally, the applicants contend that there was no element of
surprise, as the action of the Special Forces was planned very close
to the supposed deadline. The Special Forces entered through the front
door against a background of complete silence. Stun grenades should
have been used instead of tear-gas which does not produce effects
immediately. Finally, no ambulance was present at the scene of the
operation.
173. The Government submit that the operation was planned in the best
possible manner. They refer to the findings of the Commission of
Inquiry (see paras. 135-150).
174. The Commission will first examine the applicants' argument that
no recourse to force was necessary to resolve a domestic dispute
between two persons who were engaged to be married. The Commission
notes that the applicants' submissions before it appear to refer, inter
alia, to the view taken by the third and fourth applicants quite early
on the day of the incident when they invited the police to leave to
enable the family to deal with the problem on their own. It also notes
that Lefteris Andronicou had stated on many occasions that he was
afraid of the police and asked for their withdrawal.
175. The Commission considers, however, that it is inappropriate to
speculate as to how the situation might have developed, if the police
had adopted a lower profile during the incident. In the particular
circumstances, the police were reasonably entitled to believe that they
would have failed in their duty to protect Elsie Constantinou, if they
had not persisted in their efforts to obtain her release.
176. Having observed that, the Commission nevertheless has misgivings
about certain aspects of the planning and control of the operation
leading up to the rescue attempt. In particular, legitimate doubts may
be raised as to the coordination of the negotiations with Lefteris
Andronicou and the failure to involve psychologists or psychiatrists
in the negotiating process, as the authorities themselves had
considered necessary; the fact that a large crowd had been allowed to
collect at the scene; the failure to control all communications with
Lefteris Andronicou; the timing and implementation of the plan to
neutralise Lefteris Andronicou by introducing soporific drugs into his
food; the decision to delay the armed intervention until shortly before
the expiry of the "ultimatum" of Lefteris Andronicou, with the
consequent loss of the element of surprise; and the failure of the
authorities to ensure the presence of an ambulance at the scene,
notwithstanding the fact that the possibility of armed action had been
envisaged from the moment the order to mobilise the Special Forces was
given at 17h10.
177. However, in evaluating the way in which the rescue operation was
organised and controlled, the Commission considers it important to bear
in mind two factors. In the first place, the situation with which the
authorities were faced developed from a comparatively minor incident
into a crisis as the day went on. Whether or not the use of other
tactics could have defused the incident at an early stage, the
situation which confronted the authorities rapidly became one of the
utmost gravity - the holding of a young woman against her will by a man
who was armed and apparently unstable and who, by his words and
conduct, gave cause to fear that he intended to take Elsie
Constantinou's life and his own at midnight. In these circumstances the
authorities were presented with acutely difficult choices, each
carrying with it risks and disadvantages. In addition, the time
pressures and atmosphere of crisis in which the authorities were
required to operate made it likely that mistakes and errors of judgment
would occur. In the event mistakes clearly did occur and may have
contributed to the disastrous outcome of the rescue attempt.
Nevertheless, it would be wrong to conclude too readily and with the
benefit of hindsight that, because the rescue operation was or might
have been mishandled in certain material aspects, the operation had
been planned without due regard to the protection of human life.
178. Furthermore, the Commission notes that the events were the
subject of detailed examination at a domestic level by an independent
Commission of Inquiry in the course of which seventy-two witnesses were
heard under oath and were subjected to examination and cross-
examination by all interested parties. These included all police
officers responsible for planning and controlling the rescue operation.
It is apparent from the report of the Commission of Inquiry that
substantially the same criticisms were made of the planning of the
operation as are now advanced before the Commission. These criticisms
were for the most part rejected in the report. While the grounds for
rejecting certain of the criticisms may be open to question and while
the findings of the Commission of Inquiry cannot be determinative of
the Convention issues before the Commission, due regard must be paid
to these findings.
179. Nevertheless, even making allowances for the errors and omissions
which occurred, the Commission considers that in one fundamental
respect the authorities failed to plan and control the rescue operation
so as to minimise recourse to lethal force. The authorities in the
present case were not concerned with suspected terrorists or hardened
criminals but with a young couple involved in what had originated as
a domestic dispute. Moreover, the only weapon which Lefteris Andronicou
had been seen carrying and to which Elsie Constantinou had made
reference in her various pleas for help was a double-barrel hunting
gun. There was no good reason to support any belief that Lefteris
Constantinou might have other weapons in his possession. Further, the
flat in which Elsie Constantinou was being held was small, consisting
of two rooms and a bathroom. It was accordingly clear that to open fire
in such a confined space was especially hazardous.
180. In these circumstances the decision to use officers of the
Special Forces who had been trained to shoot to kill when they
perceived themselves to be in danger and to equip them with machine
guns when effecting entry to the flat carried with it a very obvious
risk of injury or death not only to Lefteris Andronicou but to Elsie
Constantinou herself. This risk was further increased, having regard
to the fact that the officers concerned had been informed that, in
addition to the double-barrelled hunting gun, Lefteris Andronicou could
be in possession of other weapons.
ii. The actions of the officers Nos. 2 and 4
181. The applicants submit that the two officers of the Special Forces
who fired the bullets which hit Lefteris Andronicou and Elsie
Constantinou used force which was excessive in the particular
circumstances. The two officers fired, without warning, twenty-nine
bullets in a small room against two unarmed civilians. According to the
applicants, Lefteris Andronicou was killed out of vengeance for having
superficially wounded an officer of the Special Forces. If the officers
believed that Lefteris Andronicou had not fired his second bullet, they
should have tried to lure him into using it. All the bullet wounds
which were found to Lefteris Andronicou's body were above waist level
and some bullets were fired while he was already lying on the ground.
Lefteris's second shot was not directed at Elsie Constantinou. The
wounds Lefteris Andronicou caused to Elsie Constantinou did not
contribute to her death. Elsie Constantinou died because of two wounds
inflicted on her by the officers of the Security Forces.
182. The Government submit that the officers used force which was no
more than absolutely necessary in the circumstances of the case. They
refer to the findings of the Commission of Inquiry (see paras. 135-
150).
183. The Commission notes that the Commission of Inquiry did not
determine with precision what happened when the officers of the Special
Forces entered Lefteris Andronicou's flat. Neither did it determine at
which stage of the armed intervention Elsie Constantinou's death
occurred.
184. The Commission notes that Lefteris Andronicou received at least
twenty-five bullets. There was a large number of wounds to his chest
and head. According to expert evidence, some of these bullets were
fired when he was already lying on the ground. Officer No. 2 testified
that he had been trained to shoot to kill when shot at and that he
stopped shooting when he was sure that Lefteris Andronicou was no
danger for him or Elsie Constantinou. The Commission considers, on the
basis of the above, that the two security officers consciously acted
in a manner which inevitably resulted in Lefteris Andronicou' death.
185. The Government argue that the actions of the officers were
absolutely necessary on the basis of the findings of the Commission of
Inquiry which concluded that the two officers were acting in accordance
with their perception of the risk. The two officers knew that Lefteris
Andronicou had a hunting gun which could contain two bullets and had
heard him firing only one bullet. Moreover, they had been instructed
that the possibility could not be excluded that Lefteris might be in
possession of other arms.
186. It is clear that the two officers opened fire in response to the
two shots which were fired by Lefteris Andronicou. The Commission notes
in this regard that it was accepted by the Commission of Inquiry that
the two shots from Lefteris Andronicou's gun were fired so close to
each other in point of time that the officers reasonably believed that
Lefteris had not discharged the bullet of the second barrel. It also
appears from the evidence before the Inquiry that when officer No. 1
fell back bringing officer No. 3 down, the impression was that officer
No. 3 was dead and officer No. 1 seriously injured (see testimony of
officer No. 2 in para. 89).
187. The Commission is unable to accept the applicant's submission
that Lefteris Andronicou was killed out of revenge. It is however,
accepted that the officers' belief that Lefteris Andronicou had caused
the death of one colleague and the serious injury of another provoked
a reflex response involving a use of force which in the circumstances
would almost inevitably result in the death not only of Lefteris
Andronicou but of Elsie Constantinou herself, the very person for whom
the rescue operation had been mounted. The number of bullets fired
indicates a response which, in the view of the Commission, lacked the
degree of caution in the use of firearms to be expected from law
enforcement personnel in a democratic society, even when dealing with
persons who are posing a threat to the lives of others (see mutatis
mutandis the McCann and others judgment, para. 212). The Commission
nevertheless considers that the responsibility for what occurred is to
a great extent due to the planning and control of the operation, which
by entrusting the rescue attempt to officers who were trained to shoot
to kill and by arming them with machine guns created in the
circumstances a foreseeable danger that there would be unnecessary
recourse to lethal force.
188. In these circumstances the Commission finds that the deaths of
Elsie Constantinou and Lefteris Andronicou resulted from the use of
force which was more than absolutely necessary in defence of persons
from unlawful violence or in order to effect a lawful arrest within the
meaning of Article 2 (2) (a) and (b) (Art. 2-2-a-, 2-2-b) of the
Convention.
189. Accordingly, the Commission finds that there has been a breach
of Article 2 (Art. 2) of the Convention.
CONCLUSION
190. The Commission concludes, by 15 votes to 3, that in the present
case there has been a violation of Article 2 (Art. 2) of the
Convention.
D. As regards Article 6 para. 1 (Art. 6-1) of the Convention
191. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by a ... tribunal ..."
192. The applicants submit that their financial situation is such that
they cannot bear the cost of civil proceedings in connection with the
deaths and that there is no legal aid system in Cyprus. Their lack of
sufficient means is proved by the fact that they had to rely on legal
aid in the proceedings before the Commission of Inquiry and the
Commission. The action instituted by the first two applicants against
Lefteris's former wife and her lawyer was very simple. The cost of a
civil action against the authorities for the deaths of their relatives
was, however, expected to exceed the cost of the proceedings before the
Commission of Inquiry which amounted to USD 70,000.
193. The Government submit that the applicants are not precluded from
instituting civil proceedings for damages. The first two applicants'
assertion that they did not have sufficient means is disproved by the
fact that they were able to institute proceedings against Lefteris's
former wife and her lawyer on the maximum scale known in Cyprus
entailing maximum legal fees. In any event, the social conditions and
the legal practice in Cyprus are such that no person has ever been
prevented from lodging a civil action as a result of the lack of a
legal aid system.
194. The Commission recalls that Article 6 para. 1 (Art. 6-1)
guarantees to litigants an effective right of access to the courts for
the determination of their civil rights and obligations (Eur.Court
H.R., Airey judgment of 9 October 1979, Series A no. 32, p. 15,
para. 26).
195. It is not disputed by the parties that the applicants required -
-de facto if not de jure- legal assistance for the institution of civil
proceedings for damages which would involve a determination of their
civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
196. The Commission further notes that the applicants had to rely on
legal aid for their participation in the proceedings before the
Commission of Inquiry and that they were at one stage offered legal aid
for the Coroner's inquest and for any civil proceedings they might have
wanted to institute in connection with the deaths of their relatives.
On this basis the Commission considers that the applicants are persons
in need of legal aid. As both parties accept, the laws of Cyprus do not
make provision for legal aid for the institution of civil proceedings.
197. However, on 7 June 1995 the Attorney General informed the
applicants' lawyer that "the State (would) cover any advocates costs
that the dependants of the deceased may sustain if and when they decide
to bring a civil action for damages against anyone on the basis of the
facts which led to the tragic death of Elsie Konstantinou and Lefteris
Andronikou". This offer remained valid until 20 July 1995, when it was
withdrawn. The applicants had for more than a month the possibility to
institute civil proceedings for the deaths of their relatives by
accepting the Attorney General's offer. It follows that they could have
had effective access to the courts for the determination of their civil
rights and obligations.
CONCLUSION
198. The Commission concludes, by 12 votes to 6, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
E. Recapitulation
199. The Commission concludes, by 15 votes to 3, that in the present
case there has been a violation of Article 2 (Art. 2) of the Convention
(see para. 190).
200. The Commission concludes, by 12 votes to 6, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention (see para. 198).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
(Or. English)
PARTLY CONCURRING AND PARTLY DISSENTING OPINION
BY MR. L. LOUCAIDES
I agree with the findings of the majority of the Commission
regarding the violation of Article 2 of the Convention in this case.
However, I believe that I must place on record my position that an
objective test of state responsibility as explained in my dissenting
opinion in the McCann, Farrell and Savage Case is the correct test in
examining responsibility under the Convention.
It seems that in the above mentioned case the Court did not
address its mind to the specific legal question of whether state
responsibility under the Convention should be objective or subjective.
In deciding such question regard must be had to the provisions
and objectives of the Convention as well as to the relevant principles
of international law. The terms of the Convention do not appear to
allow room for the application of the subjective responsibility
concept: they do not condition the obligation of the High Contracting
Parties to secure the human rights defined in the Convention so as to
depend on the good or bad faith of the parties; mistakes or errors do
not seem to have a place as a justification or defence for failing to
secure the rights in question.
Article 1 of the Convention provides:
The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in
Section 1 of this Convention."
Article 2 of the Convention as far as it relates to the present
case provides:
"1. Everyone's right to life shall be protected by law
....
2. Deprivation of live shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
......".
The formulation of the above rules support the view that the test
of whether there is a breach of the obligations set out therein is
objective. A violation should be considered as sufficiently established
if it is proved that the State concerned has actually caused the
interference with the right or failed to secure it, in circumstances
that do not satisfy strictly the conditions of any permissible
justification prescribed in the Convention. It is useful to add here
that the Court in the McCann, Farrell and Savage Case confirmed the
interpretation of the Commission that the text of Article 2, read as
a whole, demonstrates that paragraph 2 does not primarily define
instances where it is permitted intentionally to kill an individual,
but describes the situations where it is permitted to "use force" which
may result, as an unintended outcome, in the deprivation of life.
Objective responsibility rests on the doctrine of the voluntary
act: provided that agency and causal connection are established there
is a breach of duty by result alone. To be contrasted with this
approach is the subjective responsibility concept (the "fault"
principle) which rests upon proof of guilty intention ("dolus") or
negligence on the part of the State agents concerned as a prerequisite
for State responsibility. In the case of objective responsibility
defences such as good faith, lack of negligence or bona fide reasonable
mistakes do not exoranate the State and consequently they are
irrelevant. In international law nowadays doctrine and practice support
the objective theory and this is right taking into account the
practical need for an effective application of international law.
The special nature of the Convention, i.e. that the obligations
provided therein "are essentially of an objective character, being
designed rather to protect the fundamental rights of individual human
beings from infringement by any of the High Contracting Parties than
to create subjective and reciprocal rights for the High Contracting
Parties themselves", is not a sufficient basis to distinguish the
Convention for the purposes of the question in issue from other norms
of international law which govern rights and obligations between
States; the obligations under the Convention remain obligations of
international law in the nature of "a collective guarantee by the High
Contracting Parties of the rights and freedoms set forth in the
Convention [for the maintenance of] the public order of Europe".
The fact that a mistake can exculpate the agents of the State
labouring under it from personal criminal responsibility under the
domestic law cannot be sufficient to exculpate also the State from
responsibility under the Convention. As rightly observed by the
Commission in the Ribitsch case "... criminal law responsibility
under the national legal systems should not be confused with the
international law responsibility under the Convention. The Commission
is only concerned with the latter".
In the Ireland v. United Kingdom the Commission applied the rule
imputing unauthorised acts of its agents to the State by express
reference to what prevails "in connection with responsibility under
international law generally".
In the light of the above, I hold the opinion that State
responsibility under the Convention should be governed by the same
principles which apply for the determination of State responsibility
under international law and that the objective test is the one that
should be applicable in this case.
Accordingly it is not necessary to examine whether the various
state organs involved in this case acted negligently or under a bona
fide reasonable mistake or not. These are matters pertaining to a
subjective test of responsibility; they may be relevant in examining
criminal or civil responsibility under the municipal law but they are
not relevant as regards responsibility under the Convention.
Having applied the objective test of responsibility on the facts
of the present case I have arrived at the same conclusions as the
majority of the Commission and I find that in the present case there
has been a violation of Article 2 of the Convention through the use of
lethal force which was not objectively justified as absolutely
necessary for any of the purposes set out in para. 2 (a) and (b) of
that Article.
However, I must state that even on the basis of the subjective
test of responsibility I would still come to the conclusion that
Article 2 was violated in this case for the reasons set out in the
Report.
As regards Article 6 para. 1 of the Convention I find myself in
disagreement with the majority.
The majority bases its conclusion that there has been no
violation of Article 6 para. 1 on the fact that the applicants had for
more than a month the possibility to institute civil proceedings for
the deaths of their relatives by accepting an offer on behalf of the
respondent Government to cover any costs of their advocates in respect
of such proceedings. This offer was withdrawn on 20 July 1995.
However, it is an undisputed fact that the offer in question was
not based on any scheme of legal aid under the laws of Cyprus as these
laws do not provide for legal aid for the institution of civil
proceedings. In effect the offer in question amounted to an offer for
an ex gratia payment which depended on the goodwill of the respondent
Government, i.e. the opponent of the applicants in the eventual
relevant civil proceedings. Such goodwill cannot be questioned.
Nevertheless, an ex gratia offer for legal aid, especially when it
originates from the other party of the relevant judicial proceedings,
by its very nature lacks the essential objective safeguards for an
effective legal aid, i.e. the grant by a body independent of the
parties to the proceedings of sums to meet the reasonable costs of the
proceedings in accordance with scales fixed by law and with the
possibility of judicial review in the event of a dispute. In other
words an effective legal aid presupposes that it is regulated by law
and that if the relevant conditions are satisfied it can be claimed as
of right and not ex gratia.
For the above reasons, I find that in the absence of a legal
right of the applicants to an effective legal aid, the applicants have
no effective right of access to the courts for the determination of
their civil rights and obligations and, therefore, in the present case
there has been a violation of Article 6 para. 1 of the Convention.
(Or. English)
PARTLY DISSENTING OPINION BY MR. C.L. ROZAKIS
I have voted for a violation of Article 6 para. 1 of the
Convention. I note in this connection that the Attorney General's offer
was addressed to "the dependants of the deceased". However, there is
no indication that the applicants fall within this category of persons
(see, inter alia, the respondent Government's argumentation before the
Commission concerning the admissibility of the application). In any
event, this offer was later withdrawn.
(Or. English)
PARTLY DISSENTING OPINION BY MM. C.A. NØRGAARD AND G. JÖRUNDSSON
We have voted against the finding of a violation of Article 2 in
the present case for two reasons.
First, the Commission has found that there is no violation of
Article 6 because the applicants had the possibility of bringing a
claim for compensation in a civil case, in other words they had a
remedy which they did not use, therefore we do not find that local
remedies have been exhausted.
Secondly, with regard to the merits of Article 2 we have joined
Mr. Schermers's dissenting opinion.
(Or. English)
PARTLY DISSENTING OPINION BY MR. H.G. SCHERMERS
As the Court held in McCann, Article 2 is not concerned
exclusively with intentional killing. The article will be infringed
also when accidental killing comes about with the use of force which
is disproportionate to its aim. Had the action in the present case
been for a purpose other than saving the life of Elsie Constantinou,
or had it been known that Lefteris Andronicou was unarmed, then the
force used would have been excessive and the killings contrary to
Article 2.
The question whether the use of force in the present case was
absolutely necessary must be seen in the light of the information
available to the police at the time. The police knew that Lefteris
Andronicou was armed and they were convinced that after midnight he
would use his gun for killing himself and possibly Elsie Constantinou.
With the majority of the Commission I agree that mistakes have
been made by the Police. In hindsight it is easy to find mistakes. It
is obvious that ambulances should have been ordered earlier and that
officers number 2 and 4 were insufficiently qualified for their tasks.
In hindsight it would have been better if the police had abstained from
any action. In hindsight it would have been better if Dormicum had been
administered instead of Lorezabam, or if the Lorezabam pills had been
administered half an hour earlier. Someone should have thought about
drugs earlier and they should have been prepared earlier.
I find it difficult, however, to classify the mistakes made by
the police as infringements of Article 2. Considering the situation at
the time and the facilities available, limited as they were (both with
respect to material and to human experience and capacities), I can
accept that the authorities considered that the use of force to defend
a person from unlawful violence was absolutely necessary. In my opinion
Article 2, para. 2 (a) is applicable. Infringement of Article 2 is a
serious matter. However deplorable the present case may be I find
insufficient fault with the Cypriot authorities for accusing Cyprus of
infringement of this article. Account should also be taken of the fact
that an investigation was made by a Commission of Inquiry, which had
the opportunity to hear witnesses and to visit the location and which
concluded that the force used was necessary under the circumstances at
the time.
One may severely criticise the Cypriot authorities for arming the
police with a machine gun. I find it difficult, however, to consider
this armament as an infringement of Article 2? Would then not all
armament be contrary to Article 2? Seen from the angle of human rights
this position may well be defended. All armament potentially infringes
the right to life. Under the European Convention on Human Rights,
however, armament - and even excessive armament - is not prohibited.
Heavy armament of the police is not only for the purpose of killing.
It is also to strengthen the self confidence of the policemen and it
may have a deterrent effect.
In paras. 180 and 187 the Commission seems to criticise the fact
that policemen were trained to shoot to kill. However, this rule
applies only against an opponent who is shooting at the policeman. It
is a harsh rule, but I see little alternative. A person shooting at the
police should be stopped immediately. Any delay is of mortal danger to
the policeman. Warning shots, or even shots in the leg or belly risk
another bullet against the police.
With respect to Article 6 para. 1 of the Convention, I share the
opinion of the majority of the Commission.
(Or. English)
PARTLY DISSENTING OPINION BY MM. J.-C. GEUS and C. BÎRSAN
We have voted in favour of a violation of Article 6 para. 1 of
the Convention for the reasons indicated in the partly dissenting
opinions of MM. C.L. ROZAKIS and L. LOUCAIDES.