Resolution CM/ResDH(2013)104

Panovits against Cyprus

Execution of the judgment of the European Court of Human Rights

(Application No. 4268/04, judgment of 11 December 2008, final on 11 March 2009)

(Adopted by the Committee of Ministers on 6 June 2013 at the 1172nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(2013)43 4 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereo f.

ACTION REPORT (16 April 2013)

PANOVITZ v CYPRUS

Application No. 4268/04, Judgment of 11/12/2008, final on 11/03/2009

1. CASE DESCRIPTION

This case concerns three separate violations of the applicant ’ s right to a fair trial following his arrest in 2001 on suspicion of murder and robbery: (i) the lack of legal assistance during police questioning, violating Article 6§3(c) in conjunction with Article 6§1; (ii) the use at trial of the applicant ’ s confession obtained under police questioning, and; (iii) the trial court ’ s confrontation with the applicant ’ s lawyer during proceedings, the latter two violating Article 6§1.

The European Court noted that as the applicant was a minor and not assisted by a legal guardian, his questioning by the police should have been conducted with due regard to his vulnerability; therefore, “[t]he lack of provision of sufficient information on the applicant ’ s right to consult a lawyer constituted a breach of his defence rights.” (§73 of the judgment). The Court also found that the use in trial of the applicant ’ s confession obtained in such circumstances irreparably undermined his rights of defence (§86).

Finally, with regard to the trial court ’ s confrontation with the applicant ’ s defence lawyer, Mr Kyprianou, the European Court referred to its judgment in the case he had himself brought before it, Kyprianou v. Cyprus (No. 73797/01), which related to the same incident. During the proceedings the trial court engaged in various disagreements with the applicant ’ s lawyer, sentencing him to 5 days ’ imprisonment for contempt of court while he was conducting the defence. The European Court found that the trial court had failed to satisfy the requirements of subjective impartiality, and their interference with the conduct of the defence through the contempt proceedings and subsequent imprisonment of the applicant ’ s lawyer was disproportionate (§101).

2. INDIVIDUAL MEASURES

Following the trial, the applicant was convicted and sentenced to concurrent terms of 6 and 14 years in Nicosia Central Prison. The European Court stated that the applicant should “be put in the position that he would have been in had the requirements of [Article 6] not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested” (§103). As identified in the joint concurring opinion of Judges Spielmann and Jebens, there is currently no legislative provision in Cyprus setting out the procedure for reopening of domestic proceedings found to be unfair by the European Court.

The applicant was released, prior to the European Court ’ s judgment, on 4 November 2007, due to remission for good conduct under the relevant prison regulations. The applicant ’ s legal representation has stated that trial de novo or the reopening of proceedings offers no benefit to the applicant and has confirmed that the applicant does not seek the same. However, in case the applicant changes his mind and wishes in the future to have a de novo trial or a reopening of the proceedings he would benefit from the provisions of the reopening/re-examination Bill which has been prepared in light of the Kyprianou v Cyprus judgment, no. 7397/01 (the execution of which is under the supervision of the Committee of Ministers) and which has been tabled at the House of Representatives for adoption.

The applicant did not submit any claim for just satisfaction. Accordingly, the European Court did not award him any sum on that account.

3. GENERAL MEASURES

a) Violation of Article 6§3c in conjunction with Article 6§1 :

The European Court considered that given the applicant ’ s vulnerability as a minor subject to questioning without his legal guardian, the authorities did not provide sufficient information on the applicant ’ s right to consult a lawyer. The Court further noted that the authorities must take steps to “ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent” (§67).

(i) Law 163(I)/2005 – The rights of persons arrested and detained law

At the time of the facts, the Constitution and Criminal Procedure Law entitled arrested persons to the services of a lawyer and reasonable facilities for obtaining legal advice (§§38 and 43). Since then, these rights have been amplified by “The rights of persons arrested and detained law” (Law 163(I)/2005), which came into force on 30 December 2005. Section 3§1 provides that every person, immediately following arrest, has the right to communicate with their lawyer by telephone, and to communicate with a relative or other person. If under 18 years old, the arrested person has the right to inform a parent or guardian of his arrest or detention and place of detention. Every person has the right to be informed immediately following arrest, in a language they understand, of the above rights of communication and their place of detention. Under section 10, the questioning of persons under 18 years old must be conducted in the presence of their legal representative.

Details of when the arrested person is informed of his communication rights, when he/she expresses an intention to avail himself/herself of such rights, and when he/she exercises them, must be recorded in the interrogation file. If an arrested person does not seek to exercise such rights, this must be recorded in the interrogation file and signed by the arrested person (section 11).

In terms of obligations, there is an obligation on the arresting police officer to inform the arrested person of his communication rights and to provide every facility and practical means necessary to exercise such rights before questioning. A police officer who infringes any of the above rights to communication is liable to criminal and disciplinary sanctions, including imprisonment. Furthermore, any person whose rights under the Law are violated may bring civil proceedings against the state for compensation (section 36§1).

(ii) Practical application of Law 163(I)/2005

Law 163(I)/2005 forms part of the curriculum for police basic training (including special constables) at the Police Academy. They are taught and trained in all the provisions of the Law including those respecting the rights of minors and their relatives under the Law. The subjects taught include:

(a) places of detention for arrested minors (under the age of 18) and arrested women, (sections 20 ‑ 21 of the above Law);

(b) right to communicate with a lawyer and relatives (sections 3-9 and 11);

(c) interrogation of the arrestee in the presence of his/her lawyer (section 10);

(d) right of the arrested to have interviews with his lawyer (section 12, 14);

(e) right to send and receive letters (section 15);

(f) right to meet relatives (section 16-18);

(g) treatment and conditions of detention (section 19);

(h) pregnancy and breastfeeding while under arrest (section 22);

(i) right to medical examination (sections 23-28);

(j) list of rights (section 29);

(k) illegal arrest as a criminal offence (section 31);

(l) failure to inform the arrestee of the reasons for arrest as a criminal offence (section 32);

(m) criminal offences due to violation of rights (section 33);

(n) actionable right to compensation (section 36).

Teaching in the Law ’ s provisions includes participation in patrol incidents in which the Law ’ s provisions are applied in practice.

A list of the rights afforded by the Law (section 29) is handed personally to each arrestee, before being taken to a cell, and he/she signs to the effect that the list was handed to him/her. In addition, a list of the rights protected under the Law is displayed in a conspicuous place accessible to detainees in Greek and Turkish and in translations into English, French, Russian, Bulgarian, Chinese, Iranian, and Arabic.

Police officers are thus familiar with the Law ’ s provisions including those respecting minors, (under the age of 18) and how to implement them. Testimony is taken in the presence of the minor ’ s parents or guardian or of an officer of the Social Welfare Department. Furthermore, it is the practice of the police – respecting persons under the age of 16 – to inform the Social Welfare Department when an investigation is over and to prepare a socioeconomic report on the minor and his/her family, before the file is transmitted to the Attorney-General for decision as to whether to prosecute or not. Before the file is so transmitted, it is studied by a committee comprising of a representative of the police and the Social Welfare Department which recommends to the Attorney-General whether or not the minor should be prosecuted.

b) Violation of Article 6§1 in relation to the trial court ’ s confrontation with the applicant ’ s defence lawyer :

This issue is raised in the case of Kyprianou against Cyprus (application No. 73797/01, the execution of which is under examination by the Committee of Ministers).

c) Violation of Article 6§1 in relation to the trial court ’ s use of the confession obtained :

This was an individual error and can be rectified by publication and dissemination of the judgment to the relevant authorities.

d) Publication:

The European Court ’ s judgment was translated and published in the Cyprus Law Journal , 2009, second issue, p.136 and was inserted at the Government Agent´s (Human Rights Sector) website at www . law.g o v.cy .

4. CONCLUSION

The Republic of Cyprus has complied with its obligations under Article 46 paragraph 1 of the Convention and the Government invites the Committee of Ministers to close the examination of the case.