Communicated on 7 September 2015

FOURTH SECTION

Application no. 67748/13 Georgios MELIKIDIS against Cyprus lodged on 27 September 2013

STATEMENT OF FACTS

The applicant, Mr Georgios Melikidis , is a Greek national , who was born in 1976 and lives in Limassol . He is represented before the Court by Mr L. Loucaides and Mr P. Kleovoulou , lawyers practising in Nicosia and Limasssol, respectively .

A. The circumstances of the case

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

1. The applicant ’ s detention

2. On 17 October 2003, the applicant visited the Civil Registry and Migration Department in Limassol in order to renew his residence permit in Cyprus. During his visit, it emerged that he was unlawfully residing in Cyprus. As a result, an order of detention was issued on the same day and the applicant was transferred by two police officers to Limassol Central Police Station where he was to be held pending his deportation .

3. Upon his arrival at the p olice s tation in Limassol, the applicant was transferred to an interview room where he was asked to hand over his personal belongings for storage. The applicant was also asked to remove his shoelaces and place them in a wooden box that was on a table in the interview room.

4. At this point, a scuffle ensued between the applicant and the two police officers who had been accompanying him , Special Constable G.G. and Constable S.T . In the subsequent domestic proceedings (see paragraphs 18 – 33 below) different accounts of the events as they unfolded in the interview room were provided by the police and the applicant.

5. According to the applicant he forcefully pulled his shoelace since it was not easy to remove. As a result , the shoelace snapped and he abruptly leaned backwards . T he police officers misapprehended his actions and G.G. grabbed him by the neck. When the applicant tried to escape, the incident got out of control . The applicant claimed that he did not at any point attack the police officers. He further claimed that, while he was on the floor , the police officers handcuffed him and one of the two officers kicked his face . As a result , his right eye was bruised. T he applicant also alleged that , in the police officers ’ attempt to restrain him, G.G. hit him on the head with the handcuffs. After the scuffle he was transferred to his cell and was only taken to the hospital three hours later by different police officers.

6. On the other hand, the two police officers claimed that , when they asked the applicant to remove his shoelaces , he reacted and started shouting. G.G. asked the applicant to calm down . The applicant kicked the wooden leg of a table that was inside the interview room . T he applicant then grabbed a wooden box that was on the table and hit G.G. on the shoulder with it . According to the police, the applicant then lifted the table and threw it on the floor. Subsequently, S.T. arrested the applicant for assaulting a police officer and the police officers handcuffed the applicant. However , the applicant managed to break the handcuffs and remove them from his left hand. The applicant then grabbed G.G. around the waist and pulled him towards him; as a result, the applicant and police officer fell to the ground with the applicant lying on his back underneath the police officer. During the fall, the applicant hit the corner of the table with the right side of his face and his right eye, and he later hit the back of his head on the ground. After the fall the applicant was handcuffed , although he continued to resist, kicking both officers . H e was then transferred to his cell.

7. The Chief of Limassol Police Station was informed of the incident on the same day by the only other police officer present at the station , Inspector G.T., who had attended the interview room after the scuffle and had witnessed the applicant bleeding . As a result, the Chief instructed the same police officer to investigate the circumstances leading to the incident.

8 . After the scuffle the police officers visited the accident and emergency unit at Limassol General Hospital where they were examined by the on-duty doctor who prepared a report recording their injuries. The doctor noted that G.G. had suffered minor injuries on his forearm, thumb and right knee. It does not appear that any notes were made on S.T.

9. Later that day , the applicant was also transferred to the same accident and emergency unit where he was examined and treated by the same on-call doctor . A report was prepared recording the applicant ’ s injuries and the treatment he received. T he report stated that the applicant suffered a hematoma to the right eye, two parallel wounds at the back of his scalp, both of which were 3 cm long and had to be stitched, and abrasions to his left shoulder.

10. On 18 October 2003 the applicant was taken again to the hospital by the police. He was examined by a doctor in the presence of a forensic pathologist. He was then returned to the police station.

11. On 19 October 2003, the applicant ’ s lawyer submitted a complaint at the Limassol Central Police Station alleging that the applicant had been ill ‑ treated by the two police officers. As a result, the Chief of Limassol Police Station appointed a n inspector in the same police unit, Inspector C.K., to investigate the applicant ’ s complaint.

12. On 20 October 2003 the applicant complained of headaches and dizziness and was therefore transferred to the accident and emergency unit at Limassol General Hospital. He was examined and found to have suspected post-concussion syndrome and was thus referred to a neurologist.

13. T he same day, the Chief of Limassol Police Station filed an indictment against the applicant with the Limassol District Court containing four counts. These were : assault occasioning actual bodily harm to G.G. ; obstructing a police officer in the implementation of his duties; criminal damage to property; publicly insulting the two police officers (the applicant ’ s trial and subsequent acquittal are summarised at paragraphs 18 ‑ 22 below) .

14. On 21 October 2003 a forensic pathologist was asked by the District Court to examine the two police officers as well as the applicant. The examinations were conducted in the presence of a photographer who took pictures of both the applicant and the police officers. A cardiologist of the applicant ’ s choosing was also present . The report that was prepared by the forensic pathologist included the observations of both doctors. A copy of the report has not been submitted to the Court.

15 . On 22 October 2003 the applicant was also examined by consultant neurologist. She found a bruise under the applicant ’ s right eyelid and abrasions on his left elbow. She did not find any objective neurological damage ; she did , however , diagnose the a pplicant as suffering from post ‑ concussion symptoms as described to her by the applicant.

16. On the same day the applicant ’ s family requested that the applicant be examined by a psychiatrist. As a result, the applicant was examined by a psychiatrist who prepared a report noting that the applicant had complained that his consciousness was diminished after the first blows and perhaps had suffered from a temporary lack of consciousness , which lasted for two hours , and he had difficulty recalling the facts of the incident. The psychiatrist suggested that the applicant should be placed in nursing care for a few days.

17. On 7 November 2003 the police investigation concluded and a report was prepared by Inspector C.K. His report concluded that there was no criminal behaviour on the part of the police officers.

2. The applicant ’ s trial before Limassol District Court (criminal application no. 15732/03)

18 . On 26 August 2005, the Limassol District Court acquitted the applicant on all counts, finding that the prosecution had not proved its case.

19. The court found that the police officers ’ account of the events was not credible. The court first noted that the police officers ’ statements were identica l and the structure, order, phraseology and description of events contained in them were similar . The court found that the police officers had consulted each other prior to drafting their statements and prior to giving evidence in court.

20. Second, the court observed that , as indicated in the accident and emergency doctor ’ s report of 17 October 2003 (see paragraph 8 above), the police officers suffered minor injuries during the scuffle . However, t he court dismissed G.G. ’ s allegations that he had suffered wounds as result of the fall on the ground and the applicant hitting him on the shoulder with the wooden box. The court excluded the possibility that police officer ’ s injuries were received on 17 October 2003 : G.G. had not mentioned these injuries to the doctor who treated him and they were not recorded in the doctor ’ s report . Nor were the injuries compatible with the applicant ’ s version of events or the forensic pathologist ’ s findings.

21. The court further noted that the pictures obtained of the room had been staged . Inspector G.T., the officer initially tasked with investigation the incident, agreed during cross-examination that the pictures had been taken on 21 October 2003, five days after the incident, despite having previously stated that the room was in use twenty - four hours per day. Additionally, the court took into account the fact that G.G. refused to admit that the applicant had been bleeding despite there being evidence supporting this fact.

22 . With reference to the report prepared by Inspector C.K, the court noted it was important that such investigations were independent and impartial. The court observed that, for that reason, it was important that such investigations were assigned to independent detectives or officers who served in different police units, who were not implicated in the events, or who were appointed by Police Headquarters. Therefore the court concluded that any conclusions reached in Inspector C.K ’ s report had no evidentiary value.

23. The court concluded that the applicant ’ s version of the events was more consistent with the facts of the case. According to the court, his injuries indicated that the force used by the police offices exceeded the reasonable force that might have been required to detain him . As a result the court found that the applicant ’ s actions were in self-defence , a conclusion that was consistent with the minor injuries suffered by the police officers.

3. Civil claim before the Limassol District Court (case no. 6941/03)

24 . In 2008 the applicant filed a civil claim with Limassol District Court against the Chief of Limassol Central Police Station, Inspector G.T. (the officer in charge of the investigation) , the two police officers involved in the incident and the Attorney General. He claimed special and general damages both in tort and for breach of his human rights as safeguarded by the Constitution and Law 23 5 /90 (as amended) (the law incorporating the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into Cypriot law): see relevant domestic law and practice at paragraph s 39 – 40 below.

25. In support of his claim t he applicant submitted , inter alia, a new forensic report prepared in 2008 by a private forensic pathologist , which support ed his claims. The report rejected the possibility that the applicant ’ s scars at the back of his head had been caused by direct impact with the floor , owing to the shape and form of the scars.

26. The applicant further claimed that the provisions of section 6 (1) of Law 235/90 (as amended) (according to which a person is presumed to have been abused by the police where he bears injuries which did not exist prior to his arrest: see paragraphs 39 – 40 below) we re applicable in his case.

27. The respondents rejected the applicant ’ s claims in their entirety : t he two police officers ’ version of events remained the same as the version they had given in evidence at the criminal trial.

28. On 15 January 2009 the court dismissed the applicant ’ s claims. In its assessment of the facts, the court noted that the applicant ’ s original statement , which he had given to the police on 19 October 2003 , was significantly different to the version he had given in his civil claim. For example , he now stated that, while he was lying on the ground unconscious, one of the police officers pulled his genitals. However, there was no mention of this in his original statement nor was there any such mention in the doctors ’ reports. The court also noted that , in his original statement , the applicant had stated , not that he was unconscious, but that he had started to calm down when the police officers stopped hitting him.

29 . The court also rejected the evidence of the forensic expert who prepared the 2008 report as it considered his evidence to be a weak basis for drawing conclusions as to the cause of the applicant ’ s injuries.

30 . The c ourt further observed that the police officers ’ evidence was truthful and consistent with the rest of evidence given during the civil trial. The only critical comment of the court on the police officers ’ testimony was that G.G. seemed evasive with regards to the blows he had received from the applicant, providing the court with an unclear version of the manner in which his injuries were caused. However, this did not lead the court to question the entirety of the poli ce officer ’ s version of events.

31. With reference to the investigation conducted by Inspector C.K., the court noted that the inspector was procedurally correct in the way he conducted the investigation : he had obtained written statements from all the individuals involved with the incident, he had obtained evidence from a forensic expert, and he had examined the interview room where the incident took place. According to the court, the only weakness in C.K. ’ s report was that he seemed to have evaluated the credibility of the individuals he had interviewed and perhaps had not acted impartially. This according to the court did not prove that he conducted the investigation with aim of reaching a pre-determined result. The facts of the case were not so clear that C.K. could have reasonably and objectively established the exact events that took place in the interview room.

32. According to the court, the police officers used reasonable force to restrain and detain the applicant and it was unlikely that the applicant ’ s injuries had been the product of a co o rdinated police attempt to conceal the applicant ’ s abuse.

33 . Lastly the court held that the appli cant ’ s complaints under Law 23 5 /90 (as amended) could not be applied in a civil claim against members of the police force , since , by virtue of section 6 ( 1 ) of the Law, it applied only to criminal proceedings.

4. The applicant ’ s appeal to the Supreme Court (application no. ‑ 89/2009)

34. The applicant appealed to the Supreme Court against the decision of the Limassol District Court .

35. He submitted inter alia that the District Court had erred in not applying the presumption created by section 6 ( 1 ) of Law 235/90 (as amended). This, when taken with the rest of the evidence in trial , had led the court wrongly to conclude that the applicant ’ s abuse by the two police officers had not been proven.

36. On 29 March 2013, the Supreme Court dismissed the appeal. The Supreme Court noted that the applicant did not appeal the district court ’ s finding that , by virtue of section 6 ( 1 ), the Law did not apply . For this reason, the Supreme Court did not examine the issues arising under section 6 ( 1 ) .

37. Second, the Supreme C ourt observed that the District Court was primarily responsible for the assessment of evidence in trial and the Supreme Court should only intervene where the lower court ’ s reasoning was in sufficient or where there were significant contradictions in the evidence . Having considered the District Court ’ s judgment, the Supreme Court found that this was not the case.

B. Relevant domestic law

1. The Constitution

38. The prohibition on torture or inhuman and degrading treatment or punishment is set out in Article 8 of the Constitution and is identical to Article 3 of the Convention.

2. Law 235/90 on the [United Nations] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (as amended by Law 36(III)/02)

39 . Section 3 and 5 of the above law criminalise, respectively, torture and cruel, inhuman or degrading treatment.

40 . Section 6(1) of the law provides:

“ For the purposes of sections 3 and 5, a person who was arrested or was otherwise detained is presumed to have been abused by a member of the p olice at the police station where he was detained, where it is established by a medical examination which is carried out either prior to his release or immediately after his release from the police station, that he bears any visible injuries which he did not have at the time of his admission to the police station . ”

COMPLAINTS

41. The applicant complains under Article 3 of the Convention that , while in custody, he was subjected to inhuman and degrading treatment.

Q UESTION S TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The Government are also requested to submit copies of:

- the report of Inspector C.K. (in this respect, the Government are requested to clarify whether any separate report was prepared by the officer initially tasked with investigating the scuffle , Inspector G.T, and, if so, to submit a copy of his report too);

- Inspector C.K. ’ s investigation file and any statements he took during his investigation;

- official photographs taken at the scene, if any, of the persons involved in the scuffle as well as any plans or diagrams;

- the report prepared by the forensic pathologist; and

- the minutes of the criminal and civil proceedings referred to in the attached statement of facts.