FOURTH SECTION

Application no. 24459/12 Hani Abdul KHANI KABBARA against Cyprus lodged on 29 March 2012

STATEMENT OF FACTS

The applicant, Mr Hani Abdul Khani Kabbara , is a Canadian national, who was born in 1984 and lives in Limassol . He is represented before the Court by Mr L. G. Loucaides , a lawyer practising in Nicosia .

A. The circumstances of the case

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

1. The alleged ill-treatment of 27 February 2011 as described by the applicant

On 27 February 2011, at about 9:30 a.m., while in front of an ATM machine of a bank in Limassol , the applicant was attacked from behind by a police officer, E.A.C.S., and was illegally arrested without a warrant. He was then taken to Limassol police station where he was detained for six hours. Throughout his detention he was handcuffed with his hands tied behind his back. Further, during this period, he was tortured by members of the police with the aim of forcing him to confess to the offence of theft through the use of a forged credit card. The applicant was repeatedly beaten with a wooden stick all over his body and his head until he lost his senses, beaten with a metallic chair while lying on the floor, punched on the body and face and kicked and punched on the head, nose and on the mouth causing one of his teeth to break. He also received blows to “the region that the police officers had been informed that he had been operated”. The above acts were accompanied by death threats. Furthermore, the police officers did not let him use his asthma medicine and refused to take him to hospital. He was taken only after the intervention of his lawyer.

2. Treatment in hospital

At around 3.30 p.m. the same day, the applicant was taken to hospital because of his injuries. He overheard the police officers telling the doctor that he had fallen on the ground. One of the police officers then took the doctor aside and started talking to him in private. The applicant also claims that he was not given painkillers by the doctor until the consul of Canada in Cyprus visited him. The consul asked the attending doctor the reasons for which the applicant had ended up in hospital and was in such a bad condition. The doctor informed her that there was nothing wrong with the applicant and that he had simply examined his pancreas. No other explanation was given.

3. Medical examination by a private practitioner

The applicant submitted that in spite of the difficulties caused to the consul by the police, she managed to organise a medical examination for the applicant by a private practitioner. The report, which is dated 10 May 2011, stated as follows:

“I visited the patient on the 7 th of March 2011 in the central police station of Limassol . He was complaining of multiple injuries causing him severe pain which did not allow him to come to rest especially at night.

During my clinical examination carried out on that day, the patient had restriction in motion due to pain especially during maximal flexion and extension of the lower back. He had pain sensation during the palpation of the soft tissue without any external injuries observed. Further he had a bruise measuring 10 x 5 cm at the left side of the chest at the auxiliary line height which gave him pain during palpation, compression and maximal inspiration.

Mr Kabbara further had restriction of motion and muscular tension at the cervical spine region without any pathologic neurologic observation. The patient had a loss of half the left upper incisor tooth with no mobility dysfunction of the jaw.

Due to the above injury, Mr Kabbara described sever pain especially in the evening which did not allow him to sleep. I subscribed him anti-inflammatory pain killers on a regular basis. If there was no response to the medication I advised him to contact me again”.

4. The applicant ’ s complaint against the police and the ensuing investigation

In a verbal note of 3 March 2011 the Canadian High Commissioner to Cyprus reported the ill- treatment of the applicant to the Ministry of Foreign Affairs.

The latter Ministry replied on 26 May 2011 and sent a police report on the matter. According to this the applicant was lying about what had happened and his allegations had been made for other purposes.

By a letter dated 14 July 2011 the applicant ’ s lawyer complained to the Attorney-General.

By a letter dated 15 July 2011 the Attorney-General referred the applicant ’ s complaint to the President of the “Independent Authority for the Investigation of Allegations and Complaints against the Police” (“IAIACAP”) and requested that an investigation be carried out as soon as possible

By a letter dated 21 July 2011 the President of the IAIACAP informed the Attorney-General that an investigator had been appointed.

By a letter of dated 4 August 2011 to the IAIACAP the applicant ’ s lawyer expressed his concerns about the delays in the investigation.

By a letter dated 5 August 2011 the President of the IAIACAP replied that it could not be said that there had been a delay and that, in any event, he had instructed the investigator to expedite the investigation.

By a letter of 12 October 2011 to the President of the IAIACAP , the applicant ’ s lawyer complained about the delays in the investigation.

On 26 January 2012 the IAIACAP ’ s findings were sent to the Attorney-General.

The applicant ’ s lawyer, by a letter dated 10 February 2012, asked the Attorney-General to inform him of the conclusions of the investigation.

By a letter dated 16 February 2012 the Attorney-General informed the applicant that he had decided, taking into account the findings of the criminal investigator and the IAIACAP itself on the matter, that on the basis of all the available evidence, the prosecution of any member of the police was not warranted.

The Attorney-General in his decision stated that it appeared from the evidence that police officer E.A.C.S. had asked the applicant, who at the time was at an ATM machine, for his particulars. The applicant had reacted and had hit the police officer in an attempt to flee. The applicant had explained his behaviour by stating that he had thought he was going to be robbed. The Attorney–General observed, however, that the police officer in question had been in uniform as had been the officer who subsequently came to help.

The Attorney-General further observed that the applicant ’ s explanations concerning his attempt to flee and the money found in his possession as well as his allegations as to the injuries sustained and the refusal of the doctor at the hospital to give him pain killers, did not correspond to the reality. Most of the applicant ’ s statement appeared to be imprecise and untrue. Police officer E.A.C.S. had not denied the use of force: following the applicant ’ s violent reaction he had used proportionate force in the circumstances in order to prevent him from fleeing until help arrived. As a result the applicant had been injured and had to be taken to hospital. The applicant had also described his torture by members of the police during his transfer to the police station and before the arrival of his lawyer. The latter, however, had refused to give a statement. The applicant ’ s allegations had been disputed by all the members of the police involved.

The Attorney-General concluded that on the basis of all the evidence, although a certain degree of force had been used against the applicant, this had been necessary in the circumstances in order to prevent the applicant from fleeing arrest. He therefore concluded that the prosecution of any member of the police was not justified and instructed that the file be closed.

By a letter dated 7 March 2012 to the Attorney-General, the applicant ’ s lawyer expressed his disappointment concerning the conclusions of the investigation and pointed out that no explanation had been given for the torture of the applicant during his detention in the police station while handcuffed and as a result of which he had ended up in hospital. He noted in this respect that the Canadian consul in Cyprus had ascertained the applicant ’ s bad condition whilst the independent medical report corroborated the applicant ’ s allegations.

5. Criminal proceedings against the applicant

It appears that the applicant was charged with theft, forgery and assaulting a police officer and that criminal proceedings are pending against him before the District Court of Limassol . The applicant is still in detention.

B. Relevant domestic law and practice

1. Investigation of complaints against the police

The IAIACAP was established in 2006 by Law 9(I)/2006 (as amended). The Law came into force on 17 February 2006.

The IAIACAP comprises five members, including the President, who are all appointed by the Council of Ministers. It started operating on 2 May 2006.

The IAIACAP can investigate complaints against the police in a number of areas, including those concerning violations of human rights (section 5(5) of Law 9(I)/2006). It can receive complaints directly from individuals, from the Attorney-General of the Republic, the Minister of Justice and Public Order or even the police authorities themselves when a complaint has been drawn to their attention.

In the event that the IAIACAP considers that a criminal offence has been committed, the complaint is sent on to the Attorney-General who has the authority to decide whether or not to instigate criminal proceedings against the police officers in question. In the event that the IAIACAP considers that a disciplinary offence has been committed, the complaint is sent to the Chief of Police. Following an amendment to Law 9(I)/2006 by Law 100(1)/2007 the IAIACAP can appoint external investigators from a list prepared by the Attorney-General. These investigators, who are not members of the police, remain under the constant supervision, control and guidance of the IAIACAP.

2. Powers of the Attorney-General

Article 113 § 2 of the Constitution of Cyprus provides as follows:

“The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.”

COMPLAINT

1. The applicant complains that he was subjected to treatment in violation of Article 3 of the Convention during his detention at the Limassol central police station on 27 February 2011 and that no effective investigation was carried out in this respect.

2. The applicant invokes Article 5 of the Convention but without further explanation or detail.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or inhuman or degrading trea tment on 27 February 2011, in breach of Article 3 of the Convention ?

2. Having regard to the procedural protection from torture or 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 required to provide a copy of the whole investigation file and any other relevant documents concerning the case, including the hospital reports recording the applicant ’ s injuries and CCTV footage in respect of the event in front of the ATM in Limassol .