PARTLY DISSENTING OPINION OF JUDGE LOIZOU

1. Once the Government's preliminary objection as to the non-exhaustion of domestic remedies by the applicant has been dismissed, I have no difficulty in agreeing with the conclusions reached by the majority as regards the breach of Article 3 of the Convention and the application of Article 41, and that there has been no breach of Article 5 §§ 1, 2, 3 and 4 and Article 6 § 1 of the Convention.

My disagreement with the approach of the majority of the Court relates, firstly, to the dismissal of the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies by the applicant under Article 35 § 1 of the Convention and, secondly, with the conclusion of the Court that there has been a violation of Article 13 of the Convention.

2. For a better understanding of my approach to the aforesaid two issues I shall try to give a brief outline of the relevant domestic law.

3. The administration of criminal justice in Cyprus for over a century and for that matter the Law of Criminal Procedure and the Law of Evidence have been modelled on and actually follow the accusatorial system of the English common law. These rules are embodied in the Law of Criminal Procedure, Chapter 155, and the Law of Evidence, Chapter 9, respectively. Under these provisions witnesses are examined, cross-examined and re-examined in court in the presence of the accused. They are now enshrined in Article 12.5 of the Constitution, which in fact is a reproduction of Article 6 § 3 of the Convention.

It is also a system in which the presumption of innocence is deeply rooted and it is, likewise, provided in Article 12.4 of the Constitution and Article 6 § 2 of the Convention. The burden of proof of the guilt of an accused person beyond reasonable doubt rests on the prosecution and the right of silence and non self-incrimination of a suspect or accused person at any stage of the proceedings is duly safeguarded.

4. Section 3 of the Law of Evidence, Chapter 9, introduces the English law of evidence. It provides that “every court in the exercise of its jurisdiction in any civil or criminal proceedings shall apply, as far as circumstances permit, the law and rules of evidence as in force in England on the 5th day of November 1914. ”

A basic principle of the Law of Evidence is the rule against hearsay. There exist certain exceptions to it, but none of them affects the present case. This rule has been precisely stated as follows: “An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.” This statement was explicitly adopted by the House of Lords in R. v. Sharp [1988] 1 All England Reports 68.

As stated in Cross and Tapper on Evidence , 8th edition, at p. 564: “The rule applies to all kinds of assertions, whether made orally, in writing or by conduct.”

The rationale of this rule is based, inter alia , on the faith in the power of cross-examination to test the accuracy of the testimony of the witness and his veracity. It is these weaknesses that led this Court to conclude that convictions were regarded as obtained contrary to the basic principles of justice even in jurisdictions where the hearsay rule does not exist, when the conviction was based on the evidence of an anonymous witness (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, and the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158). Furthermore, as this Court also held, statements made outside the public court hearing may be used as evidence, provided that the rights of the defence have been respected. As a rule those rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making the statement or at a later stage in the proceedings (see the Asch v. Austria judgment of 26 April 1991, Series A no. 203, and the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238).

In Cyprus there is no possibility, allowed by law, for admitting statements made by witnesses such as the aforesaid as a mode of proof of their contents. But even if there were such statutory exemption to the hearsay rule, permitting the production at the trial of the statement of the applicant sent to the Ombudsman, or statements made to other persons, the compensatory measures required under the case-law of this Court were not available in the present case.

It is scarcely necessary to recall that, besides other legal provisions, under section 9(5) of the Laws on the Ombudsman of 1991 to 1995, quoted in full in paragraph 52 of the judgment , no testimony or other statement given to the Ombudsman in the course of the inquiry can be used as evidence in another inquiry or procedure.

Therefore, the production at the trial of any such statements made by the applicant, instead of his sworn oral testimony before the trial court, was not permissible and would be ruled outright inadmissible; if admitted, the conviction would be reversed on appeal under well-established principles of law.

So it would have been futile to commence a criminal prosecution well knowing in advance that the only evidence, namely that of the applicant, with which to establish that the injuries of the applicant were caused by any particular officer or officers would not be available at the trial. This was clearly apparent from the whole conduct of the applicant himself and his refusal to cooperate with the Ombudsman at their meeting at the Ledra Palace. It was also apparent from his subsequent conduct regarding the haste with which he filed his application with the Commission without even waiting for the report of the Ombudsman.

His intentions not to have recourse to the domestic procedures as he had the duty to do under the Convention, besides everything else, can be clearly deduced from the answer given to the President of the Commission (see the verbatim record of 22 March 1999, pp. 24-25), which is recorded as follows:

“I didn't examine it but I have seen his report. The Ombudsman asked me: 'Would you like me to investigate the matter for you?' I told him that I would take my case to the European Court of Human Rights. That's what I told him. I said 'I was severely tortured on the other side. Whether or not you investigate for me is up to you but regardless of that, because of my victimisation, I will lodge a complaint at the European Human Rights Court'.”

5. The material part of the conclusion reached by the Court on this issue is in paragraph 72 of its judgment . It reads as follows:

“... the applicant, by lodging a complaint with the Ombudsman, discharged his duty under Article 35 § 1 of the Convention to afford the State concerned an opportunity to put matters right through its own legal system before having to answer before an international body for its acts. The only way of putting matters right in the circumstances of the case was the institution of criminal proceedings against the officers involved and, given section 6(9) of the Laws on the Ombudsman, a complaint to the Ombudsman should have normally brought about this result. ”

Before reaching this conclusion the Court in paragraph 70 of its judgment recalled, inter alia , that:

“The Convention only requires that there should be 'an investigation capable of leading to the punishment of those responsible'. In this sense, the Court considers that the competent authorities of the Republic of Cyprus would have discharged their obligations under the Convention by instituting criminal proceedings against the officers named in the Ombudsman's report, irrespective of the outcome of such proceedings”.

In accordance with the Court's conclusions as summed up above, there were two major steps that the competent authorities of the Republic were expected to have taken in order to meet their obligations under the Convention: (a) “an investigation capable of leading to the punishment of those responsible” and (b) “instituting criminal proceedings against the officers named in the Ombudsman's report, irrespective of the outcome of such proceedings”.

These conclusions are based on the well-established principles that have been summed up by the Court in paragraphs 64 and 65 of its judgment referring to the Aksoy v. Turkey judgment (18 December 1996, Reports of Judgments and Decisions 1996-VI) and Selmouni v. France ([GC], no. 25803/94, ECHR 1999-V). I fully agree with these two requirements of Article 3 of the Convention.

The first issue that arises from the above conclusion of the Court and on the basis of the principles discerned from its case-law was the proper investigation of the complaint of the applicant. In this connection the following undisputed facts are most relevant.

The applicant, before his release from prison, was encouraged by the Attorney-General, through the Director of Prisons, to submit his complaint to the Ombudsman. He was thus assured that his complaint was to be examined by an independent and impartial authority, other than the police itself which normally examined such complaints against any of its members through police officers not directly or indirectly involved in the incident complained of.

The applicant's complaint was indeed thoroughly investigated by the Ombudsman, who heard all available witnesses including the police officers involved in the arrest of the applicant. His report is a confirmation of the impartiality and objectivity of this officer, in spite of the unwillingness of the applicant to cooperate although a meeting was arranged at the Ledra Palace in the buffer-zone. In this report the Ombudsman found that there was a serious violation of human rights on the part of the police. The suspects were identified for the purposes of his inquiry and the acts perpetrated had been ascertained. Therefore the first leg of the obligations of the State to carry out an investigation was duly discharged in the best way possible. All the material to prove the ingredients of the relevant offences was collected and available.

As regards the second issue, namely the institution of criminal proceedings, in my view, what remained was the willingness and readiness of the applicant to give evidence so that the necessary charges against the suspects could be preferred. The officers identified in the Ombudsman's report denied that they committed any wrongful act. The very knowledge of the fact that the applicant was not at all willing to give evidence before the competent court of the Republic justified fully the Attorney-General in not filing charges before the court as the whole affair would have been not only an abuse of the process of the court but also a fiasco.

Unless there were to be a violation by the authorities of the Republic of the rights of the accused as safeguarded by express specific statutory constitutional and conventional provisions, there could be no further investigation and no fair trial without the most material witness, namely the complainant, whose testimony, the main and decisive evidence in the circumstances, would be heard in open court in the presence of the accused and cross-examined by them.

The applicant had been represented by three advocates practising in the Republic. One of them being a Greek Cypriot advocate who was asked to represent the accused from the very early stages of his arrest and appeared before the District Court on the hearing of the applications for remand orders for the purpose of police investigations concerning the offence allegedly committed by the applicant. He was so represented until his discharge from custody when the nolle prosequi was entered by the Attorney-General. Furthermore, the United Nations Peace Keeping Force was involved and provided an additional assurance that the applicant could have free and safe access to the courts of the Republic, although such a difficulty has not been suggested. Therefore no justification has been advanced by the applicant for his evident unwillingness to attend any future trial of the suspects.

The suggestion that the Attorney-General was not willing to institute criminal proceedings on behalf of the State is not borne out by the circumstances of this case and the conduct of the Attorney-General from the outset of the case, which may be summed up as follows.

(a) On hearing of the complaint of the applicant for violations of human rights he entered a nolle prosequi on 9 November 1995, thus terminating the criminal proceedings against the applicant for the charges of drug trafficking and so securing his immediate release from custody.

(b) He advised the applicant, through the Director of Prisons, to file a complaint with the Ombudsman, who has all the qualities of an independent and impartial investigator as this officer is in no way connected with the police or other section of the executive. This choice was indicative of the attitude of the Attorney-General, namely to have a real impartial investigation instead of referring the matter to the police for the usual investigation of complaints about misconduct of police officers.

(c) The report of the Ombudsman would be, as it was indeed, transmitted by virtue of the relevant Law to the highest powers of the State, namely the Council of Ministers, Parliament and the Attorney-General, a procedure that draws such publicity as to leave no room for hushing up any wrongdoing.

All these facts, coupled with the whole attitude of the applicant, leave no room to infer that the authorities assumed too readily that the applicant did not intend to cooperate .

The obvious reason was that the Attorney-General could not prosecute without being sure that the applicant would attend in court to give oral evidence in the presence of the accused, who has under Article 6 § 3 (d) of the Convention the right “to examine or have examined witnesses against him”.

Consequently the second leg of the State's obligation could not be discharged only because of the applicant's refusal to cooperate and his declared intention to take the case to this Court. Evidently it was through the applicant's choice that no proceedings had been instituted.

For all the above reasons I find myself unable, much to my regret, to agree with the other members of the Court that the preliminary objection should be dismissed.

6. The finding by the Court of a violation of Article 13 is obviously based on the same reasoning as that given for the dismissal of the preliminary objection. Therefore what has already been said in respect of that issue is applicable with equal force to this one.

In the case of Hasan and Chaush v. Bulgaria ([GC], no. 30985/96, ECHR 2000-XI), the Court in paragraph 96 reiterated its approach by saying, inter alia , that “The remedy required by Article 13 must be 'effective' in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions of the authorities of the respondent State”.

What has to be examined, therefore, is whether its exercise was unjustifiably hindered by acts or omissions of the authorities.

The Court in paragraph 100 of its judgment found a violation of this Article, after recalling in essence its findings set out in paragraphs 70 and 72 (to which reference has already been made in relation to the question of non-exhaustion of domestic remedies), that is that the only remedy that was appropriate for the kind of violation complained of was by ordering an investigation capable of “leading to the identification and punishment of the officers involved”. The Court went on to conclude that, “however, the Attorney-General, who is the official in charge of bringing criminal proceedings did not take any steps in this direction”.

This conclusion, viewed in the light of the totality of the facts in this case, places an unjustified burden on the Attorney-General, inasmuch as there was no question of any further investigation being carried out beyond that by the Ombudsman. The facts of the case had been ascertained with the assistance of the applicant and the alleged offenders identified by the investigation carried out by the Ombudsman. As these officers, however, denied having committed any wrongful acts and they were in law presumed innocent, their denials could be rebutted only by the oral testimony of the applicant. Criminal proceedings had to be instituted against them. They had to be given a fair trial and be found guilty by a court of law on admissible evidence. It was only then that they could be punished.

Moreover, even if criminal proceedings had been instituted, the applicant, because of his place of abode, could neither be served with a summons as a witness nor, in case he had been so served, could he be compelled to attend by having him arrested for failing to respond to such summons.

For all of the above reasons I am not able to concur with the majority and accept their conclusion that there has been a violation of Article 13.