THIRD SECTION
CASE OF XENOFONTOS AND OTHERS v. CYPRUS
(Applications nos. 68725/16, 74339/16 and 74359/16)
 
 
 
JUDGMENT
Art 6 § 1 (criminal) • Fair hearing • Applicants’ murder conviction decisively based on confession by accomplice, who was not prompted by any deal, but was later placed in a witness protection programme and spared prosecution, not rendering trial unfair • Length of proceedings, five years and nine months, justified by complexity of case
 
STRASBOURG
25 October 2022
 
FINAL
 
06/03/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Xenofontos and Others v. Cyprus,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Georges Ravarani, President,
Georgios A. Serghides,
Darian Pavli,
Anja Seibert-Fohr,
Peeter Roosma,
Andreas Zünd,
Frédéric Krenc, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the applications (nos. 68725/16, 74339/16 and 74359/16) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Cypriot nationals, Mr Grigoris Xenofontos (“the first applicant”), Mr Anastasis Krasopoulis (“the second applicant”) and the latter’s sister, Ms Elli Krasopouli Skordelli (“the third applicant” – collectively “the applicants”), on 21 November and 1 December 2016;
the decision to give notice to the Cypriot Government (“the Government”) of the complaints concerning the use of accomplice evidence at the applicants’ trial and the length of that trial, and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 27 September 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case mainly concerns the question whether a criminal trial can be considered to be “fair” within the meaning of Article 6 of the Convention if it led to a conviction based to a decisive extent on accomplice testimony. THE FACTS
2. The applicants were born in 1981, 1973 and 1968 respectively and are currently serving life sentences in the Central Prison of Nicosia. They were represented before the Court by Mr R. Vrahimis and Mr C. Paraskeva, lawyers practising in Nicosia. 3. The Government were represented by their Agent, Mr G. Savvides, Attorney-General of the Republic of Cyprus. 4. The facts of the case, as submitted by the parties, may be summarised as follows. THE MURDER OF A.H. 5. In December 2009 the police received a tip-off about a murder-for-hire plot against an executive of a private television channel. The informant said that the murder would be carried out by two men, one of them being F.H., who was known to the police. The police alerted A.H., the channel’s CEO, but he saw no reason for concern. 6. On 11 January 2010 A.H. was shot dead near his home as he was leaving his car after a day in the office. 7. Later the same evening the police received another tip-off suggesting that the shots had been fired by F.H. ARREST AND QUESTIONING OF F.H., HIS PRESENTATION TO THE ATTORNEY-GENERAL AND THE FIRST APPLICANT’S DEPARTURE TO MOLDOVA
8. On 12 January 2010 the police questioned F.H. on two occasions about the murder. He denied any involvement, claiming that he had been elsewhere at the time. 9. More evidence against F.H. was gathered, and on 14 January 2010 the police arrested him and took him into custody at Pera Chorio Police Station. 10. On 15 January 2010 the police received information about the possible involvement of the first applicant in the murder. On the same day, the first applicant took a flight to Moldova and an arrest warrant was issued in respect of him. 11. On 17 January 2010 at 5 p.m., two investigators questioned F.H. as a suspect. They told him that they knew of his possible involvement in the murder but that they had no strong leads. They also told him that they could not see any personal motive for F.H. to kill the victim because, unlike F.H. himself, the victim had no connection with the criminal underworld or illegal activities and thus was unlikely to have had any differences with F.H. The investigators observed that F.H. became agitated each time they mentioned the victim’s good character. They also sensed that F.H. was regretting being caught up in a situation that could affect his family and himself. 12. Convinced that F.H. knew details of the crime but was afraid to speak, the investigators offered to protect him as a witness. F.H. hesitated over the offer because he mistrusted the investigators and would have preferred to talk to someone whose word carried more weight. His lawyer warned him of the implications of entering the witness protection programme. 13. The investigators reported their impressions of the suspect to their superiors and suggested that a meeting between F.H and the Attorney‑General be arranged. The Chief of Police spoke with the Attorney‑General, who agreed to the meeting. At about 11 p.m. the investigators took F.H. to the office of the Chief of Police in Nicosia. While the men were waiting for the Attorney-General, one of the investigators encouraged F.H. to take the opportunity to ask the Attorney-General whatever questions he had. At some point, the Attorney-General walked in and said to F.H.: “Tell the truth, son, and you won’t lose anything. Whoever tells the truth never loses.” In less than a minute he walked out, followed by the Chief of Police. F.H. did not report his fears to the Attorney-General or make any request. The investigators drove F.H. back to his cell. 14. Despite having met with the Attorney-General, F.H. still had reservations about testifying. He asked whether he would be expected to give a deposition. The investigators replied that he could simply start talking and if his first statements proved true, the investigators would formally ask the Attorney-General to protect him as a witness. 15. On 18 January 2010 the investigators secured evidence disproving F.H.’s alibi. They confronted him with that evidence, but he still refused to break his silence. The investigators sensed that he was struggling with himself. F.H.’S DECISION TO GIVE EVIDENCE AGAINST THE APPLICANTS
16. On 21 January 2010 F.H. told the investigators that he could no longer endure the pangs of conscience which he was experiencing and would testify. He did not ask for anything in return. He told the investigators how he had become involved in the murder and discussed with them how his forthcoming revelations and protection as a witness would change his life and that of his family. F.H. announced his decision to his lawyer and refused his further services. 17. F.H. dictated his confession to two investigators. He said that the murder had been masterminded by the second and third applicants, brokered by A.G. and carried out by the first applicant and himself; the first applicant had shot A.H. and F.H. had driven the getaway motorcycle. 18. F.H. asked what would happen to him and his family now that he had confessed. The investigators replied that they could only comment on the safety of his family, and that the decision concerning F.H. himself would be taken by the Attorney-General. They did, however, explain that, depending on the value of his testimony, the Attorney-General could request that F.H. be given a non-custodial sentence or a prison sentence with possible parole, or could even refrain from prosecuting him altogether. 19. After checking the confession against other evidence at their disposal and consulting their superiors, the investigators suggested that instead of prosecuting F.H., the Attorney-General could use his testimony as evidence for the prosecution. They argued that F.H. had spoken freely, was ready to repeat his statements at the trial and had not tried to diminish his role or that of his accomplices, and that pursuing the organisers of the crime would better serve society. This suggestion was recorded in a police activity log (ημερολόγιο ενεργείας) and later discussed in person with the Attorney‑General in his office. The investigators confirmed to the Attorney‑General their impression that F.H. was telling the truth and that he feared for his safety, having received a threat while in detention. 20. On 28 January 2010 F.H. was placed in a witness protection programme. 21. On 5 February 2010 the Attorney-General decided not to prosecute him. INSTITUTION OF CRIMINAL PROCEEDINGS AGAINST THE APPLICANTS
22. On 19 February 2010 the prosecuting authorities brought a case against the three suspects whom they had been able to arrest: the second and third applicants and A.G. The case against the first applicant was suspended pending his extradition from Moldova. 23. On 14 June 2010 the first applicant was arrested in Moldova. 24. On 18 August 2010 he was extradited to Cyprus and placed in detention. 25. On 25 August 2010 a new case was brought, this time against all four suspects, and was referred to the Nicosia Assize Court. THE APPLICANTS’ TRIAL
26. On 25 October 2010 the four co-defendants were committed for trial (case no. 19325/2010) before the three-member Nicosia Assize Court. 27. The first applicant and A.G. each had personal counsel and the second and third applicants shared a group of four counsel. 28. The prosecution relied on F.H.’s testimony. The defendants pleaded not guilty and alleged that F.H. and the police had fabricated his testimony to falsely implicate them in the crime. They asserted that F.H. had been the shooter, not the getaway driver, and that he was seeking to shift the blame onto them in exchange for witness protection and being spared prosecution. They also argued that F.H. was seeking to exonerate his two friends and his girlfriend, who were also implicated in the murder, and that the actions of the police, in their turn, had been based on “extraneous motives” (αλλότριων στοχεύσεων). 29. On 9 November 2010 the hearing stage began. 30. Throughout the trial, the court held 280 hearings (some of them after working hours and during summer holidays), issued twenty-three interim decisions, inspected the scene of the crime, heard eighty-nine prosecution and sixty-one defence witnesses, and examined 905 exhibits, including audio‑ and video-recordings and forensic evidence. The full record of the trial exceeded 11,300 pages. 31. F.H. was cross-examined by all the defence counsel at twenty-one hearings amounting to a total duration of almost one month. 32. The proceedings were adjourned for forty-one days because one of the judges was on a diplomatic mission abroad. They were also adjourned on account of absences of defence counsel. 33. On 13 May 2012 the court closed the hearing stage. JUDGMENT OF THE NICOSIA ASSIZE COURT
34. On 13 June 2013 the Nicosia Assize Court delivered a judgment in which it found the defendants guilty of murder and sentenced them to life imprisonment. 35. The court found that F.H. was trustworthy, devoted to him fifty of the almost 400 pages of the judgment, and relied on his testimony to a “most decisive” (καθοριστικότερο) extent. The court stated:
“F.H. answered with exemplary stability and detail on every aspect he was asked about, in a manner that clearly showed a person who was telling the truth. He remained literally unshaken in his very long, very demanding and exhaustive cross-examination. He was disarmingly genuine, vivid and figurative in his descriptions, which he gave in a simple and unpretentious manner ... He referred to facts and details that only someone who had actually experienced them could relate, thereby excluding any possibility that they might have been a figment of the imagination or, as was alleged many times and at every opportunity, the product of collaboration or direction, either by the investigators or those identified as the real moral perpetrators, whoever they were. His testimony was also characterised by spontaneity and readiness ... [This court has] dealt with all the examples that the defence submitted without identifying anything that points to false or extraneous motives on the part of the witness or, incidentally, to any divergence from accepted police practice and the realities for the effective and speedy resolution of a crime – [the police] always showed respect for the rights of the suspects and the defendants ...”
36. The court disagreed with the defence that F.H.’s trustworthiness was undermined by his history of unlawful behaviour (misconduct during military service and convictions for illegal possession and use of firearms and assault). 37. Regarding the circumstances of his confession, the court found:
“Nothing that was said to [F.H.] by the Attorney-General, the Chief of Police or the investigators could ... be interpreted as encouragement – through promises, exchanges or otherwise, in any unlawful sense – to tell anything but the truth or to falsely testify for any other purpose ...
[The statement that] the Attorney-General ... made to [F.H.] was a simple yet meaningful piece of empirical wisdom ...
[T]here is nothing special, from a legal point of view, in the Attorney-General’s choice not to prosecute [F.H.] for the offences for which he prosecuted [the applicants] ...”
38. The court explained that F.H.’s denial of his involvement in the murder at the initial police interviews had been a “perfectly normal, human reaction” to being accused of a crime. 39. The court explained F.H.’s decision to testify by
“... his determination to tell the truth to the investigators, having realised the great evil he had committed and after having weighed and calculated all the possibilities and options that were available to him ...”
40. The court found that, among other things, its use of the accomplice testimony was justified by the Court’s case-law (referring to X v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports (DR) 7, p. 115). 41. Because F.H.’s testimony was not corroborated by any other evidence, the court issued a “self-warning” (αυτοπροειδοποίηση), stating that it was approaching that evidence with “caution, suspicion, consideration and attention of the highest degree”. The court found it possible to rely on that testimony “with absolute safety”, stating:
“[The testimony is] one solid whole without cracks or contradictions, and juxtaposes details such that only someone who had actually experienced all [the events] could describe them in the way and to the extent that [F.H.] did ...”
42. In addition to F.H.’s testimony, the court relied on the testimony of three “very important” (πολύ σημαντικούς) witnesses: the defendants’ friends who testified, in sum, about having been approached with the proposal to carry out the murder, about having lent a motorcycle helmet to F.H., about the defendants’ movements and emotional state. The court also relied on material evidence and evidence of the applicants’ motives for killing A.H. (personal gain, revenge and a desire to take control of the television channel concerned). THE APPEAL PROCEEDINGS
43. On 14 June 2013 the defendants lodged appeals with the Supreme Court. 44. On 23 July 2013 the court received the trial record. 45. Between October 2014 and February 2016, the court held six directions hearings at which it allowed counsel for the second and third applicants to amend the grounds of their appeals, granted counsel for the first applicant extra time to submit his grounds of appeal, set and postponed deadlines for the filing of skeleton arguments (διάγραμμα αγόρευσης) by the parties and granted the applicants’ counsel extra time to correct page-number references in their submissions. 46. There were seventy-two final grounds of appeal, the main one being the perceived unfairness of the use of the accomplice testimony. 47. On 16 and 17 March 2016 the Supreme Court heard the appeals and reserved its judgment. JUDGMENT OF THE SUPREME COURT
48. On 6 June 2016 the Supreme Court delivered its judgment, dismissing the appeals (nos. 103/2013, 102/2013 and 101/2013) and upholding the sentence. 49. The court found that the trial court’s assessment of F.H.’s testimony had not been arbitrary or unreasonable and that it had been lawful and justified not to prosecute F.H. 50. The court also found that the use of his testimony had not rendered the trial unfair. Domestic law permitted the trial court to rely on F.H.’s confession alone. But the trial court had gone further and tested that confession in multiple rounds of “tug of war” (διελκυστίνδες) with other evidence, such as that concerning the pre-operational surveillance of the victim, the perpetrators’ escape route, modification of the motorcycle used by them and dozens of other details. 51. The court found that F.H. had confessed of his own volition and that the Attorney-General’s words to him did not suggest any improper dealings. RELEVANT DOMESTIC LAW
52. Article 113 § 2 of the Constitution provides:
“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 for an offence against any person in the Republic.”
THE LAW
JOINDER OF the APPLICATIONS
53. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION concerning the use of accomplice testimony
54. The applicants complained that their trial had been unfair, as the only evidence against them had come from an accomplice who had been spared prosecution. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilityThe Government

55. The Government argued that the complaint was manifestly ill‑founded. 56. They disagreed that F.H.’s confession had been the only evidence against the applicants. Just because the trial court had found no corroborating evidence did not mean that it had used no other evidence. Indeed, the domestic law distinguished between corroborating (ενισχυτική) and supporting (υποστηρικτική) evidence. Corroborating evidence proved that a crime had been committed and implicated the defendant, whereas supporting evidence reinforced witness testimony concerning the issues at stake. In addition to evidence given by F.H., there had been supporting evidence against the applicants. 57. However, even if F.H.’s testimony had been the only evidence, under domestic law its use would still have been lawful if the court had made clear, as the Assize Court had, its awareness of the inherent unreliability of such evidence. A trial where such testimony was used would also be “fair” from the standpoint of the Convention (the Government cited Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V; Habran and Dalem v. Belgium, nos. 43000/11 and 49380/11, 17 January 2017; and, by contrast, Adamčo v. Slovakia, no. 45084/14, 12 November 2019). 58. The Government submitted that F.H. and the prosecution had not struck a deal. They contended that F.H. had confessed out of remorse, without any inducement by means of promises of favours and after having been cautioned. The Attorney-General had done no more than make a hard choice in the public interest and refrain from exercising his constitutional prerogative to prosecute. 59. According to the Government, questions of the admissibility and evaluation of evidence were generally beyond the Court’s competence. The findings of the domestic courts had not been arbitrary and should not be altered. 60. They further submitted that the rights of the defence had been respected. The defence had known that F.H. had confessed, what he had confessed to, and that he would not be prosecuted (his name had not been listed on the charge sheet). F.H. had testified under his own name and had been cross-examined extensively. His written confession had been tested at the trial as well. The investigators who had worked with him had also been cross‑examined. If the applicants had also wished to cross-examine the Attorney-General, they could have asked the court to summon him. 61. Even after his confession, F.H. had been kept in custody for the time needed to verify his statements. Those statements had been verified at the trial as well. 62. Lastly, although domestic law did not provide for a separate judicial review of the Attorney-General’s decision not to prosecute, the Convention did not oblige the State to make such provision, and any possible improper dealings between the witness and the prosecution could be revealed at the trial. The applicants
(a)   The first applicant
63. The first applicant maintained his complaint. 64. He submitted that he had not had any motive to shoot the victim and that the shooter had probably been F.H. 65. F.H.’s confession – the only evidence against the first applicant – had been unreliable. F.H. was a person of bad character, his testimony had been inconsistent and the courts had failed to resolve those inconsistencies. 66. F.H.’s confession had been prompted not by remorse, but by the impunity promised by the Attorney-General. The two of them must have agreed a deal that was suspicious and unprecedented in the country’s legal history. That deal had not been put in writing and its details had remained unknown to the courts. 67. By deciding not to prosecute F.H., the Attorney-General had abused his discretion. His decision had served no public interest and had been neither regulated nor overseen by the courts. By letting a murder suspect walk free, the State had breached its obligations under Articles 2 and 3 of the Convention. (b)   The second and third applicants
68. The second and third applicants also maintained their complaint. 69. They submitted that the Government had misinterpreted the domestic judgments and had not understood the true evidentiary value of F.H.’s testimony and the other evidence. According to the applicants, there had been nothing but F.H.’s testimony against them. No amount of “self-warnings” issued by the trial court could alter the fact that the court had relied on that testimony. 70. Before confessing, F.H. had denied his guilt four times. The domestic courts had failed to account for that inconsistency, as required by Article 6 (the applicants cited Zhang v. Ukraine, no. 6970/15, 13 November 2018). 71. Cypriot law did not provide for a separate judicial review of the Attorney-General’s decision not to prosecute. Nor had the courts properly reviewed the Attorney-General’s decision during the applicants’ trial. 72. There had been no written record of the deal between F.H. and the prosecution. 73. The applicants argued that the Court’s case-law on accomplice testimony supported their position. There were important factual differences between their case and the cases in which no violation had been found (they referred to Cornelis and Habran and Dalem, both cited above) and similarities with a case in which a violation had been found (referring to Adamčo, cited above). The Court
74. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Outcome for Article 6: no_violation