ITEMID: 001-99015
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF GÄFGEN v. GERMANY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-3
JUDGES: Anatoly Kovler;Christos Rozakis;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Margarita Tsatsa-Nikolovska;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Sverre Erik Jebens;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 9. The applicant was born in 1975 and is currently detained in Schwalmstadt Prison, Germany.
10. J. was the youngest son of a banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister.
11. On 27 September 2002 the applicant lured J., aged 11, into his flat in Frankfurt am Main by pretending that the child’s sister had left a jacket there. He then killed the boy by suffocating him.
12. Subsequently, the applicant deposited a ransom note at J.’s parents’ place of residence stating that J. had been kidnapped and demanding one million euros. The note further stated that if the kidnappers received the ransom and managed to leave the country, then the child’s parents would see their son again. The applicant then drove to a pond located on a private property near Birstein, approximately one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty.
13. On 30 September 2002 at around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was under police surveillance. He paid part of the ransom money into his bank accounts and hid the remainder of the money in his flat. That afternoon, he was arrested at Frankfurt am Main airport with the police pinning him face down on the ground.
14. After having been examined by a doctor at the airport’s hospital on account of shock and skin lesions, the applicant was taken to the Frankfurt am Main police headquarters. He was informed by detective officer M. that he was suspected of having kidnapped J. and was instructed about his rights as a defendant, notably the right to remain silent and to consult a lawyer. He was then questioned by M. with a view to finding J. Meanwhile, the police, having searched the applicant’s flat, found half of the ransom money and a note concerning the planning of the crime. The applicant intimated that the child was being held by another kidnapper. At 11.30 p.m. he was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently indicated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake.
15. Early in the morning of 1 October 2002, before M. came to work, Mr Daschner (“D.”), deputy chief of the Frankfurt police, ordered another officer, Mr Ennigkeit (“E.”), to threaten the applicant with considerable physical pain, and, if necessary, to subject him to such pain in order to make him reveal the boy’s whereabouts. D.’s subordinate heads of department had previously and repeatedly opposed such a measure (see also paragraph 47 below). Detective officer E. thereupon threatened the applicant with subjection to considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts. According to the applicant, the officer further threatened to lock him in a cell with two huge black men who would sexually abuse him. The officer also hit him several times on the chest with his hand and shook him so that, on one occasion, his head hit the wall. The Government disputed that the applicant had been threatened with sexual abuse or had been physically assaulted during the questioning.
16. For fear of being exposed to the measures he was threatened with, the applicant disclosed the whereabouts of J.’s body after approximately ten minutes.
17. The applicant was then driven with M. and numerous other police officers to Birstein. He had refused to go with detective officer E. The police waited for a video camera to be brought to the scene. Then, the applicant, on the communicated order of the police officer in command and while being filmed, pointed out the precise location of the body. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. The applicant claimed that he had been obliged to walk without shoes through woods to where he had left the corpse and, on the orders of the police, he had had to point out its precise location. The Government disputed that the applicant had had to walk without shoes.
18. Upon forensic examination of the scene, the police discovered tyre tracks left by the applicant’s car near the pond near Birstein. Under questioning by detective officer M. on the return journey from Birstein the applicant confessed to having kidnapped and killed J. He was then taken by the police to various other locations indicated by him where they secured J.’s school exercise books, a backpack, J.’s clothes and a typewriter used for the blackmail letter in containers. An autopsy carried out on J.’s corpse on 2 October 2002 confirmed that J. had died of suffocation.
19. Having returned to the police station, the applicant was then permitted to consult his lawyer, En., who had been instructed to act on his behalf by his mother and who had tried, in vain, to contact and advise the applicant earlier that morning.
20. In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated that he believed that that morning J.’s life had been in great danger, if he was still alive at all, given his lack of food and the temperature outside. In order to save the child’s life, he had therefore ordered the applicant to be threatened by detective officer E. with considerable pain which would not leave any trace of injury. He confirmed that the treatment itself was to be carried out under medical supervision. D. further admitted that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the threat to the applicant was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had disclosed the whereabouts of J.’s body, having been threatened with pain, no measures had in fact been carried out.
21. A medical certificate issued by a police doctor on 4 October 2002 confirmed that the applicant had a haematoma (7 cm x 5 cm) below his left collarbone, skin lesions and blood scabs on his left arm and his knees and swellings on his feet. A further medical certificate dated 7 October 2002 noted that, following an examination of the applicant on 2 October 2002, two haematomas on the left-hand side of the applicant’s chest of a diameter of around 5 cm and 4 cm were confirmed, together with superficial skin lesions or blood scabs on his left arm, his knees and his right leg and closed blisters on his feet. According to the certificate, these discreet traces of injuries indicated that the injuries had been caused a few days before the examination. The precise cause of the injuries could not be diagnosed.
22. During subsequent questioning by the police on 4 October 2002, by a public prosecutor on 4, 14 and 17 October 2002, and by a district court judge on 30 January 2003 the applicant confirmed the confession he had made on 1 October 2002.
23. In January 2003 the Frankfurt am Main public prosecutor’s office opened criminal investigation proceedings against the deputy chief of the Frankfurt police, D., and detective officer E. on the basis of the applicant’s allegations that he had been threatened on 1 October 2002.
24. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged a preliminary application for the proceedings to be discontinued. The basis of his claim was that during interrogation and prior to confessing he had been threatened by detective officer E. with being subjected to severe pain and sexual abuse. He argued that this treatment had been in breach of Article 136a of the Code of Criminal Procedure (see paragraph 61 below) and Article 3 of the Convention and warranted the discontinuation of the proceedings against him.
25. The applicant also lodged an alternative preliminary application seeking a declaration that, owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all statements which he had made to the investigation authorities should not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the confession extracted – the so-called “fruit of the poisonous tree” – was prohibited (Fernwirkung).
26. On 9 April 2003, in response to the first preliminary application, the Frankfurt am Main Regional Court dismissed the applicant’s application for the discontinuation of the criminal proceedings. The court noted that in the applicant’s submission, detective officer E. had threatened that a specialist was on his way to the police station by helicopter who, without leaving any traces, would inflict on him intolerable pain the likes of which he had never before experienced, if he continued to refuse to disclose J.’s whereabouts. To underpin the threat, E. had imitated the sound of the rotating blades of a helicopter. E. had further threatened that the applicant would be locked up in a cell with two big “Negroes” who would anally assault him. He would wish that he had never been born. The court found as a fact that the applicant had been threatened with the infliction of considerable pain if he refused to disclose the victim’s whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The threat to inflict pain upon the applicant had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1 of the Basic Law (see paragraphs 59-60 below) and in violation of Article 3 of the Convention.
27. However, notwithstanding this breach of the applicant’s constitutional rights, the court found that the criminal proceedings were not, in consequence, barred and could proceed. It found that the use of the investigation methods in question, though prohibited in law, had not so restricted the rights of the defence that the criminal proceedings could not be pursued. In view of the seriousness of the charges against the applicant on the one hand, and the severity of the unlawful conduct during investigation on the other, there had not been such an exceptional and intolerable violation of the rule of law as to bar the continuation of the criminal proceedings.
28. In response to the applicant’s second preliminary application, the Frankfurt am Main Regional Court found that, in accordance with Article 136a § 3 of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge were inadmissible as evidence in the criminal proceedings because they had been obtained through the use of prohibited methods of interrogation.
29. The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code of Criminal Procedure by threatening the applicant with intolerable pain if he did not disclose the child’s whereabouts. Therefore, any statements which the applicant had made as a consequence of this forbidden investigative measure were inadmissible as evidence. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the unlawful threat. It covered all further statements which the applicant had made to the investigation authorities since that date in view of the continuous effect of the violation of Article 136a of the Code of Criminal Procedure.
30. The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that his earlier statements made as a consequence of the threat of pain could not be used as evidence against him. However, the applicant had only been instructed about his right not to testify, without having been informed about the inadmissibility of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) before making further statements.
31. However, the court limited the inadmissible evidence to the above-mentioned statements. It went on to dismiss the applicant’s application for a declaration that, on account of the prohibited investigation methods, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities as a consequence of the statements extracted from the applicant ought to be excluded from trial (Fernwirkung). The court found as follows:
“... there is no long-range effect of the breach of Article 136a of the Code of Criminal Procedure meaning that the items of evidence which have become known as a result of the statement may likewise not be used [as evidence]. The Chamber agrees in this respect with the conciliatory view (Mittelmeinung’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.”
32. Following the above ruling on the applicant’s preliminary applications lodged on the opening day of the trial, the proceedings continued. The next day, in his statement on the charges, the applicant admitted having killed J., but stated that he had not initially intended to do so. His defence counsel submitted that by confessing, the applicant wanted to take responsibility for his offence notwithstanding the interrogation methods used on 1 October 2002. As the trial proceeded, all further items of evidence found as a consequence of the applicant’s original statement and which the applicant sought to have excluded were adduced. At the close of the trial on 28 July 2003 the applicant admitted that he had also intended from the outset to kill the child. He described his second confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”.
33. On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity, warranting a maximum sentence (see paragraph 63 below).
34. The court found that at the hearing the applicant had been instructed anew about his right to remain silent and about the fact that none of his earlier statements could be used as evidence against him and had thereby been given the necessary qualified instruction. However, the applicant had, following the qualified instruction, confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court’s findings of fact. They were corroborated by the testimony of J.’s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant’s flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant’s confession at the trial. Further items of evidence showed that he had told the truth also in this respect. These included the findings of the autopsy as to the cause of the child’s death, the tyre tracks left by the applicant’s car near the pond where the child’s corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts.
35. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his 11-year-old victim and demanded one million euros in ransom in order to preserve his self-created image of a rich and successful young lawyer. It did not share the views expressed by the public prosecutor’s office and the private accessory prosecutors that the applicant’s confession “was worth nothing” as the applicant had only confessed to what had in any event already been proven. The fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it had been proved by the autopsy on J.’s corpse that the boy had been suffocated, and tyre tracks left by the applicant’s car had been detected at the place where J.’s body had been found.
36. The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the criminal investigations then pending against them. However, their allegedly illegal acts did not mitigate the applicant’s own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law.
37. On the day following his conviction, the applicant lodged an appeal on points of law with the Federal Court of Justice. He complained that the Regional Court, in its decision of 9 April 2003, had refused his preliminary application to discontinue the criminal proceedings against him. It had further refused to declare that the use in the criminal proceedings of all other items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements unlawfully extracted was prohibited. The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them. He further included a copy of the Regional Court’s decision of 9 April 2003 dismissing his application for the proceedings to be discontinued and argued in respect of the police’s threats of torture against him that, developing the case-law of the Federal Court of Justice, such conduct “leapt beyond” the exclusion of evidence and led to an impediment to the proceedings (dass ein derartiges Verhalten das Verwertungsverbot “überspringt” und ein Verfahrenshindernis begründet).
38. In his observations dated 9 March 2004 the Federal Public Prosecutor objected that the applicant’s appeal on points of law was manifestly ill-founded. He argued that the use of prohibited methods of interrogation did not lead to an impediment to the criminal proceedings. Article 136a of the Code of Criminal Procedure expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence. The applicant had not complained of a breach of Article 136a § 3 of the Code of Criminal Procedure. In any event, there would be no grounds for such a complaint as the Regional Court had only used the applicant’s confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence.
39. On 21 May 2004 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded.
40. On 23 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. Summarising the facts underlying the case and the content of the impugned decisions, he complained under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law about the way in which he had been questioned by the police on the morning of 1 October 2002. He argued that he had been threatened with being subjected to torture and sexual abuse if he did not disclose the child’ 104 § 1 of the Basic Law. It also violated his absolute right to human dignity under Article 1 of the Basic Law, which lay at the heart of the provisions in question. These unjustifiable human rights violations ought to have been a bar to the criminal proceedings for murder and a prohibition on using the evidence obtained as a consequence of the confession extracted from him by means of prohibited measures.
41. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, held that the applicant’s constitutional complaint was inadmissible.
42. Firstly, in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him, the court found that he had not sufficiently substantiated his complaint. It observed that the Regional Court had already stated that the police’s threat to inflict pain on the applicant had violated Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and that the applicant’s rights under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded.
43. However, the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court, which was based on the findings made during the trial, breached constitutional law. In the present case, the criminal courts had found that the methods of investigation used by the police had been prohibited, but had differed from the applicant as to the legal consequences that flowed from that finding. They had taken the view that the statements obtained as a result of the measures in question could not be used but that there was no bar to the specific criminal proceedings being pursued.
44. According to the Federal Constitutional Court, the procedural flaw of having used prohibited investigation measures could be regarded as having been remedied by the criminal courts, because they had prohibited the admission of the statements obtained thereby. Such a prohibition was prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to compensate for a prior infringement of the rights of the person concerned. However, the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law. In these circumstances, the applicant had failed to explain why the contested methods of investigation had not only required a prohibition on using the statements obtained thereby as evidence, but should also lead to a bar to criminal proceedings against him.
45. Secondly, the Federal Constitutional Court found that, in so far as the applicant complained that the Regional Court had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extracted under duress, his constitutional complaint was likewise inadmissible. It held that the applicant had failed to raise this issue in the proceedings before the Federal Court of Justice.
46. The decision was served on the applicant’s lawyer on 22 December 2004.
47. On 20 December 2004 the Frankfurt am Main Regional Court delivered judgments against the deputy chief of the Frankfurt police, D., and detective officer E. The court found that on the morning of 1 October 2002 D. had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file (see paragraph 20 above). By doing so, he had acted against the advice of all his subordinate heads of department entrusted with the investigation into J.’s kidnapping. The heads of department had opposed this measure, which D. had previously ordered on the evening of 30 September 2002 and then twice on the morning of 1 October 2002. The heads of department had resisted the orders, proposing instead further questioning and confrontation of the applicant with J.’s family. D. had then issued an order to detective officer E. directing him to comply with his instructions that the applicant should be threatened with torture and, if necessary, subjected thereto. The subjection to pain was to be carried out under medical supervision, without any traces being left, by another specially trained police officer, who would be brought to the police station by helicopter. A police doctor had agreed to supervise the execution of D.’s order. The court noted that the measure had been aimed at finding out where the applicant had hidden J., whose life D. believed was at great risk. Therefore, E. had threatened the applicant in the manner ordered by D. and had also informed him that a “truth serum” would be administered. After approximately ten minutes, the applicant confessed that he had hidden J.’s body under a jetty at a pond near Birstein.
48. The Regional Court observed that the method of investigation had not been justified. It rejected the defence of “necessity” because the method in question violated human dignity, as codified in Article 1 of the Basic Law. Respect for human dignity also lay at the heart of Article 104 § 1, second sentence, of the Basic Law and Article 3 of the Convention. The protection of human dignity was absolute, allowing of no exceptions or any balancing of interests.
49. The Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. However, in terms of penalty, it cautioned the defendant and imposed a suspended fine of 60 euros (EUR) per diem for 60 days, which the defendant would be required to pay if he committed another offence during the probation period. Furthermore, the court convicted the deputy chief of the Frankfurt police, D., of having incited E., a subordinate, to commit coercion in the course of his duties. It also cautioned D. and imposed on him a suspended fine of EUR 120 per diem for 90 days. The applicant had given evidence as a witness in these proceedings.
50. In determining the sentences, the Regional Court considered that there were significant mitigating factors to be taken into account. It took into consideration that the defendants’ sole concern had been to save J.’s life and that they had been under extreme pressure because of their respective responsibilities vis-à-vis the superior authority and the public. They had been exhausted at the relevant time and had acted in a very tense and hectic situation. They did not have any previous convictions. Moreover, D. had taken responsibility for his acts by admitting and explaining them in a note for the police file on the same day. The proceedings had lasted a long time and had attracted immense media attention. The defendants had suffered prejudice in their professional career: D. had been transferred to the Hessian Ministry of the Interior, and E. had been prohibited from acting in the prosecution of criminal offences. Furthermore, it was the first time that a conflict situation such as the one in the defendants’ case had been assessed by a German criminal court. The court took into consideration as aggravating factors that D. had not acted spontaneously as he had already directed the use of force on the evening before he had given the order to E. Moreover, by their acts, the defendants had risked compromising the applicant’s conviction for murder. The court further found that the preservation of the legal order did not warrant the enforcement of the fines imposed. Through the defendants’ criminal conviction it had been made clear that an order by a State agent to use force to obtain information was illegal.
51. The judgment became final on 20 December 2004.
52. Subsequently, D. was appointed chief of the Police Headquarters for Technology, Logistics and Administration.
53. On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid for bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised and in need of psychological treatment because of the methods deployed during the police investigation.
54. In its submissions dated 27 March 2006 the Frankfurt am Main police headquarters contested that E.’s conduct when questioning the applicant in the morning of 1 October 2002 was to be legally classified as coercion and amounted to a breach of official duties.
55. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid and the applicant appealed.
56. On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed, in particular, that police officers D. and E., when threatening the applicant, had infringed human dignity, which was inviolable, and had thus breached their official duties. However, the applicant would face difficulties establishing causation between the threats of torture and alleged mental damage allegedly necessitating psychological treatment. The officers’ threat was negligible compared to the traumatisation caused by the fact of having killed a child. Moreover, even assuming that the applicant would be able to prove that detective officer E. had shaken him, causing him to hit his head against a wall, or had once hit him on the chest, allegedly causing a haematoma, such physical damage would be too minor to necessitate the payment of compensation. Furthermore, the violation of his human dignity by the threat of torture did not warrant the payment of compensation since the applicant had obtained sufficient satisfaction for this by the exclusion of his statements as evidence and the criminal conviction of the police officers.
57. On 19 January 2008 the Federal Constitutional Court, allowing a constitutional complaint by the applicant, quashed the Court of Appeal’s decision and remitted the case to that court. It found that in refusing to grant the applicant legal aid, the Court of Appeal had violated the principle of equal access to court. In particular, that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage. In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation, during which he had been handcuffed, could be considered to be of minor importance. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had already obtained was a difficult legal question on which no precedent existed in a judgment of a court of final instance. It should, therefore, not be determined in an application for legal-aid proceedings.
58. The remitted proceedings are still pending before the Frankfurt am Main Regional Court.
59. Article 1 § 1 of the Basic Law, on the protection of human dignity, reads as follows:
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authorities.”
60. Article 104 § 1, second sentence, of the Basic Law, on the rights of persons in detention, provides:
“Persons taken into custody may not be subjected to mental or to physical ill-treatment.”
61. Article 136a of the Code of Criminal Procedure, on prohibited methods of interrogation (verbotene Vernehmungsmethoden), provides:
“1. The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited.
2. Measures which impair the accused’s memory or ability to understand and accept a given situation [Einsichtsfähigkeit] shall not be permitted.
3. The prohibition under sub-paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.”
62. According to Article 211 of the Criminal Code, the intentional killing of a person is to be classified as murder if certain aggravating elements are present such as cupidity, treachery or intent to cover up another offence. Murder is punishable by life imprisonment.
63. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, inter alia, have a bearing on a subsequent decision regarding suspension of the latter part of the defendant’s prison sentence on probation. Article 57a of the Criminal Code states that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, provided that this can be justified in the interests of public security and the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence.
64. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the United Nations Convention against Torture”), which was adopted by the United Nations General Assembly on 10 December 1984 (Resolution 39/46) and which came into force on 26 June 1987, provides:
“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
...”
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
“1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
...”
65. Several institutions which monitor observance of the prohibition of torture and of other inhuman or degrading treatment have addressed the question of the scope of that prohibition in the context of threats of subjecting a person to physical harm.
66. The Inter-American Court of Human Rights, in its judgment of 27 November 2003 (Merits, Reparations and Costs) in the case of Maritza Urrutia v. Guatemala (Series C No. 103), found:
“85. With regard to the treatment that the State officials afforded to Maritza Urrutia while she was unlawfully and arbitrarily detained, the court has considered proven that the alleged victim’s head was covered by a hood, she was kept handcuffed to a bed, in a room with the light on and the radio at full volume, which prevented her from sleeping. In addition, she was subjected to very prolonged interrogations, during which she was shown photographs of individuals who showed signs of torture or had been killed in combat and she was threatened that she would be found by her family in the same way. The State agents also threatened to torture her physically or to kill her or members of her family if she did not collaborate. To this end, they showed her photographs of herself and her family and correspondence from her to her former husband ... Lastly, Maritza Urrutia was obliged to film a video, which was subsequently broadcast by two Guatemalan television channels, in which she made a statement against her will, the contents of which she was forced to ratify at a press conference held after her release ...
92. An international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and, with regard to the latter, it has been recognised that the threat or real danger of subjecting a person to physical harm produces, under determined circumstances, such a degree of moral anguish that it may be considered ‘psychological torture’. ...
...
98. In light of the foregoing, the court declares that the State violated Article 5 of the American Convention [on Human Rights], in relation to Article 1 § 1 thereof, and the obligations established in Articles 1 and 6 of the Inter-American Convention against Torture, to the detriment of Maritza Urrutia.”
67. The United Nations Special Rapporteur for the Commission on Human Rights found in his report of 3 July 2001 to the General Assembly on the question of torture and other cruel, inhuman or degrading treatment or punishment (UN Doc. A/56/156) as follows:
“As stated by the Human Rights Committee in its General Comment No. 20 (10 April 1992), on Article 7 of the International Covenant on Civil and Political Rights, the Special Rapporteur would like to remind governments that the prohibition of torture relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim, such as intimidation and other forms of threats.” (paragraph 3)
He pointed out that “the fear of physical torture may itself constitute mental torture” (paragraph 7). Furthermore, the Special Rapporteur was of the opinion that:
“... serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even to torture, especially when the victim remains in the hands of law enforcement officials.” (paragraph 8)
68. The United Nations Human Rights Committee, in its Views adopted on 29 March 1983 in the case of Estrella v. Uruguay (Communication No. 74/1980), found as follows regarding the author of the communication, a concert pianist:
“The author was subjected to severe physical and psychological torture, including the threat that the author’s hands would be cut off by an electric saw, in an effort to force him to admit subversive activities.” (paragraph 8.3)
The Human Rights Committee held that the author had been subjected to torture in violation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (paragraph 10).
69. Materials before the Court show that there is no clear consensus in the States Parties to the Convention on the scope of the exclusionary rule.
70. The United Nations Human Rights Committee stated in its General Comment No. 7 on torture or cruel, inhuman or degrading treatment or punishment (Article 7 of the ICCPR) of 30 May 1982:
“1. ... it follows from Article 7, read together with Article 2 of the Covenant, that States must ensure an effective protection through some machinery of control. Complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation. Among the safeguards which may make control effective are ... provisions making confessions or other evidence obtained through torture or other treatment contrary to Article 7 inadmissible in court; ...”
71. General Comment No. 7 was replaced by General Comment No. 20 concerning prohibition of torture and cruel treatment or punishment of 10 March 1992. In the latter, it is stated:
“12. It is important for the discouragement of violations under Article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.”
72. The United Nations Committee against Torture, which monitors the implementation of the United Nations Convention against Torture, stated in its Concluding Observations on Germany of 11 May 1998 (UN Doc. A/53/44) as follows:
“The Committee recommends that further legislative attention be paid to the strict enforcement of Article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognisance of the deciding judges in all judicial proceedings.” (paragraph 193)
73. The prohibition on using, in any manner prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of State agents (the so-called doctrine of the “fruit of the poisonous tree”) is firmly rooted in the legal tradition of the United States of America (see, for instance, US Supreme Court, no. 82-1651, Nix v. Williams, decision of 11 June 1984, 467 US 431 (1984), pp. 441 et seq.; US Supreme Court, no. 82-5298, Segura v. United States, decision of 5 July 1984, 468 US 796 (1984), pp. 796-97 and 815; and US Supreme Court, no. 07-513, Herring v. United States, decision of 14 January 2009, 555 US ... (2009), part II. A., with further references). The prohibition applies to information obtained from coerced confessions (see, on the issue of coercion, US Supreme Court, no. 50, Blackburn v. Alabama, decision of 11 January 1960, 361 US 199 (1960), pp. 205-07, and US Supreme Court, no. 8, Townsend v. Sain, decision of 18 March 1963, 372 US 293 (1963), pp. 293 and 307-09), meaning that if the confession leads to additional evidence, such evidence is also inadmissible in court in addition to the confession itself (compare Nix, cited above, p. 441, and Segura, cited above, p. 804). The evidence is to be excluded, however, only if the illegality is the proximate cause of the discovery of the evidence. In other words, evidence will be excluded if it can be shown that “but for” the illegal conduct it would not have been found. The exclusionary rule does not apply where the connection between the illegal police conduct and the discovery of the evidence is so remote as to dissipate the taint. This is the case, for example, where the police relied on an independent source to find the evidence (see Nix, cited above, pp. 441-44, and Segura, cited above, pp. 796-97, 804-05 and 815, with further references) or where the evidence would ultimately or inevitably have been discovered even had no violation of any constitutional provision taken place (see Nix, cited above, pp. 441-44).
74. The exclusionary rule is also applied in other jurisdictions. The Supreme Court of Appeal of South Africa found in its recent judgment of 10 April 2008 in the case of Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51 as follows:
“Summary: The evidence of an accomplice extracted through torture (including real evidence derived from it) is inadmissible ...
...
33. ... The Hilux and the metal box were real evidence critical to the State’s case against the appellant on the robbery counts. Ordinarily, as I have mentioned, such evidence would not be excluded because it exists independently of any constitutional violation. But these discoveries were made as [a] result of the police having tortured Ramseroop. There is no suggestion that the discoveries would have been made in any event. If they had the outcome of this case might have been different.
34. Ramseroop made his statement to the police immediately after the metal box was discovered at his home following his torture. That his subsequent testimony was given apparently voluntarily does not detract from the fact that the information contained in that statement pertaining to the Hilux and metal box was extracted through torture. ... therefore, there is an inextricable link between his torture and the nature of the evidence that was tendered in court. The torture has stained the evidence irredeemably.
...
36. To admit Ramseroop’s testimony regarding the Hilux and metal box would require us to shut our eyes to the manner in which the police obtained this information from him. More seriously, it is tantamount to involving the judicial process in ‘moral defilement’. This ‘would compromise the integrity of the judicial process (and) dishonour the administration of justice’. In the long term, the admission of torture-induced evidence can only have a corrosive effect on the criminal justice system. The public interest, in my view, demands its exclusion, irrespective of whether such evidence has an impact on the fairness of the trial.
37. For all these reasons I consider Ramseroop’s evidence relating to the Hilux and metal box to be inadmissible. ...”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71671
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF KYPRIANOU v. CYPRUS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-a;Preliminary objection regarding Art. 10 dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza
TEXT: 14. The applicant was born in 1937 and lives in Nicosia.
15. He is an advocate who has been practising for over forty years. He was formerly a lawyer at the Office of the AttorneyGeneral and a member of the Cypriot House of Representatives.
16. On 14 February 2001 the applicant was defending a person accused of murder before the Limassol Assize Court. He alleged that, while he was conducting the cross-examination of a prosecution witness, a police constable, the court interrupted him after he had put a question to the witness. He claimed that he had felt offended and had sought permission to withdraw from the case. In their written observations, the Government stated that the court had attempted to make a routine intervention with a simple and polite remark regarding the manner in which the applicant was cross-examining the witness. The applicant had immediately interrupted, without allowing the court to finish its remark and refusing to proceed with his cross-examination.
17. The verbatim record of the proceedings reports the following exchange (translation):
“Court: We consider that your cross-examination goes into detail beyond the extent to which it should go at this stage of the main trial regarding questions...
Applicant: I will stop my cross-examination...
Court: Mr Kyprianou...
Applicant: Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case.
Court: Whether an advocate is to be granted leave to withdraw or not is a matter within the discretionary power of the court and, in the light of what we have heard, no such leave is granted. We rely on Kafkaros and Others v. the Republic and we do not grant leave.
Applicant: Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose.
Court: We consider your persistence...
Applicant: And I am sorry that when I was cross-examining the members of the Court were talking to each other, passing ravasakia among themselves, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the Court.
Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the Court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44(1)(a) of the Courts of Justice Law applies to its full extent.
Applicant: You can try me.
Court: Would you like to say anything?
Applicant: I saw with my own eyes the small pieces of paper going from one judge to another when I was cross-examining, in a way that is not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder?
Court (Mr Photiou): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it.
Court (Mrs Michaelidou): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianou's behaviour utterly unacceptable.
Court (Mr Photiou): We shall have a break in order to consider the matter. The defendant [in the main trial] should in the meantime remain in custody.
...
Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44(1)(a) of the Courts of Justice Law (no. 14/1960) ... that is showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the Court should proceed.
Applicant: Mr President, during the break, I certainly wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time I have faced such an accusation. That is all I have to say.
Court: We shall adjourn for ten minutes and shall then proceed with sentencing.”
18. After a short break the Assize Court, by a majority, sentenced the applicant to five days' imprisonment. The court referred to the above exchange between the applicant and its members and held as follows:
“... It is not easy, through words, to convey the atmosphere which Mr Kyprianou created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the Court, not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating a climate of intimidation and terror within the Court. We are not exaggerating at all in saying that Mr Kyprianou was shouting at and gesturing to the Court.
It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, 'You can try me'.
Later, after a long break, Mr Kyprianou was given a second chance to address the Court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of comprehension of the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the 'very tense atmosphere'. However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse.
Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of 'ravasakia', that is, 'love letters' (See Dictionary of Modern Greek – 'Spoudi ravasaki (Slavic ravas), love letter, written love note'). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret.
We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate.
The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the Court's reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned.
It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a deterrent nature, which can only be imprisonment.
We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, has brought matters to this end.
In the light of the above we impose a sentence of imprisonment of five days.”
19. The President of the Assize Court, however, considered that the imposition of a fine amounting to 75 Cyprus pounds (approximately 130 euros), that is, the maximum penal sum provided by section 44(2) of the Courts of Justice Law 1960 (Law no. 14/1960), would have been the appropriate sentence.
20. The applicant served his prison sentence immediately. He was in fact released before completing the full term, in accordance with section 9 of the Prison Law (Law no. 62(I)/1996 – see paragraph 39 below).
21. On 15 February 2001 the applicant lodged an appeal with the Supreme Court, which was dismissed on 2 April 2001.
22. In his appeal, the applicant relied on a total of thirteen grounds challenging the procedure followed by the Limassol Assize Court, its decision and the sentence imposed on him. The eighth ground of his appeal read as follows:
“According to established precedent, the imposition of a sentence on an advocate is practised with restraint and in serious cases, and never for the suppression of methods of advocacy that are simply offensive given that the advocate has sufficient freedom in the handling of his client's case. The conduct of the [applicant] counsel could not be described either as aggressive or as contemptuous of the Court under all the circumstances even though it constituted expression of the feelings of counsel under the pressure of cross-examination of witnesses in a murder case and the refusal of the Court after an intervention at the stage of cross-examination to allow counsel to withdraw from the case.”
23. The Attorney-General was invited by the Supreme Court to take part in the proceedings as amicus curiae.
24. In its decision dismissing the applicant's appeal, the Supreme Court stated that the relevant constitutional provisions of Cypriot law on contempt of court reflected the principles of English law. It relied on Article 162 of the Constitution, which enables the enactment of legislation giving jurisdiction to any court to order the imprisonment for up to twelve months of any person who does not comply with a judgment or order of that court, and to punish contempt of court. It held that section 44(2) of the Courts of Justice Law was lawfully authorised by Article 162. Finally, it concluded that it was the applicant who had created a tense atmosphere by his disdainful attitude and by undermining the court's role.
25. The Supreme Court held, inter alia:
“We think that there was nothing wrong in the determination of the acts of contempt. The Court gave Mr Kyprianou the chance to reply, predetermining indirectly its intention not to continue with imposing a sentence, should Mr Kyprianou dissociate himself from what he had said and did so with an expression of sincere apology. There was no apology.
...
It is our finding that Mr Kyprianou, by words and conduct, showed disrespect to the Court, by committing the offence of contempt of court referred to in section 44(2) of the Law.
...
It is not fortuitous that the successive objectives of the constitutional legislator, which are embodied in Article 30 and Article 162 of the Constitution, exist side by side. The power to sanction contempt of court is aimed at the protection of judicial institutions, which is essential in order to safeguard a fair trial. The identification of the judge with a prosecutor made by the applicant's lawyer overlooks the court's role and the purpose for which it is granted authority. Its authority is interwoven with the prerequisites for securing its judicial function. The role of the judge is nothing more than that of the defender of judicial proceedings and of the court's authority, the very existence of which are necessary to secure a fair trial. A lawyer, a servant of justice, is not a party to the case. By abusing the right to be heard and being in contempt of court, a lawyer intervenes in the proceedings, as any third party, and interferes with the course and thereby harms justice. The judicial sanctioning of contempt, where necessary, is a judicial duty exercised for the purpose of securing the right to a fair trial. The impersonal and objectively defined issue is associated with the facts of the case; any indifference of the court in the face of reproach regarding its function would leave it exposed to the charge that it does not conduct a fair trial. The fairness of the judges is the quintessence of the administration of justice.
...
In this case, Mr Kyprianou tried to prevail over the court and direct the course of the trial. If the court remained indifferent before such a scene, this would constitute a betrayal of the performance of its duty.”
26. The Supreme Court concluded as follows:
“We find that Mr Kyprianou, by words and conduct, showed disrespect to the court and committed the offence of contempt in the face of the Court contrary to section 44(2) of the Law.”
27. In relation to the sentence imposed on the applicant, the Supreme Court stated, inter alia, the following:
“The exercise of the power of the court to impose sentence on persons who act in contempt of court is the ultimate measure, but it is indispensable whenever the dignity of the court is offended and the fulfilment of its mission impeded. Punishment is not a court's choice. It becomes its duty only when justice demands it. It is indicative of the rarity of a lawyer's conviction for contempt of court that this is the first time, since the establishment of the Republic, as far as we are able to ascertain, that a sentence of imprisonment has been imposed on a lawyer for contempt of court. This attitude is not unrelated to the awareness of the lawyer's mission. It is not possible, however, to allow the legal profession to act contrary to the lawyer's function. The lawyer who repudiates his role as a servant of justice also repudiates the protection that is given to him for putting his client's rights forward without fear or distraction. In setting himself against the court for his own purposes, he acts contrary to his vocation and shares the same fate as everyone else who acts in contempt of court.
It is sad that Mr Kyprianou did not withdraw what he said and did in the Assize Court. He did not apologise, even before us.
...
It was up to the Assize Court to deal with the contempt and to decide the means for the treatment and punishment of the person in contempt. No reason has been shown which justifies our intervention with regard to the sentence imposed.
We feel sad because a lawyer like Mr Kyprianou, with forty years of service in the profession, was convicted and sentenced to imprisonment for contempt of court. But we are even sadder because a lawyer with so many years in service struck at Justice. We are relieved this is the first time that Justice has suffered in this way. We hope that this will also be the last time.”
28. The relevant parts of Article 12 §§ 4 and 5 of the Constitution provide as follows:
“4. Every person charged with an offence shall be presumed innocent until proved guilty according to law.
5. Every person charged with an offence has the following minimum rights:
(a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him;
(b) to have adequate time and facilities for the preparation of his defence;
...”
29. The relevant parts of Article 30 §§ 2 and 3 of the Constitution provide as follows:
“2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law.
...
3. Every person has the right:
(a) to be informed of the reasons why he is required to appear before the court;
(b) to present his case before the court and to have sufficient time necessary for its preparation;
...”
30. Article 113 § 2 of the Constitution reads 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 for 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 and in accordance with his instructions.”
31. Article 162 of the Constitution reads as follows:
“The High Court shall have jurisdiction to punish any contempt of itself, and any other court of the Republic, including a court established by a communal law under Article 160, and shall have power to commit any person disobeying a judgment or order of such court to prison until such person complies with such judgment or order, and in any event for a period not exceeding twelve months.
A law or a communal law, notwithstanding anything contained in Article 90, as the case may be, may provide for the punishment of contempt of court.”
32. Section 25(2) reads as follows:
“Subject to the provisions of the Criminal Procedure Law, but save as otherwise provided in the subsection, every decision of a court exercising criminal jurisdiction shall be subject to appeal to the Supreme Court. Any such appeal may be made as of right on any ground against a decision of acquittal or conviction or a decision imposing sentence.”
Section 25(3) provides as follows:
“Notwithstanding anything contained in the Criminal Procedure Law or in any other Law or in any Rules of Court and in addition to any powers conferred thereby, the Supreme Court, on hearing and determining any appeal either in a civil or a criminal case,order of retrial by the trial court or any other court having jurisdiction, as the Supreme Court may direct.”
33. The relevant parts of section 44(1) read as follows:
“Any person who –
(a) on the premises where any judicial proceedings are being held or taken, or within the precincts of the same, shows disrespect, in speech or manner, of or with reference to such proceedings or any person before whom such proceedings are being held or taken;
...
... is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine not exceeding one hundred pounds, or to both imprisonment and a fine.”
The relevant parts of section 44(2) provide as follows:
“When any offence against paragraph (a) ... of subsection (1) is committed in full view of the court, the court may cause the offender to be detained in custody and, at any time before the rising of the court on the same day, may take cognisance of the offence and sentence the offender to a fine of seventy-five pounds or to imprisonment of up to one month, or to both imprisonment and a fine.”
34. The relevant parts of section 145 provide as follows:
“(1) In determining an appeal against conviction, the Supreme Court ... may
(a) dismiss the appeal;
(b) allow the appeal and quash the conviction if it considers that the conviction should be set aside on the ground that it was, having regard to all the evidence adduced, unreasonable or the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law or on the ground that there was a substantial miscarriage of justice:
Provided that the Supreme Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the applicant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has occurred;
(c) set aside the conviction and convict the appellant for any criminal offence of which he might have been convicted by the trial court on the evidence which has been adduced and sentence him accordingly;
(d) order a new trial before the court which passed the sentence or before any other court having jurisdiction in the matter.
(2) In determining an appeal against sentence, the Supreme Court may increase, reduce or modify the sentence.”
35. The relevant parts of section 146 read as follows:
“During the hearing of an appeal and at any stage thereof, before final judgment, the Supreme Court ... may
(a) call upon the trial court to furnish any information the Supreme Court may think necessary beyond that which is furnished by the file of the proceedings;
(b) hear further evidence and reserve judgment until such further evidence has been heard ...”
36. The relevant parts of section 174 provide as follows:
“(1) Whenever, upon application as hereinafter provided, it is made to appear to the Supreme Court:
(a) that a fair and impartial preliminary inquiry or trial cannot be held in any court;
...
it may order that the preliminary inquiry or trial be held by or before a court other than the court before which, but for such order, it would have been held.
(2) Every application for the exercise of the powers conferred by this section shall be made by motion which shall, except when the application is made by or on behalf of the Attorney-General, be supported by affidavit.
(3) When an accused makes an application under this section, the Supreme Court may, if it thinks fit, direct him to execute a bond with or without sureties conditioned that he will, if convicted, pay the costs of the prosecution.
(4) Every accused making any such application shall give to the Attorney-General notice in writing of the application, together with a copy of the affidavit and no final order shall be made on the application, unless such notice and affidavit are served at least twenty-four hours before the hearing of the application.”
37. Section 15 of the Advocates Law reads as follows:
“Every advocate is an officer of justice and shall bear disciplinary responsibility and be subject to disciplinary proceedings provided for in this part.”
38. The relevant parts of section 17 read, at the material time, as follows:
“(1) If any advocate is convicted by any court of any offence which, in the opinion of the Disciplinary Board, involves moral turpitude or if such an advocate is, in the opinion of the Disciplinary Board, guilty of disgraceful, fraudulent or unprofessional conduct, the Disciplinary Board may:
(a) order the name of the advocate to be struck off the Roll of Advocates;
(b) suspend the advocate from practising for such a period as it may think fit;
(c) order the advocate to pay, by way of fine, any sum not exceeding £500;
...
(d) warn or reprimand the advocate;
(e) make such order as to payment of the costs of the proceedings before the Disciplinary Board as the Disciplinary Board may think fit.
(2) Proceedings to enforce any of the penalties provided by subsection (1) above may be commenced:
(a) by the Disciplinary Board on its own motion;
(b) by the Attorney-General of the Republic;
(c) on a report made to the Disciplinary Board by any court or chairman of the local Bar committee;
(d) by an application, with leave of the Disciplinary Board, of any person aggrieved by the conduct of the advocate.”
39. The relevant parts of section 9 of the Prison Law read as follows:
“...
(2) The release of a prisoner takes place not later than midday of the final day of the sentence of imprisonment.
(3) If the day of release is a Saturday or Sunday or an official holiday, the release takes place the immediately preceding working day.”
40. Phaedeon Economides v. The Police (1983) 2 Cyprus Law Reports 301
“An objection, where a bias is alleged, has to be taken at the earliest moment in the proceedings and has to be decided by the judge concerned whose decision is always subject to judicial review by appeal or by means of prerogative writs where no appeal lies from his final decision in the proceedings on which the question of bias was raised.
On the question of bias, the test to be applied is whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts could have reasonable suspicion that a fair trial for the applicant was not possible.”
41. The Greek word ραβασάκια (ravasakia) is the plural of the word ραβασάκι (ravasaki) which has the following meanings:
(1) G. Babinioti, Dictionary of Modern Greek Language, p. 1542 (Γ. Μπαμπινιώτη, Λεξικό Νέας Ελληνικής Γλώσσας):
(i) short and secret letter or note with love content (σύντομη και κρυφή επιστολή ή σημείωμα με ερωτικό περιεχόμενο);
(ii) anything written (document, letter, etc.), mainly of an unpleasant nature, which is sent to someone. Synonyms: for example, letter, note (οτιδήποτε γραπτό (έγγραφο, επιστολή κτλ), κυρίως. με δυσάρεστο περιεχόμενο, το οποίο αποστέλλεται σε κάποιον. Συνώνυμα π.χ. γράμμα, σημείωμα).
(2) Bousnaki Brothers, The Great Popular Dictionary, 2002, p. 2983 (Α/φοι Μπουσνάκη, Το Μεγάλο Λεξικό της Δημοτικής):
(i) note (σημείωμα);
(ii) love letter (ερωτικό γράμμα).
(3) Aristotle University Thessaloniki, Institute of Modern Greek Studies, Dictionary of the Common Μodern Greek, p. 1741 (Λεξικό της Κοινής Νεοελληνικής, Αριστοτέλειο Πανεπιστήμιο Θεσσαλονίκης, Ινστιτούτο Νεοελληνικών Σπουδών):
(i) love letter, note (that is sent secretly) (ερωτική επιστολή, σημείωμα (που στέλνεται κρυφά));
(ii) short written message normally of an unpleasant nature (warning, threats, etc.) for the recipient (σύντομο γραπτό μήνυμα, συνήθως με δυσάρεστο (προειδοποιητικό, απειλητικό) κτλ περιεχόμενο για τον παραλήπτη).
42. In general, it can be observed that common-law jurisdictions and some civil-law jurisdictions allow courts to deal with disruption to their proceedings under a summary procedure conducted by the judge presiding over the main proceedings who is empowered to take immediate measures. In the majority of civil-law jurisdictions, however, disruptive behaviour is referred to the competent prosecuting authorities for the purposes of instituting criminal or disciplinary proceedings. In this latter respect there is a significant difference between the common-law and civil-law approaches.
43. The following paragraphs contain a summary of the information provided by the third-party intervening States as to the current position under their domestic law concerning contempt of court.
44. Under English and Welsh law, the courts enjoy extensive powers to deal with contempt of court, including contempt committed in facie curiae which falls within the category of criminal contempt. Acts which amount to contempt in the face of the court can take various forms such as assaulting the judge or an officer of the court in court, insulting the judge in court, intimidating a witness in court, interrupting the proceedings and tape recording or photographing the proceedings. If the contempt also constitutes a criminal offence, for example assault, it can be dealt with as a criminal offence instead and thus proceedings can be initiated by the Crown Prosecution Service following investigation by the police.
45. The power to commit for contempt in facie curiae is a part of the common law, developed by the courts through judicial decisions. This remains true as far as superior courts (Court of Appeal, High Court and Crown Court) are concerned. In the case of inferior courts, the power to commit for contempt in facie curiae has been placed on a statutory footing (Contempt of Court Act 1981, section 12, and County Courts Act 1984, section 118(1)). A practice note and a practice direction have been issued addressing contempt of court. One applies in magistrates' courts and the other in the High Court and county courts (practice note issued by the Lord Chief Justice in May 2001 and practice direction issued by the Lord Chief Justice, supplemental to Order no. 52 of the Rules of the Supreme Court and Order no. 29 of the County Court Rules).
46. According to the latter, for example, where the committal application relates to contempt in the face of the court it would normally be appropriate to defer consideration of the behaviour to allow the respondent a period of reflection. Furthermore, the judge should, inter alia: inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application; notify the respondent of the possible penalties he faces; allow the respondent an opportunity to apologise to the court and provide explanations for his actions and behaviour; and allow for arrangements for legal representation. In addition, if there is a risk of the appearance of bias, the presiding judge should ask another judge to hear the committal application (sections 12-14 of the practice direction).
47. Overall, judges have the power to deal with and punish contempt committed before them, although the courts have recognised that this summary procedure should be used exceptionally and when categorically necessary in the interests of justice. Thus, while accepting that the procedure must retain a summary nature in order for it to be effective, the courts have also sought to ensure that the procedure is fair and consistent with the provisions of Article 6 of the Convention. The Court of Appeal, through its judgments, has given courts guidance as to the safeguards they need to adopt in order to ensure that the summary process is fair for the alleged contemner. These include, inter alia, allowing a short period of reflection, the possibility of an adjournment, arrangements for legal representation, and giving an opportunity to apologise (see R. v. Moran [1985] 81 Criminal Appeal Reports 51; R. v. Hill [1986] Criminal Law Reports 457; and Wilkinson v. S. [2003] 2 All England Reports 184). It appears from the case-law that the courts have acknowledged the importance of avoiding the danger of a real possibility of bias, the applicable test being that of “apparent bias”, namely, whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the court was biased (see DPP v. Channel Four Television [1993] 2 All England Reports 517, and Porter v. Magill [2002] 2 Appeal Court 357). The Court of Appeal recently stated in R. v. Dodds ([2003] 1 Criminal Appeal Reports 3) that the common-law requirements of natural justice in dealing with criminal contempt did not fall short of the Convention requirements.
48. The offence of contempt of court in Scotland is a sui generis offence. With limited exceptions, the law on contempt remains part of the common law. Contempt committed in facie curiae is normally dealt with summarily by the presiding judge. Where it also amounts to a criminal offence, it may be prosecuted on indictment or on summary complaint.
49. While the procedure remains in essence a summary one, in practice measures have been put in place in order to ensure fairness. In particular, judges follow a memorandum issued on 28 March 2003 by the Lord Justice-General that provides guidelines concerning the procedure to be adopted when judges are considering whether the conduct of any party during a trial constitutes a contempt of court. For instance, the act of contempt should be dealt with expeditiously but most importantly fairly and objectively; the alleged contemner must be given the opportunity to obtain legal advice and representation, to apologise for his conduct and make a statement in mitigation. Furthermore, although the normal rule is that the presiding judge will deal personally with the contempt, it is recognised that, exceptionally, another judge may need to deal with the case.
50. Under Irish law, contempt of court is an offence sui generis within the inherent jurisdiction of the court. Contempt in facie curiae comes within the ambit of criminal contempt and is tried summarily by both superior and inferior courts.
51. The Irish courts have consistently observed that contempt of court is not an offence against the personal dignity of judges but rather it is the name given to the kind of wrongful conduct which consists of interference with the administration of justice. The power to adjudicate and punish such conduct is considered an essential adjunct of the rule of law and an inherent aspect of the authority of judges to control the proceedings before them.
52. For the purposes of safeguarding the rights of the alleged contemner and ensuring fairness, certain procedural guarantees are afforded in the case of contempt in the face of the court, including the requirement that judges should only determine such proceedings arising out of events in their court where it is necessary to do so.
53. In Maltese law, contempt of court is regulated by legislation in Title XVII of the Second Book of the Code of Organisation and Civil Procedure entitled “Of the Respect Due to the Court”. These rules also apply to courts of criminal jurisdiction, by virtue of Article 686 of the Criminal Code.
54. According to the long-established practice of Maltese courts, contempt committed in the face of the court is punishable by the judge or magistrate presiding over the proceedings in the course of which the contempt is committed. Contempt may take the form of disturbance in the courtroom by way, for example, of exclamations of approval or disapproval, improper behaviour such as indecent words or gestures or insulting remarks (Article 990) or the use of insulting or offensive expressions in written pleadings or during the hearing (Article 994).
55. According to Article 990 of the Code, the following four types of sanction are available in respect of contempt committed in facie curiae: reprimand, expulsion from the court, a fine in terms of the Criminal Code and, lastly, arrest for a period not exceeding twenty-four hours in a place within the court building.
56. The only possible exception to this summary procedure is where contempt constitutes an offence under the Criminal Code (The Court v. Angelo Pace, 7 December 1990). In such circumstances, it is prosecuted as a criminal offence. The presiding judge or magistrate can order the arrest of the offender, draw up a procès-verbal of the fact and remit the party arrested to the magistrates' court (Article 992).
57. Furthermore, special provision is made for acts of contempt committed by lawyers. The normal sanctions are not applied but, in serious cases, the judge or magistrate may “forthwith” suspend the lawyer from practising for a period not exceeding one month (Article 993).
58. According to paragraph 20 of the Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), lawyers should enjoy “civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court, tribunal or other legal or administrative authority”.
59. In its Recommendation Rec(2000)21, the Committee of Ministers of the Council of Europe recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer. For instance, “lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards”. Lawyers should, however, “respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards” (Principles I § 4 and III § 4; see Nikula v. Finland, no. 31611/96, §§ 27-28, ECHR 2002II).
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