CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1996
Addendum
CYPRUS*
[11 September 1996]
* The initial report, submitted by the Government of Cyprus is
contained in document CAT/C/16/Add.2; for its consideration by
the Committee, see document CAT/C/SR.168 and 169 and Official
Records of the General Assembly, Forty-ninth session, Supplement
No. 44 (A/49/44), paras. 118-127.
Introduction
1. This
is the first supplementary report (second periodic) of the Republic
of Cyprus submitted under article 19 of the Convention, the initial
report having been submitted in June 1993 and considered by the
Committee on 17 November 1993.
2. In
the preparation of this report the following have been taken into
consideration:
(a)
The guidelines of the Committee;
(b)
Steps taken by the Republic of Cyprus and developments which took
place regarding the implementation of the Convention since the
initial report was submitted;
(c)
Information on matters which remained unanswered during the consideration
of the report;
(d)
The comments and recommendations of the Committee, made in its
report dated 12 July 1994;
(e)
Contemplated future action.
3. Following
the guidelines, this report is divided into two parts. The first
part deals with new developments, steps and measures taken during
the interim report. It includes an outline of contemplated measures.
The second part contains additional information and responses
to the comments and recommendations made by the Committee in its
report.
I. INFORMATION ON NEW DEVELOPMENTS AND MEASURES RELATING TO
THE IMPLEMENTATION OF THE CONVENTION
(following the order of arts. 1 to 16, as appropriate)
Developments
after submission of the initial report
4. The
major developments which occurred since the submission of the
initial report are:
(a)
The preparation of a bill regarding mental health;
(b)
The preparation of a bill regarding the interpretation and implementation
of international treaties;
(c)
The enactment of a new law regarding prisons;
(d)
The submission to the Council of Ministers of the report of the
Commission of Inquiry set up to inquire into complaints made against
the police of ill-treatment of persons held in custody and measures
taken in consequence.
Mental
health; internment of mental patients
5. The
main law regulating the detention of persons suffering from mental
disorder is the Mental Patients Law (cap. 252). There are also
other provisions in the Criminal Procedure Law (cap. 155), which,
however, are connected with the detention of persons suffering
from insanity. Broadly speaking, in Cyprus, a person suffering
from a mental disorder can be confined in a mental institution
in the following cases:
(a)
Where the patient is fit for confinement irrespective of whether
he has committed an offence, if his confinement is considered
necessary for his own protection or for the protection of the
public (Mental Patients Law);
(b)
Where the patient, being accused of having committed an offence,
was acquitted by reason of insanity (Criminal Procedure Law, cap.
155, sect. 70 (2));
(c)
Where the patient, being accused of having committed an offence,
was found, at an inquiry being conducted for this purpose, unable
to plead and follow the proceedings (Criminal Procedure Law, cap.
155, sect. 70 (1));
(d)
Where a mental patient found wandering at large is apprehended
and brought before the court to be dealt with under the provisions
of the Mental Patients Law.
6. The
Mental Patients Law was first enacted in 1931 and it cannot be
denied that the Law is antiquated and does not satisfy the current
notions relating to mental disorders and their treatment. For
the purpose of modernizing the law relating to mental health,
a bill has been prepared providing, inter alia, for the
establishment and operation of mental institutions, the treatment
of mental patients, the protection of their rights and the duties
and responsibilities of their relatives.
7. The
main innovation of this bill is that the confinement of a patient
in a mental institution is now voluntary and compulsory confinement
is restricted to cases where this is necessary for the protection
of the patient and for the protection of the public. For the issue
of an order for compulsory confinement, an application has to
be made to the court, which will make a provisional order of three
weeks' duration, for supervision, treatment and for determining
whether an extension of the order is necessary. If, at the expiration
of the provisional order, it is considered necessary that the
patient undergo further treatment, then another order for a period
not exceeding 12 months, is made.
8. In
the case of voluntary treatment, there is no time limit for the
duration of the treatment and this may be terminated at the patient's
wish, unless the court is of the opinion that there are grounds
for converting the voluntary treatment into compulsory confinement.
9. The
bill was prepared by the Law Commissioner in cooperation with
the Ministry of Health and is now undergoing a final reading before
it is submitted to the Council of Ministers for approval and eventually
laid before the House of Representatives. The Mental Health Services
Department of the Republic is contemplating the operation of group
houses or hostels where small numbers of patients will be encouraged
to live under nursing care. These patients will be discharged
as certified mental patients and will be released at the end of
the trial period.
Contagious
diseases: additional information
10. Detainees
who fall within the so-called "high risk" category are encouraged
to undergo the HIV test. If the test is positive, they are placed
at an isolation treatment unit.
11. The
above practice was recently criticized by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, in that there is no medical justification for isolating
detainees for the sole reason that they are infected with the
HIV virus or with Hepatitis B, without the manifestation of the
symptoms of these diseases. As an alternative practice, the Committee
recommended the adoption of a new system for the detention of
persons falling within the high risk category in regular places
of detention. This new policy should be accompanied by regular
counselling of the personnel of the places of detention and of
the detainees about infectious diseases (risks of contamination
and methods of protection).
12. In
response to the recommendation of the European Committee, the
Ministry of Justice and Public Order is considering the possibility
of abolishing the "treatment unit" as a special and separate place
for the detention of persons infected with contagious diseases.
13. However,
it is considered that special imprisonment conditions for AIDS
carriers and for inmates suffering from Hepatitis B are imperative
not only for medical, but also for various other reasons, such
as:
(a)
Better living conditions in bigger rooms, which have their own
toilet and bathroom;
(b)
The rejection of the AIDS carriers by the other inmates and the
consequences that this rejection may have on the AIDS carriers
themselves;
(c)
The tendency that some of the AIDS carriers have to communicate
their disease to other prisoners and the increased risk of communication
of the disease, even between informed people, due to the living
conditions prevailing in any prison.
14. In
addition to the information contained in the initial report, it
may be useful to refer to other legislative provisions in respect
of contagious diseases in general.
15. Under
the Infectious Diseases (Prisoners) Law, cap. 284, a detainee
in a prison might be further detained in a hospital or asylum
after the date of his release from prison, if he is suffering
from a contagious or infectious disease. However, this antiquated
law was repealed by the new Prisons Law which was enacted in May
1996 (No. 62 (I) of 1996).
16. It
may be mentioned that the Lepers Law which was originally enacted
in 1891, providing for the segregation and treatment of lepers,
was repealed in 1957.
17. Another
law involving restriction in the movement of people is the Quarantine
Law, cap. 160, regulating the imposition of quarantine to prevent
the introduction and spread of dangerous infectious diseases.
For the purposes of this law, "infectious diseases" are cholera,
plague, smallpox, typhus, yellow fever and other diseases of an
infectious or contagious nature which may be declared to be so
by a notification.
Interpretation
and implementation of international treaties
18. A
bill relating to the interpretation and implementation of international
treaties was considered necessary for the purpose of clarifying
and regulating certain issues which may guide the courts in a
uniform approach to some of the issues pertaining to the implementation
of international treaties and also providing direct and unequivocal
information to the public regarding their rights safeguarded by
the Convention. One of the main questions which triggered the
idea of regulating by law the implementation of international
treaties is what constitutes a self-executing provision which,
as such, does not necessitate national legislation for its enforcement.
What makes a provision self-executing is not always clear and
on this judicial opinion differs. In the case of Malachtos
and Armeftis, the Supreme Court, in its appellate jurisdiction,
stated, inter alia, that:
"... for a treaty
to be applicable it must be self-executing ... Only such provisions
of a convention are self-executing which may be enforced by
the Courts and which create rights for the individuals; they
govern or affect directly relations of the internal life between
the individuals, and the individuals and the State or the
public authorities. Provisions which do not create by themselves
rights or obligations of persons or interests and which cannot
be justifiable or do not refer to acts or omissions of State
organs are not self-executing ... The question whether or
not treaties are self-executing is influenced by the wording
of the convention, its provisions and the relevant constitutional
law in a given country."
19. What
is a self-executing provision is clearly stated in the bill and
as such can be implemented without the need for any legal or administrative
action on the part of the State. According to the bill, self-executing
provisions are those which:
(a)
Are expressly stated to be so in the relevant law ratifying the
treaty;
(b)
Are so found by the Court;
(c)
By their very nature relate to individual rights and liberties
and do not require any action on the part of the State for the
purpose of their implementation.
20. A
most important provision in the bill is the establishment of a
council with wide powers and functions such as:
Making of preparatory
studies as to the signature, accession or ratification of
treaties;
Recommending the
amendment of national legislation consequential to the ratification
of a treaty;
Giving
information regarding treaties.
21. In
the bill there is a clarifying provision regarding reciprocity.
This provision also gives an answer to the questions raised during
the consideration of the initial report. In the Malachtos
case (see para. 18 above) the court pointed out that:
"... there are
... treaties whose nature, objective and function in the international
relations and the internal legal order exclude the condition
of reciprocity. Such are multilateral conventions the object
of which is not to create any subjective or reciprocal rights
for the contracting parties themselves, but their objective
and their intent is to promote certain principles of law,
moral and legal values and which a contracting party signs
and ratifies only for the realization of this objective. Examples
are: Conventions for the protection of human rights and the
improvement and formulation of common rules and the achievement
of social justice."
22. The
issue of the status of the treaties in relation to the Constitution
of the Republic and the national legislation was the subject of
major concern to the Human Rights Committee when considering the
second periodic report of the Republic of Cyprus on the International
Covenant on Civil and Political Rights. It is in consequence of
this that the Law Commissioner included in the aforesaid draft
bill a relevant provision. In particular, clause 12 of the bill
provides:
"It is clarified
that the reciprocity referred to in article 169 (3) of the
Constitution shall not be a condition for the application
of:
(a) Multilateral
treaties the object of which is not the creation of subjective
or reciprocal rights from the contracting parties themselves
but the promotion of certain principles of law or of certain
moral or legal values (such as the protection of human rights
and the improvement and formulation of commonly accepted rules
and the attainment of social justice) and which a contracting
party signs or ratifies only for attaining the said objectives,
(b) Treaties in
relation to which there is international mechanism of supervision
to which a party complaining of violation of the treaty may
have recourse."
23. There
are further provisions in the bill pertaining, inter alia,
to the following:
Force of old treaties
applicable before Cyprus became an independent State;
Effect
of repeal of a ratifying law on the treaty;
Effect
of a treaty on the Constitution;
Providing for
penalty where an offence is created by a treaty but no provision
for penalty is made therein;
Reciprocity
not required in respect of multinational treaties;
General
enabling provisions for making rules and regulations.
II. ADDITIONAL INFORMATION REQUESTED BY THE COMMITTEE
Punishment,
jurisdiction
24. In
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Ratification) Law, 1990 (No. 235 of 1990),
there are specific provisions making torture an offence punishable
according to the degree of aggravating circumstances. In particular,
section 3 of this Law provides:
"3 (1) Any person
subjecting another to torture is guilty of an offence and
is liable:
(a)
To imprisonment for three years;
(b)
To imprisonment for 10 years, if he causes serious bodily injury
to the tortured person or uses means or methods of systematic
torture.
(2)
If the person responsible for torture is a public officer or a
person acting under his official capacity he is liable:
(a)
To imprisonment for five years;
(b)
To imprisonment for 14 years if there exist the aggravating circumstances
referred to in paragraph (b) of subsection (1) above.
(3)
If in consequence of torture the tortured person dies, the person
responsible for the torture is liable to imprisonment for life.
(4)
For the purposes of this section the word 'torture' has the meaning
assigned to it in Article 1 of the Convention."
25. As
far as matters of jurisdiction are concerned, these are regulated
by the Courts of Justice Law 1960 (No. 14 of 1960) and the Criminal
Code (cap. 154). Section 20, subsection (1), of Law 14 of 1960
gives jurisdiction to an assize court to try any offence committed:
(a)
Within the territorial limits of the Republic of Cyprus; or
(b)
Within the Sovereign Areas of the Bases as created by the Treaty
of Establishment of the Cyprus Republic by a Cypriot against or
in relation to a Cypriot citizen;
(c)
In any foreign country by a citizen of the Republic while he was
acting in the service of the Republic, or
(d)
On any ship or aircraft registered in the Republic; or
(e)
In such other places and under such circumstances as may be provided
by law.
Section
5, subsection (1), of the Criminal Code (cap. 154) gives jurisdiction
to the Cyprus courts to try any offence committed:
(a)
Within the territory of the Republic; or
(b)
Within the Sovereign Base Areas by a Cypriot against or in relation
to a Cypriot; or
(c)
In any foreign country by a citizen of the Republic whilst in
the service of the Republic; or
(d)
In any foreign country by a citizen of the Republic if the offence
is one punishable in the Republic with death or imprisonment exceeding
two years and the act or omission constituting the offence is
also punishable by the law of the country where it was committed;
Provided
that if in respect of the act or omission constituting the offence
the death penalty is not provided for by the law of the country
where the act or omission was committed, while the death penalty
is provided for in the Republic, the death penalty shall not be
imposed in the Republic but such citizen shall be liable to any
other punishment up to imprisonment for life; or
(e)
In any foreign country by any person if the offence is:
(i)
Treason or an offence against the security of the Republic or
the constitutional order; or
(ii)
Piracy; or
(iii)
Connected with the coin or currency notes of the Republic; or
(iv)
Related to unlawful dealing in dangerous drugs; or
(v)
One to which, under any International Treaty or Convention binding
on the Republic, the law of the Republic is applicable.
26. The
above provisions are, obviously, in line with article 5 of the
Convention. In particular, paragraph (e) of subsection (1) of
section 20 of Law 14 of 1960 and paragraph (d) of subsection (1)
of section 5 of the Criminal Code, as a residuary clause, complement
subparagraph (c) of paragraph 1 of article 5 of the Convention,
without any need to take further measures in domestic legislation,
since by its ratification the Convention has become part of the
domestic law.
Article
8 of the Convention
27. This
article of the Convention is self-executing and there is no need
to take any internal measures in order to give effect to this
provision. By its ratification, the Convention has not only become
part of the domestic legislation but has, by article 169 of the
Constitution of the Republic, acquired a superior force over any
national legislation which is in conflict with the Convention.
Therefore, article 8 provides for additional extraditable offences
which are applicable to Cyprus.
Commission
of Public Inquiry
(a) Conclusions
of the Commission of Public Inquiry concerning complaints of ill-treatment
by the police
28. The
Commission of Inquiry was set up in 1993 by the Council of Ministers
to examine eight cases concerning complaints of torture and ill-treatment
by the police. The allegations regarding the nature of torture
used, in all of the complaints, included hanging by the legs,
electric shocks and blows with clubs and truncheons and the circumstances
under which it has allegedly been inflicted generally involved
interrogations at night, verbal abuse and the wearing of hoods
by the police officers and the victims.
29. The
Commission, after hearing the testimonies of the complainants,
the police officers, the medical officers and other witnesses
and after considering the available evidence, in respect of each
case, reached the conclusion that the complainants had been tortured
or ill-treated by the police. The Commission in its general conclusion
condemned the nature of the torture used by the police and the
operation in the Limassol Police Station of an organized system
of subjecting detainees to inhuman treatment during interrogation.
It also noted, that, though the mission of the police is difficult
to accomplish, recourse to violence and ill-treatment is unacceptable
and suspects should be dealt with in a humane manner, using proper
techniques and methods.
30. One
of the cases examined by the Commission, was that of Lykourgos
Vassiliou. The Commission of Inquiry found that the complainant
was violently ill-treated by the police, as a result of which
he suffered serious bodily injuries. The Commission took into
consideration the judgement of the Assize Court of Larnaca where
the accused police officers were acquitted of the charges of ill-treatment,
but, nevertheless, the Commission had no doubt that the complainant
had suffered serious injuries caused by the police. The Commission
noted that the reason for reaching a different conclusion from
the Assize Court was that, in addition to the evidence presented
before the Assize Court, the Commission could also take into consideration
a videotape recorded by a private television channel, showing
the complainant being ill-treated by the police. The same videotape
could not be made admissible as evidence by the Assize Court because
of certain legal impediments.
(b) Measures
taken consequent to the conclusions of the Commission of Inquiry
31. On
the basis of the conclusions of the Commission of Inquiry and
acting on the advice of the Attorney-General of the Republic,
the Council of Ministers decided that prima facie there
were special reasons of public interest which might justify the
termination of the services of 12 members of the police and invited
them to submit their representations in writing within a period
of four weeks.
32. Upon
considering the representations submitted, the Attorney-General,
in an opinion to the Council of Ministers, stated that there was
sufficient evidence to justify the taking of measures against
eight of them including their expulsion from the police.
33. The
Council of Ministers, after considering the written representations
of the 12 police officers and the recommendations of the Attorney-General,
decided:
(i)
To terminate the services of three senior members of the police;
(ii)
To appoint special criminal investigators for cases in which five
members of the police appeared to have been involved;
(iii)
To examine whether any disciplinary offences had been committed
by police officers in other cases.
34. As
far as the case of Lykourgos Vassiliou is concerned, no measures
have been taken against those responsible for the injuries, since
the case has been adjudicated by the Assize Court and the accused
have been acquitted.
(c) Other
action that had been taken in response to the allegations of ill-treatment
35. Due
to a series of complaints alleging ill-treatment by the police,
certain measures had been taken before the Commission of Inquiry
reached its conclusions.
36. One
of the measures taken, was the enactment of the Commissioner for
Administration (Amendment) Law of 1994 (No. 98 (1) of 1994). This
Law empowers the Commissioner to investigate complaints against
any officer exercising an administrative or executive function
or other activities in violation of human rights or in violation
of the principles of proper administration.
37. Moreover,
in an attempt to increase sensitivity in the protection of human
rights, great emphasis has been placed on lectures and subjects
being taught in the Police Academy concerning the respect and
protection of human rights. These lectures are being given by
university professors, by the Attorney-General himself and other
members of his office, and qualified senior police officers. Similar
lectures are also given in all regional police departments.
38. It
is further to be noted that during the initial and in-service
training police officers are taught and trained in using modern
investigation techniques. They are also instructed to interrogate
and obtain statements from suspects according to the provisions
of the Judge's Rules (directives for the proper interrogation
of suspects issued by the Home Office of the United Kingdom and
hitherto applicable to Cyprus).
39. Furthermore,
a circular has been issued by the Minister of Justice and Public
Order to all police officers stressing, inter alia, that
although the mission of the police is difficult and serious, it
must always be effected in accordance with the Constitution of
the Republic, the international conventions safeguarding human
rights and the laws of the Republic.
Action
taken in response to recommendations of the European Committee
for the Prevention of Torture
40. The
Ministry of Justice and Public Order, in compliance with a recommendation
of the European Committee for the Prevention of Torture, has introduced
a special form to be completed whenever an individual is arrested
by the police and is held in a police detention centre.
41. This
form contains the following particulars:
The name of the
police station where the detainee is held;
The serial number
in the register where the name of the detainee is entered;
The name of the
detainee;
The date and time
of arrest;
The name of the
police officer effecting the arrest where an arrest warrant
has been issued;
Brief description
of the offence for which the detainee was arrested;
The station at
which the offence was filed and the serial number in the criminal
cases records;
The date and time
at which the detainee entered the detention centre;
Any visible injuries
on the detainee;
Date and time
of release.
The form
must be updated regularly regarding the date and time of any movement
of a detainee, visits by a doctor/lawyer, questioning of a detainee,
etc. These entries must be signed by the person in charge of the
detainee. It is to be noted that this form is additional to any
other entries into books/records/documents already kept in accordance
with other existing instructions, such as the station ledger,
conviction record, etc.
42. The
Ministry of Justice and Public Order is also considering implementing
the recommendation of the European Committee for the Prevention
of Torture regarding the use of an electronic recording system
for police interrogations with all necessary safeguards for the
authenticity of such recording, such as obtaining the detainee's
consent, sealing of the tape in the presence of the detainee and
the making of this an authentic copy of the recording.
43. In
1995 there was a complaint by a certain Osman Yusuf (Erkan Egmez)
that he was severely ill-treated by the police during his arrest
and detention. The Attorney-General as a result entered a nolle
prosequi against the complainant of the offence of drug trafficking
for which he was arrested. Following this the complainant filed
a complaint for investigation by the Commissioner for Administration
of the Republic, who promptly dealt with the matter, finding the
complaints to be valid. The case is now back with the Office of
the Attorney-General for decision as to the appropriate steps
to be taken in view of certain legal peculiarities of the case.
III. CONCLUSIONS
44. The
Republic and the people of Cyprus are very sensitive on matters
of torture and ill-treatment particularly of persons being held
by the authorities. The report of the Commission of Inquiry regarding
complaints of ill-treatment caused a public outcry. The Government
responded promptly and drastically to the report and measures
were, and are being, taken for the elimination of any action which
may amount to a violation of human rights.
45. The
Attorney-General of the Republic, an independent officer under
the Constitution, has repeatedly stressed to the police (at his
lectures to the Police Academy and in a circular addressed to
them) that he will in no case tolerate the use of any kind of
force on the part of police organs or other persons, either during
detention or during interrogation and further, that he is not
prepared to allow the use of any testimony which has been obtained
in such a way. The Attorney-General emphasized that it must be
clearly understood that the modern way of investigating crimes
aims at securing objective evidence, scientific or other, rather
than depositions/confessions.
46. An
example of the determination of the Attorney-General not to tolerate
the use of force of any kind is the entry of a nolle prosequi
in the case of Osman Yusuf (Erkan Egmez), referred to earlier
in this report, who was accused of the serious international offence
of drug trafficking.
