CASE OF ANDRONICOU AND CONSTANTINOU v. CYPRUS

Peticija Nr. 25052/94 · Priimta 1997-10-09 · ECLI:CE:ECHR:1997:1009JUD002505294 · Kalbos: EN · EN · FR

← Strasbūras↗ HUDOC originalas
Peticija Nr.
25052/94
Priimta
1997-10-09
Valstybė atsakovė
CYP
Išvada
Preliminary objection rejected (abuse of process);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;No violation of Art. 6-1
Konvencijos straipsniai
2, 2-1, 2-2, 6, 6-1, 26, 27, 27-2, 35, 35-1
Originalas
HUDOC ↗
PirmininkasR. RyssdalTeisėjasN. ValticosTeisėjasE. PalmTeisėjasR. PekkanenTeisėjasA.B. BakaTeisėjasG. Mifsud BonniciTeisėjasD. GotchevTeisėjasK. JungwiertAd hoc teisėjasG. PikisKanclerisH. PetzoldKanclerisP.J. Mahoney
Santrauka
Rengiama…

CASE OF ANDRONICOU AND CONSTANTINOU v. CYPRUS

(86/1996/705/897)

JUDGMENT

STRASBOURG

9 October 1997

The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D‑50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

List of Agents

Belgium: Etablissements Emile Bruylant (rue de la Régence 67,

B - 1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher

(place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare)

The Netherlands: B.V. Juridische Boekhandel & Antiquariaat

A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC ‘s-Gravenhage)

SUMMARY[1]

Judgment delivered by a Chamber

Cyprus – alleged unlawful killing of a young couple by officers of a special police unit (MMAD) in the course of a rescue operation

i. government’S PRELIMINARY OBJECTIONS

Non-exhaustion of domestic remedies

Government’s assertion that applicants failed to take civil proceedings to claim compensation on strength of authorities’ ex gratia offer of legal aid.

Effective remedy in circumstances would have been institution of criminal proceedings against officers involved – Attorney-General refused applicants’ request – in addition, detailed and reasoned findings of domestic commission of inquiry after exhaustive investigation of circumstances of killings likely in practice to remove any reasonable prospects which applicants had of winning a civil action – commission of inquiry chaired by most senior judicial appointee in respondent State.

Conclusion: objection dismissed (seven votes to two).

Abuse of process

Applicant’s refusal either to enter or continue negotiations on terms of friendly settlement over alleged breach of Convention right not to be construed as abuse of process – in instant case, proposed settlement did not moreover contain any admission of authorities’ liability for deaths of couple, as sought by applicants.

Conclusion: objection dismissed (unanimously).

II. article 2 of the convention

Reiteration of Court’s case-law on principles governing use of lethal force by security forces.

Application of Article 2 to facts in issue

Court takes Commission’s findings of fact, which are not disputed, to be an accurate and reliable account of circumstances of case – Court must make its own assessment as to whether facts disclose a violation of Article 2.

Planning and control of rescue operation

Court only concerned to establish whether in circumstances authorities had taken appropriate care in planning and control of rescue operation, including decision to deploy MMAD officers, to minimise any risk to lives of couple – not appropriate to assess alternative ways of handling situation with benefit of hindsight.

Authorities conducted prolonged negotiations in knowledge that they were dealing with a young couple – negotiations carried out in a reasonable manner in view of circumstances – however, as situation became increasingly fraught with danger, authorities could reasonably conclude that decisive action needed to bring an end to incident in view of failure of negotiations phase – justified fear that young man, known to be armed, would kill his fiancée at midnight and commit suicide – decision to send in MMAD officers only taken after careful reflection and high-level consultation.

Although officers armed with machine guns it was never intended that these weapons be used – officers given clear instructions to use only proportionate force and to open fire only if life of young woman or their own lives in danger.

Not shown in view of above considerations that rescue operation had not been planned and organised in a way which minimised to greatest extent possible any risk to lives of couple.

Administration of force

Officers’ use of force was direct result of young man’s decision to open fire when rescue team entered flat – officers had to take split-second decisions to save life – officers’ honest, even if mistaken, belief at the time that young man constituted a real and immediate danger to life of young woman and to lives of officers – valid reasons for this belief in circumstances and for officers’ conclusion that it was necessary to kill young man to save young woman’s life as well colleagues’ lives – clearly regrettable that Officers nos.2 and 4 used as much fire power as they did – however, Court cannot with detached reflection substitute its own assessment of situation for that of officers confronted with agonising dilemma and the need to neutralise any risk presented by young man to lives of others.

Use of lethal force in circumstances did not exceed what was absolutely necessary for purposes of defending life of young woman and lives of officers.

Conclusion: no violation (five votes to four).

III. Article 6 § 1 of the Convention

Applicants’ assertion that absence of legal-aid system in respondent State for civil proceedings resulted in a denial of possibility to seek damages in respect of deaths of couple – justified in refusing to accept authorities’ ex gratia offer of legal aid – offer not administered independently and arbitrarily withdrawn shortly afterwards.

Court reiterates that it is not its function to indicate measures to be taken by Contracting States to guarantee litigants an effective access to a court – in instant case, ex gratia offer would have provided solution to overcome applicants’ lack of resources to take civil proceedings – applicants cannot maintain therefore that they were denied an effective access to a court.

Conclusion: no violation (unanimously).

court’s case-law referred to

18.1.1978, Ireland v. the United Kingdom; 9.10.1979, Airey v. Ireland; 27.9.1995, McCann and Others v. the United Kingdom; 18.12.1996, Aksoy v. Turkey

In the case of Andronicou and Constantinou v. Cyprus[2],

The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court B[3], as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr N. Valticos,

Mrs E. Palm,

Mr R. Pekkanen,

Mr A.B. Baka,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr K. Jungwiert,

Mr G. Pikis, ad hoc judge,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 23 April and 25 August 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Cyprus recognised the compulsory jurisdiction of the Court (Article 46). The Government’s application referred to Articles 44 and 48 (d) of the Convention. The object of the Commission’s request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 2 and Article 6 of the Convention. The object of the Government’s application was to obtain a decision as to whether the facts of the case disclosed a breach of Article 2 of the Convention.

On 7 August 1996 in the presence of the Registrar, the President had drawn by lot the names of the other seven members, namely Mr N. Valticos, Mrs E. Palm, Mr R. Pekkanen, Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 § 5).

There appeared before the Court:

(a) for the Government Mr A. Markides, Attorney-General

of the Republic of Cyprus, Agent,

Mrs L. Koursoumba, Senior Counsel,

Law Office of the Republic of Cyprus,

Mrs P. Polychronidou-Orphnidou, Counsel “A”,

Law Office of the Republic of Cyprus, Counsel;

(b) for the Commission Mr S. Trechsel, Delegate;

(c) for the applicants Mr Michael Kyprianou, Barrister-at-Law,

Mr Menelaos Kyprianou, Barrister-at-Law,

Mr K. Starmer, Barrister-at-Law, Counsel.

The Court heard addresses by Mr Trechsel, Mr Michael Kyprianou and Mr Markides.

AS TO THE FACTS

i. circumstances of the case

A. The deceased couple

He first met Elsie Constantinou in August 1993. At the time she was working for a fashion shop. He was employed by a cement company. On 26 November 1993 Elsie Constantinou moved into Lefteris Andronicou’s ground-floor flat in the Chloraka district of Paphos. It would appear that her parents, the third and fourth applicants, did not approve of the relationship and attempted to persuade her to return home. On one occasion her father enlisted the help of the police. Elsie Constantinou’s mother did in fact succeed in persuading her to move out of the flat and return home. She subsequently spent two weeks in England. She returned from England on 19 December and moved back into Lefteris Andronicou’s flat.

The couple announced their engagement in the local press on 22 December 1993.

B. The early phases of the incident

asking to be let out. He also heard Elsie Constantinou asking Lefteris Andronicou why he was loading the gun and pointing it at her. I. Hatzipashalis tried to calm Lefteris Andronicou by telling him that many couples quarrel and then make up without the need for the police to intervene. However, when he approached the window, Lefteris Andronicou threatened to shoot him if he did not move away. I. Hatzipashalis asked him to let him see Elsie Constantinou, specifying that, if the latter told him that she had no complaint, he would leave. There was no reply.

At a certain stage, Lefteris Andronicou asked G. Poliviu for cigarettes and food, specifying that Elsie Constantinou was hungry and must have something to eat. D. Konstantinidis decided that no food should be given to him. G. Poliviu left some cigarettes outside the window of the flat.

A. Nikolaidis, in charge. A. Nikolaidis testified before the commission of inquiry that it was the first time in his career that he had been involved in such an operation or such negotiations.

C. The rescue plan

D. Later phases of the incident

appropriate medical advice, should administer soporifics to Lefteris Andronicou’s food, if he asked for any.

under examination by counsel for the police, Dr A. Hatzimitsi repeated her initial statement, specifying that that was her personal opinion.

for fear that the couple might be hurt. It was also noted that it normally took four seconds for the stun grenades to explode and that that might give Lefteris Andronicou time to react.

G. Georgiadis, the deputy director of MMAD, N. Konstantinu, and the head of the MMAD platoon, H. Mavros. They came to the conclusion that Lefteris Andronicou was planning to kill Elsie Constantinou and commit suicide at midnight or five minutes past. As a result, there could be no further negotiations and the MMAD platoon should move into action. H. Mavros affirmed that he was prepared to lead the operation.

police director of Paphos, D. Konstantinidis, called Lefteris Andronicou on the phone. Lefteris Andronicou talked to E. Parmatzia but declined her offer to meet her. He also questioned her identity and then, according to E. Parmatzia, D. Konstantinidis interrupted the conversation.

E. The armed intervention

Officer no. 2 could no longer see Lefteris Andronicou. He moved to the right and could then see Lefteris Andronicou’s left side. Lefteris Andronicou was sitting on the floor and Elsie Constantinou was covering the right side of his body. Officer no. 2 fired again at Lefteris Andronicou several times. He stopped shooting when Lefteris Andronicou was lying on the floor. He wanted to make sure that Lefteris Andronicou was no danger to him or to the young woman. Lefteris Andronicou’s moves appeared to him to be menacing. Officer no. 2 further testified that all his shots were aimed at the left side of Lefteris Andronicou’s body, because this was the only side he could see. He affirmed that he had been trained to shoot to kill when shot at. He did not exclude that he might have fired one or two bullets when Lefteris Andronicou was already lying on the floor. It was later ascertained that Officer no. 2 had fired thirteen bullets.

Andronicou’s body was the State pathologist, Dr M. Matsakis, who visited the scene at 5 o’clock on the morning of 25 December 1993 and confirmed his death. Dr M. Matsakis considered that Lefteris Andronicou’s death had occurred five hours earlier.

F. The immediate aftermath

G. The commission of inquiry

H. Expert evidence before the commission of inquiry

intention of H. Mavros to wait for the tear gas to produce its effects since that usually took some time. The tear gas was thrown to divert Lefteris Andronicou’s attention. In the United States there were two schools of thought regarding multiple entry. Although he tended to favour it, others avoided it for fear that the hostage might be caught in the crossfire. In any event, there was nothing to reproach in the plan of the head of the MMAD platoon, H. Mavros, who had considered and excluded all other possible options.

2. Drugs

same shot which had injured Elsie Constantinou’s left hand. The same shot had also caused slight wounding to Elsie Constantinou’s left ear.

A second machine-gun wound to the abdominal area and the shotgun wounds to the anterior left upper thorax and hands had contributed to her death.

I have never seen a death from a discharge of a shotgun which has not penetrated a body cavity or the head or neck. Finally, it would be also more a matter for the surgeon who saw the wound in life”.

I. Findings of the commission of inquiry

However, he would not accept anything less than the departure of the police. There were no indications that Lefteris Andronicou had any particular enmity vis-à-vis the police. In any event, it would have been extremely improvident for the police to withdraw and leave Elsie Constantinou in his hands.

five minutes and the time the drug took to produce its maximum effects, which she put at two hours. These estimates, however, applied to situations where a normal dose had been administered. In any event, even if the wrong dose or the wrong drug had been administered as suggested by the applicants, Lefteris Andronicou did not eat the food and the operation could not have been planned exclusively around that factor.

expert witnesses would have planned the armed intervention in another manner. The test to be applied was whether the head of the MMAD platoon had planned the armed intervention in a “reasonable” manner, which he had done.

could be drawn from the exercise by one MMAD officer of his right not to incriminate himself.

J. Subsequent developments

II. Relevant domestic law and practice

A. The guarantee of the right to life

“1. Every person has the right to life and corporal integrity.

(a) in defence of person or property against the infliction of a proportionate and otherwise unavoidable and irreparable evil;

(b) in order to effect an arrest or to prevent the escape of a person lawfully detained;

(c) in action taken for the purpose of quelling a riot or insurrection, when and as provided by law.”

B. The status of the European Convention on Human Rights in domestic law

C. The defences of compulsion and necessity under domestic law

“Except for murder and offences against the State punishable with death, no act is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided that the person doing the act did not, of his own accord or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.”
“An act or omission which would otherwise be an offence may be excused if the person accused can show that it was done or omitted to be done only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.”

D. Police powers of arrest

“(1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, the police officer or other person making the arrest may use all means necessary to effect the arrest: Provided that nothing in this subsection contained shall be deemed to justify the use of greater force than was reasonable in the circumstances in which it was employed or was necessary for the arrest of the offender.

(3) Except when the person arrested is in the actual course of the commission of an offence or is pursued immediately after the commission of an offence or escapes from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest.”

E. Commissions of inquiry

“A Commission appointed under the provisions of this Law shall have such of the following powers as are conferred upon it by the Order of appointment required by section 2 of this Law –

(a) to procure all such evidence, written or oral, and to examine all such persons as witnesses as the Commission may think it necessary or desirable to procure or examine;

(b) to require the evidence, whether written or oral, of any witness to be made on oath or declaration, such oath or declaration to be that which could be required of the witness if he were giving evidence in a court of law;

(c) to summon any person residing in the Colony to attend any meeting of the Commission to give evidence or produce any document in his possession and to examine him as a witness or require him to produce any document in his possession, subject to all just exceptions;

(d) to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails to do so, and does not excuse such failure to the satisfaction of the Commission, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his refusal to obey the summons, and also to fine such person a sum not exceeding five pounds;

(e) to fine in a sum not exceeding five pounds any person who, being required by the Commission to give evidence on oath or declaration or to produce a document, refuses to do so and does not excuse such refusal to the satisfaction of the Commission: Provided that, if the witness objects to answer any question on the ground that it will tend to incriminate him, he shall not be required to answer the question nor be liable to any penalties for refusing so to answer;

(f) to admit any evidence, whether written or oral, which might be inadmissible in civil or criminal proceedings;

(g) to admit or exclude the public from any meeting of the Commission;

(h) to admit or exclude the press from any meeting of the Commission;

(i) to award any person who has attended any meeting of the Commission such sum or sums as in the opinion of the Commission may have been reasonably incurred by such person by reason of such attendance.”

PROCEEDINGS BEFORE THE COMMISSION

FINAL SUBMISSIONS TO THE COURT

AS TO THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Non-exhaustion of domestic remedies

Before the Court the Government contended that the applicants could not assert that they had exhausted all effective remedies simply by virtue of their participation in the proceedings of the domestic commission of inquiry given that the commission was not empowered to grant remedies.

In addition, they had actively participated throughout the proceedings of the commission of inquiry. The scope of a civil action for damages would not have been any broader than that of the commission of inquiry. In any event, the absence of a legal-aid system in the respondent State for instituting civil proceedings operated against the applicants in view of their inadequate financial resources. As to the Attorney-General’s ex gratia offer of legal aid, this could not be considered to be a substitute for an independently administered legal-aid scheme and at any rate the offer was arbitrarily withdrawn six weeks after it was made. They also maintained that civil proceedings in the respondent State could last up to eight years. Before the Court the Government denied that this was the case.

B. Abuse of process

To illustrate their good faith to reach a settlement with the applicants, the Government drew attention to the fact that substantial compensation had been agreed on an ex gratia basis for the benefit of the children of Lefteris Andronicou to settle an action brought by the children’s mother. The settlement had been approved by a domestic court.

agreement with the authorities on the terms of a settlement and their decision to pursue an application before the Commission amounted to an abuse of process.

Accordingly the Government’s second preliminary objection also fails.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. The Court’s approach

General principles

In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of

Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2.

Furthermore, in keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see the McCann and Others judgment cited above, pp. 45–46, §§ 147–50).

The establishment of the facts

accordingly assess the issues in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, § 160).

(a) Arguments of those appearing before the Court

(i) The applicants

The applicants maintained that, although the police had been at the scene from 10.30 a.m. on 24 December and had ample time and opportunity to defuse the incident, their failure to conduct the negotiations in an appropriate manner allowed an essentially domestic quarrel to develop into a crisis and led to the decision to mount a rescue operation based on the use of officers of the MMAD to the exclusion of alternative options entailing less risk to life. They pointed to Mr Bagg’s expert opinion before the commission of inquiry in this respect (see paragraphs 98 and 99 above).

(ii) The Government

The Government asserted that it was incorrect to consider the MMAD as a unit specially and exclusively trained for use in anti-terrorist or wartime operations. In fact the rescue operation was planned in such a way as to avoid the use of weapons and with the protection of human life in mind. It was solely geared to securing the release of Elsie Constantinou and the arrest of Lefteris Andronicou on the basis of surprise, speed and precision. The concern to avoid injury to the couple led in fact to the decision to use tear gas rather than stun grenades. The MMAD officers were moreover given clear instructions to use only strictly proportionate force and to fire only if the young woman’s life or their own lives were in danger; nor was it unreasonable to equip the officers with machine guns given that these were fitted with torches which could light up the living-room. The Government also challenged the applicants’ assertion that the authorities had negligently informed the rescue party that Lefteris Andronicou might be in possession of other weapons apart from a double-barrelled shotgun. They argued that this eventuality could not reasonably be excluded in the circumstances and that the MMAD officers needed to be alert to it.

(iii) The Commission

Before the Court the Delegate of the Commission was also critical of the chaotic way in which the negotiations phase had been conducted. The authorities’ failure to use a trained negotiator and to control third-party contacts with Lefteris Andronicou as well as the crowds milling around the flat suggested a lack of professionalism. Furthermore the authorities, in forming the belief that Lefteris Andronicou intended to kill the young

woman, did not attach sufficient weight to his statements that he would release her provided the police withdrew from the scene. In addition, the mishap over the timing of the delivery of the drugged food and the failure to secure the presence of an ambulance at the scene were both symptomatic of a badly handled operation.

(b) The Court’s assessment of the rescue operation

It is also to be noted that the authorities tried to bring an end to the incident through persuasion and dialogue right up to the last possible moment. The police negotiator continued his attempts in the later phase of the incident to assure Lefteris Andronicou that no harm would come to him if he were to release the young woman. Instructions were in fact given at a meeting which ended at 11 p.m. to delay the involvement of the MMAD

officers as much as possible to enable negotiations to continue (see paragraph 55 above). This sustained effort by the authorities to resolve the situation through negotiations illustrates a deep concern on the part of the authorities to deploy the MMAD officers only as a last resort.

While there may have been shortcomings as regards, for example, the lack of crowd control or the absence of a dedicated telephone line between the police negotiator and Lefteris Andronicou, the Court considers nevertheless that the negotiations were in general conducted in a manner which can be said to be reasonable in the circumstances.

It is to be noted that no use of weapons was ever intended and in fact the authorities were deeply anxious to avoid any harm to the couple (see

paragraphs 38 and 54 above). However, it was not unreasonable to alert the officers to the dangers which awaited them and to direct them carefully on firearms use. Furthermore, it must be stressed that the officers were not in fact informed that Lefteris Andronicou was in possession of weapons in addition to the shotgun. They were told that this possibility could not be excluded (see paragraph 38 above). Seen in these terms the message could reasonably be considered to be a warning to the officers to use extreme caution when effecting the operation.

As to the decision to arm the officers with machine guns, it must be emphasised once again that the use of any firearm was never intended in the execution of the plan. However, given that Lefteris Andronicou was armed with a double-barrelled shotgun and it was not to be excluded that he had other weapons, the authorities had to anticipate all possible eventualities. It might be added that the machine guns had the advantage that they were fitted with flashlights which would enable the officers to overcome any difficulties encountered in identifying the precise location of the young woman in a dark room filled with tear gas and at the same time leave their hands free to control their weapons in the event of coming under fire. Furthermore, the use by the officers of their machine guns was subject to the same clear instructions as applied to the use of their pistols (see paragraph 38 above).

(a) Arguments of those appearing before the Court

(i) The applicants

Andronicou was at that stage slumped on the floor with nothing to indicate that he was armed. Officer no. 4 nevertheless fired a total of sixteen shots from his machine gun.

The applicants contended that by directing machine-gun fire in such a sustained manner in a badly lit and confined space the officers were running a very high risk of killing Elsie Constantinou and they did in fact kill her. Neither officer exercised the degree of caution in the use of firearms required of law-enforcement officers in a democratic society. They intentionally killed Lefteris Andronicou in the mistaken and ill-founded belief, which could not be justified either on objective or subjective grounds, that he presented a threat to Elsie Constantinou’s life or to their own lives.

(ii) The Government

The Government requested the Court not to assess with the benefit of hindsight whether or not the force used was absolutely necessary in the circumstances but to have regard to the situation which confronted Officers nos. 2 and 4 at the crucial time and to their need to react on the spur of the moment on the basis of an honestly and reasonably held belief that lives were at risk. In this respect, they recalled that the domestic commission of inquiry, having thoroughly investigated the circumstances surrounding the fatal shootings, had concluded on the basis of the requirements of Article 2 of the Convention as interpreted by the European Commission of Human Rights in its report adopted under Article 31 of the Convention on 4 March 1994 in the McCann, Farrell and Savage case (application n 18984/91) that the use of force resulting in the deaths of the couple was no more than absolutely necessary for rescuing Elsie Constantinou and in self-defence of the rescuing party and for this reason could be justified under Article 2 § 2 (a) of the Convention.

(iii) The Commission

The Commission concluded therefore that the deaths of the couple resulted from the use of force which was more than absolutely necessary in defence of persons from unlawful violence or in order to effect a lawful arrest within the meaning of Article 2 § 2 (a) and (b) of the Convention.

(b) The Court’s assessment of the administration of force

The commission of inquiry concluded on the basis of the evidence before it that Lefteris Andronicou in fact fired the second shot at Elsie Constantinou (see paragraph 134 above). His reaction thus brought about a situation in which split-second decisions had to be taken to avert the real and immediate danger which he presented to Elsie Constantinou and to the members of the rescue team. Officer no. 2 believed that Lefteris Andronicou had shot dead one colleague and wounded another and that he still had not discharged the second cartridge in the shotgun. When he entered the room he saw Lefteris Andronicou holding Elsie Constantinou and appearing to make a threatening move. He also believed that Lefteris Andronicou might have other weapons. As it transpired, he did not have any other weapons and he was not holding the shotgun when Officer no. 2 entered.

It is clearly regrettable that so much fire power was used in the circumstances to neutralise any risk presented by Lefteris Andronicou. However, the Court cannot with detached reflection substitute its own assessment of the situation for that of the officers who were required to react in the heat of the moment in what was for them a unique and unprecedented operation to save life. The officers were entitled to open fire for this purpose and to take all measures which they honestly and reasonably believed were necessary to eliminate any risk either to the young

woman’s life or to their own lives. It transpired at the commission of inquiry that only two of the officers’ bullets actually struck her. While tragically they proved to be fatal, it must be acknowledged that the accuracy of the officers’ fire was impaired through Lefteris Andronicou’s action in clinging on to her thereby exposing her to risk.

B. The Court’s overall conclusion

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTIoN

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

review of means-test decisions. Secondly, the offer was made on 7 June 1995 and withdrawn suddenly and arbitrarily on 20 July 1995, two weeks after the Commission had declared their application admissible. The applicants had never been informed that the offer was subject to a time-limit.

FOR THESE REASONS, THE COURT

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 9 October 1997.

Signed: Rolv Ryssdal

President

Signed: Herbert Petzold

Registrar

In accordance with Article 51 § 2 of the Convention and Rule 55 § 2 of Rules of Court B, the following separate opinions are annexed to this judgment :

(a) partly concurring, partly dissenting opinion of Mrs Palm;

(b) partly concurring, partly dissenting opinion of Mr Pekkanen;

(c) partly concurring, partly dissenting opinion of Mr Mifsud Bonnici;

(d) partly concurring, partly dissenting opinion of Mr Jungwiert;

(e) dissenting opinion of Mr Pikis. Initialled: R. R.

Initialled: H. P.

partly concurring, PARTLY dissenting opinion of judge palm

I am unable to agree with the majority that Article 2 of the Convention has not been violated in the present case.

I subscribe to the general principles laid down in paragraph 171 of the judgment. However, I cannot share the view that the application of these principles to the facts in issue leads to the conclusion that there was no breach of Article 2. I particularly disagree with the Court’s assessment in paragraph 185 that the use of MMAD officers in the circumstances as they were known at the time was justified and that the use of a unit like the MMAD “would appear to be quite natural given the nature of the operation …”.

In this context it has to be recalled that the background to the police intervention was a quarrel between a young couple who had just got engaged. The man, Lefteris Andronicou, had during the quarrel threatened to kill his fiancée, Elsie Constantinou, at midnight on 24 December and then commit suicide.

The whole rescue operation was mounted with the sole aims of freeing Elsie Constantinou and arresting Lefteris Andronicou.

Admittedly the situation was difficult for the authorities at the time and some allowances can therefore be made for mistakes committed during the negotiating phase of the operation. However, I find it wholly out of proportion under the circumstances to implement a plan using MMAD officers who were equipped with machine guns and trained to shoot to kill when they perceived themselves to be in danger and send them into a small, badly lit room where the young couple were. It is evident that this plan and use of force exposed Elsie Constantinou and Lefteris Andronicou to a foreseeable risk of being killed. This could have been avoided had the operation been carried out with more caution and in greater conformity with the requirements of Article 2.

I therefore find that the deaths of Elsie Constantinou and Lefteris Andronicou resulted from the use of force which was more than absolutely necessary for the purposes of defending Elsie Constantinou’s life or arresting Lefteris Andronicou, in breach of Article 2 of the Convention.

partly concurring, PARTLY dissenting opinion of judge pekkanen

The authorities had plenty of time, more than twelve hours, between the arrival at the scene of the first policemen at around 10.30 on the morning of Christmas Eve, 24 December 1993, and the culmination of events at midnight on the same day. During this period it should have been possible for the authorities to find a peaceful solution. However, the negotiations were not, in my opinion, carried out effectively and in a proper manner.

Since it was Christmas Eve, there were understandable difficulties in finding the responsible personnel and organising the negotiations. The description of the events gives the impression that the leadership of the operation changed hands from one policeman to another of higher rank at frequent stages in the early phases of the incident. The leadership was then assigned to a relatively young policeman who had no previous experience of handling such a situation. It is also obvious from the facts that the leaders did not act in any coherent way. The only plan that was really formulated and agreed on was the use of MMAD officers. Even taking into account that

this was the first time a situation like this occurred in Cyprus, the actions of the authorities were to my mind seriously deficient and lacking in coordination.

Negotiations can only be successful if an atmosphere of confidence is created between the police negotiator and the aggressor. In this respect it is very important that only one negotiator represent the authorities and discuss with the aggressor, in this case after the members of the family had failed in their efforts to persuade Lefteris Andronicou to abandon his action. The worst mistake in this respect was that Lefteris Andronicou had throughout an open telephone line which was used, in addition to the negotiator, by members of the families, a former employer of Lefteris Andronicou as well as by friends and acquaintances. This resulted in confusion. The negotiator could not reach Lefteris Andronicou when he wanted to speak to him and even the rescue operation lost its element of surprise as a consequence of the line being open. Even more important was the fact that there was no coordination of the messages given to Lefteris Andronicou – one caller even threatened him (see paragraph 45 of the judgment) – which naturally made it very difficult for the negotiator to form a relationship of trust and for Lefteris Andronicou to make a correct assessment of the situation at hand. In addition, even the official negotiator himself at one moment threatened to break down the door and enter the flat unarmed (see paragraph 50 of the judgment).

Lefteris Andronicou also repeatedly stressed that he was afraid of the police and that he wanted them to withdraw. In spite of this there was a strong police presence around the flat which naturally increased Lefteris Andronicou’s anxiety. His anxiety was also increased by the presence of a large number of bystanders near the flat and by the intensive media coverage which Lefteris Andronicou could follow. The police could clearly have prevented or at least minimised these interferences.

this stage it is useless to speculate as to what Lefteris Andronicou would have done at midnight had the police not attacked.

The use of machine guns in the circumstances of the present case seems to me to be an excessive use of force. The use of that kind of fire power against a frightened young man cannot be considered to be absolutely necessary even if he had the possibility to fire two shots with his shotgun. Taking into account especially that the main purpose of the operation was to save Elsie Constantinou’s life, the use of machine guns in a very small room was not strictly proportionate to that aim. On the contrary, it unnecessarily endangered her life as well as Lefteris Andronicou’s life. It should also have been possible to find sources of lighting for the attack other than the flashlights attached to the machine guns.

PARTLY CONCURRING, partly dissenting OPINION OF JUDGE MIFSUD BONNICI

“The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision is taken.”

The Commission appears to have based its finding on what the Court decided and stated in the case of A. v. France (judgment of 23 November 1993, Series A no. 227-B, p. 48, § 32):

“… an applicant who has exhausted a remedy which is apparently effective and sufficient cannot be required also to have tried others which would have been directed to the same end and would in any case not have offered a better chance of success or which are probably ineffective.”

However, it is not correct to rely on that judgment. In the A. v. France case the Court considered that, once Mrs A. had joined the criminal proceedings against the persons who had violated her right to privacy and confidentiality of her telephone communications and had presented her claim for compensation in the criminal proceedings “and pursued the said proceedings to their conclusion” (ibid., § 32), her failure to take further

actions to claim compensation could not be deemed to mean that she did not in fact exhaust as a consequence the remedy afforded by the domestic legal order.

Clearly, domestic law should have been given the opportunity to give answers to all these questions.

“were not binding on a domestic civil court, they were likely in practice to remove any reasonable prospects of success which a civil claim for damages may have offered the applicants. Accordingly, the applicants’ decision not to accept the Attorney-General’s ex gratia offer of legal aid and to institute civil proceedings on the strength of that offer could be considered to have been justified in the circumstances”.
“It is surprising that the applicants did not take up the offer immediately, given their need of financial assistance to institute proceedings and their determination to sue the authorities. It is significant in this respect that they had no hesitation in accepting the Government’s earlier offer to cover the costs and expenses incurred through their participation in the proceedings of the commission of inquiry.”

This conclusion in my opinion practically cancels the previous finding in paragraph 161 wherein the refusal of the applicants to accept the Attorney-General’s offer not only exempted them from pursuing their determination to sue the authorities in the domestic courts but that that refusal could also be considered “justified in the circumstances” (see paragraph 7 above).

PARTLY CONCURRING, partly dissenting opinion of judge jungwiert

(Translation)

I cannot concur with the majority of the Chamber inasmuch as they find that there has been no violation of Article 2 of the Convention.

A fundamental question arose in this case: was the use of force, as actually deployed, absolutely necessary?

In my opinion, the concept of “absolutely necessary” must be understood as meaning that there is no other possible course of action.

To my regret, the reasoning in the judgment does not correspond to that interpretation.

In the rescue plan and the armed intervention there was a serious and unnecessary disproportion between the means used and the situation that had to be faced.

It is regrettable that the operation, whose only objective aim was to save Elsie Constantinou’s life and arrest Lefteris Andronicou, was carried out without the necessary care and appropriate consideration for the person concerned.

Having considered the behaviour of the police special forces (MMAD) and especially the way in which they were commanded, for which the Government of the respondent State are fully responsible, I continue to believe that the operation was marked by a lack of organisation and appropriate equipment.

Lefteris Andronicou was hit by at least twenty-five bullets fired by automatic weapons. He collapsed after the first few shots but the officers of the MMAD continued to fire.

Using machine guns in a small confined space without proper lighting and knowing that the very person to be rescued was next to or in front of the person being aimed at, Lefteris Andronicou, seems to me more than irresponsible.

In order to achieve the desired objective, there were other readily available means. The manifest shortcomings of the organisation and management of the rescue operation in actual fact brought about the opposite of what was sought to be achieved. In my opinion, it was difficult to imagine a worse outcome of the operation: there is no doubt that Elsie Constantinou’s death was caused by the machine-gun bullet which, according to Dr M. Matsakis, penetrated the lung, liver and stomach. The question arises how a single bullet could strike the lung and stomach if Elsie Constantinou was in a vertical position. Or did the officers shoot at her again after she had collapsed like Lefteris Andronicou? In the opinion of the medical experts, Elsie Constantinou would certainly have survived if she had sustained only the injuries caused by Lefteris Andronicou’s gun.

That being so, it is difficult to take the view that the use of lethal force did not go well beyond what was “absolutely necessary” to protect the lives of Elsie Andronicou and the MMAD officers.

I consider that the argument in the judgment that is founded mainly on acceptance of the hypothesis that the action of the officers (nos. 2 and 4) was based “on an honest belief which [was] perceived, for good reasons, to be valid at the time but subsequently turn[ed] out to be mistaken” is wrong. It could be valid where there was no one in command. Accepting such reasoning would presuppose overlooking that the officers were simply carrying out the orders of their superiors. Their choice of the means to be used and the approach to adopt was already very limited once the operation had been launched, and they may bear only a very limited responsibility. The full responsibility rests with those who planned and directed the operation and also with those who organise and oversee police work in general.

That is a brief statement of the reasons which lead me to the same conclusion as the Commission, that is to say that the deaths of Elsie Constantinou and Lefteris Andronicou were the result of a use of force that was not absolutely necessary in defence of others from unlawful violence or in order to effect a lawful arrest, within the meaning of Article 2 § 2 (a) and (b) of the Convention.

It is for these reasons that I consider that in the instant case there has been a violation of Article 2 of the Convention.

dissenting opinion of judge pikis

There are three issues to be resolved, which merit separate consideration.

(a) Abuse of the right of petition. This refers to abuse of the process to seek relief before the European Commission and subsequently the European Court of Human Rights for violation of the rights guaranteed by the European Convention on Human Rights. Article 27 § 3 of the Convention renders inadmissible proceedings which constitute an abuse of the process before the organs of the Convention.

(b) Exhaustion of domestic remedies. Article 26 of the Convention makes exhaustion of the remedies available under domestic law a prerequisite before an aggrieved party can validly have recourse to the Convention organs and before the latter can take cognisance of the case. The process established by the Convention is remedial, intended to ensure that breaches of the Convention are remedied and, if that is not feasible, that appropriate relief is provided. Only if domestic proceedings are exhausted and a breach of the rights secured by the Convention remains unredressed can a party legitimately file a petition under Article 25. Correspondingly, the obligation of a State party to answer for breaches of the Convention is confined to cases where its competent authorities, mainly but not exclusively, the judicial authorities, fail to put the breach right, including the award of satisfactory compensation. The applicant can be absolved from the duty to exhaust internal remedies only if the outcome of domestic proceedings is a foregone conclusion, either because of the ineffectiveness of the judicial system or the absence of a real prospect of success (see, inter alia, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and decisions 1996-VI). Mere doubts as to the chance of success will not suffice (see Donnelly v. the United Kingdom, applications nos. 5577–5583/72, decision of 15 December 1975, Decisions and Reports (DR) 4, p. 4; McDonnell v. Ireland, application no. 15141/89, decision of 15 February 1990, DR 64, p. 203).

(c) Violation of the right to life safeguarded by Article 2 of the Convention. The right to life is all-embracing and is to be protected at all times and in all circumstances. The only exceptions are those specified in Article 2 to which a restrictive interpretation is given in order to ensure the efficacy of the right (see, inter alia, Kathleen Stewart v. the United Kingdom, application no. 10044/82, decision of 10 July 1984 on the admissibility of the application). The recent decision of the Court in the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324) puts, to my understanding, the duty of the State to protect the life of the individual on a higher pedestal than hitherto. An operation that carries with it danger to life must be planned and controlled in a way eliminating every foreseeable element of unnecessary risk to life on account of the use of force. The duty of the State when confronting a challenge to social order involving risk to life is not discharged by confining its reaction to the use of force proportionate to the risk involved. The State has the added duty of planning as well as controlling the operation so as to limit the circumstances in which force is used and, if the use of force is unavoidable, to minimise its effects.

In addressing the issues raised for consideration the Court, although not bound by the findings of the Commission, is as a rule guided by them. The Court recalled in the McCann and Others judgment that, under the general scheme of the Convention (Articles 28 § 1 and 31), the establishment and verification of the facts are primarily a matter for the Commission. This approach reflects the fact that the Commission is par excellence the fact-finding body for violations of the Convention (see, inter alia, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32). The position is different with regard to the inferences that may be drawn from the findings of the Commission. The Court is in the same position as the Commission in assessing their implications and drawing inferences therefrom.

In this case the findings of the Commission, with few exceptions of no great consequence, are accepted by the parties. The dispute centres on their effect and consequences in law. I accept the findings of the Commission and, generally, its approach to the matters in issue, subject to the following qualification: the Commission did not address and in my view failed to advert to the implications on the admissibility of the application of the finding that the applicants had an effective remedy before the Cyprus courts of which they did not avail themselves.

A. Abuse of process

It was argued on behalf of Cyprus that the proceedings are an abuse of the right of petition on account of the rejection by the applicants of an offer by the Government of Cyprus to compensate them on an ex gratia basis. The suggestion implied that the sum could be negotiated. The question raised requires us to decide whether an ex gratia offer to compensate a party injured because of a claimed breach of the Convention can be a substitute for the vindication of the right allegedly breached before a competent court or tribunal. The answer is in the negative. The process envisaged by the Convention is designed both for the ventilation of the right allegedly derogated from, the identification of breaches of the Convention and the award of consequential relief. The offer of an ex gratia payment leaves the right allegedly violated in limbo and renders the relief a benevolent act of the State. It might be otherwise if the liability of the State was acknowledged and the offer of compensation was meant to forestall judicial proceedings which the victim of the violation would be free to pursue if no

agreement were reached. The Government’s objection to the admissibility of the proceedings on account of abuse of process fails.

B. Non-exhaustion of domestic remedies

In order to appreciate and evaluate the issue of non-exhaustion of domestic remedies in a proper perspective, brief reference must be made to the history of the proceedings, the identity of the applicants, the nature of the rights sought to be vindicated and the background to the case.

The applicants are (a) Andreas and Paraskevoula Andronicou, the father and sister of Lefteris Andronicou, deceased, respectively, and (b) Gregoris and Yiolanda Constantinou, the parents of Elsie Constantinou, deceased.

The applicants pursue the present proceedings in a personal, not in a representative capacity, as the administrators of the estates of Andronicou and Constantinou.

No proceedings were taken by any of the applicants to assert their rights and seek relief before the courts of Cyprus. In their application to the Commission, the failure to do so is attributed to lack of the necessary means to meet the costs of legal proceedings, thereby preventing them from having access to a civil court in Cyprus competent to determine their civil rights and obligations. Because of this impediment they were, as they claimed, unable to pursue proceedings in Cyprus. Consequently, they petitioned the Commission for relief claiming in the first place that they were denied their right of access to a court of law guaranteed by Article 6 § 1 of the Convention, a denial that opened the way for the institution of proceedings under Article 25 of the Convention.

The foundation of the applicants’ claims for relief remained obscure. Andreas and Paraskevoula Andronicou are neither heirs of Lefteris Andronicou nor representatives of his estate. The children of Lefteris Andronicou, his heirs, instituted, as it emerged, proceedings in Cyprus through the administrators of the estate of the deceased (their mother and a third party) against the State for damages for loss occasioned to them because of the death of their father. The case was settled and judgment was given in their favour against the Republic of Cyprus for a sum approved by a competent civil court as just compensation for the damage they had suffered. They were also awarded their legal costs.

Likewise, the claim of Gregoris and Yiolanda Constantinou is a personal one for damages for the loss suffered as a result of the death of Elsie Constantinou.

It is acknowledged by the applicants that they could pursue proceedings in Cyprus for the vindication of their rights and recovery of compensation. The basic reason given for not doing so was that they lacked the necessary means to meet the costs of the proceedings.

Under Cyprus law, only the personal representatives of the deceased, that is the administrators of his estate, can maintain an action on behalf of his estate (see Cyprus Legislation, section 58 of the Civil Wrongs Law, chapter 148, and the Administration of Estates Law, chapter 189), for damage to the estate and loss to his or her dependants. If the administrators fail to take an action, the dependants may do so themselves. Proof that they depended on the deceased for support is essential for the success of any such claim.

Put at their highest the claims of both groups of applicants are for loss of support by the deceased in the future as a result of the deaths of Lefteris Andronicou and Elsie Constantinou caused by the breach of their right to life. Their claim is founded on the loss of an expectation forecast to materialise at an unspecified time in the future. This is how they depict their claim for compensation at paragraph 6 of their written submissions under Article 50:

“As for the ‘dependency’ claim, the Applicants submit that it was fully expected that had Lefteris Andronicou and Elsie Constantinou lived, they would have supported the Applicants in their old age. In other words, there would have come a time when Lefteris Andronicou and Elsie Constantinou, as part of the Applicants’ families, would have contributed financially to the well-being of the Applicants.”

In their application the applicants alleged that the laws of Cyprus on the use of lethal force are vague and general and consequently fail to give effect to the provisions of Article 2 of the Convention, a lapse that in itself constitutes a violation of Article 2. This contention of the applicants was not pursued before the Commission and was expressly abandoned in their memorial (see paragraph 2). In their submissions under Article 50, they acknowledge that the law of Cyprus not only makes adequate provision for the compensation of victims of violations of the rights guaranteed by the Convention but also renders the State liable for exemplary damages in circumstances involving oppressive, arbitrary and unconstitutional action by “servants of the Government”.

The European Convention on Human Rights has been incorporated into and made part of Cyprus law as from 1962 by virtue of ratification Law no. 39 of the same year. Like any other Convention satisfying the test of reciprocity, its provisions override those of municipal legislation in the event of a conflict between the two, as laid down in Article 169 § 3 of the Constitution. Furthermore, the rights enshrined in the Convention are also in the main embodied in the Constitution of Cyprus, including the right to life guaranteed by Article 2. They are incorporated in Part II of the Constitution under the heading “Fundamental Rights and Liberties”. Article 35 of the Constitution, the ultimate section of this Part of the Constitution, imposes a duty on the legislative, executive and judicial authorities of the State –

within the limits of their respective competences – to ensure the efficient application of the human rights entrenched therein.

The provisions of Article 2 of the Convention are in all important respects incorporated into and made part of Article 7 of the Constitution.

Article 172 of the Cyprus Constitution renders the State liable for unjust (wrongful) acts or omissions causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic. The liability of the State under Article 172 is all-embracing and a fortiori includes violations of fundamental human rights (see the following Cypriot cases: Kyriakides v. Republic 1 RSCC 66; Vrahimi and Another v. Republic 4 RSCC 121; Georghiou v. Attorney-General [1982] 1 CLR 938; Alexandrou v. Attorney-General [1983] 1 CLR 41; Pitsillos v. Republic [1984] 1 CLR 780).

In my opinion, the application is ill-founded and ought to have been dismissed as inadmissible. In the Airey case (cited above), it was emphatically decided that the Court is endowed with full jurisdiction to determine questions of admissibility. In this, as in other respects, the Court is in the same position as the Commission and enjoys similar powers to determine issues relevant to the admissibility and outcome of the application.

Irrespective of any other objection to the admissibility of the application, its fate ought to have been sealed by the finding of the Commission made in paragraph 197 of its report that the applicants had an effective access to the courts of Cyprus for the determination of their civil rights and obligations, of which they did not avail themselves. Paragraph 197 of the Commission’s report reads as follows:

“However, on 7 June 1995 the Attorney-General informed the applicants’ lawyer that ‘the State [would] cover any advocates’ costs that the dependants of the deceased may sustain if and when they decide to bring a civil action for damages against anyone on the basis of the facts which led to the tragic deaths of Elsie Constantinou and Lefteris Andronicou’. This offer remained valid until 20 July 1995, when it was withdrawn. The applicants had for more than a year the possibility to institute civil proceedings for the deaths of their relatives by accepting the Attorney-General’s offer. It follows that they could have had effective access to the courts for the determination of their civil rights and obligations.”

Reference to the offer having been kept open for more than a year is an obvious mistake. The offer was only open between the dates specified in paragraph 197, that is between 7 June 1995 and 20 July 1995.

The failure of the applicants to pursue domestic proceedings providing an avenue for the effective determination of their rights as found by the Commission renders their application inadmissible for failure to exhaust domestic remedies. The inference I draw is that the applicants sought to bypass domestic proceedings without any justification whatsoever.

The exhaustion of domestic remedies prior to having recourse to a supranational or international court or tribunal for the vindication of a right is a rule of international law that is incorporated and finds expression in Article 26 of the Convention. In the cases of De Wilde, Ooms and Versyp v. Belgium (judgment of 18 June 1971, Series A no. 12) it was pointed out that States are under no obligation to answer before an international body, court or tribunal for their acts before they have had an opportunity to put matters right through their own legal system (see also the Airey case cited above).

As in other areas of the Convention, the rule adopted in Article 26 must be given effect without undue formalism and must be applied with a degree of flexibility excusing non-exhaustion wherever domestic proceedings would be a fruitless exercise (see the Cardot v. France judgment of 19 March 1991, Series A no. 200; and the Castells v. Spain judgment of 23 April 1992, Series A no. 236).

In his statement before the Court Mr Trechsel made the following submission on behalf of the Commission with respect to the issue of non-exhaustion of domestic remedies.

“The question of non-exhaustion has been raised again. I think one of the main arguments against non-exhaustion should be that there was no effective chance – I would suggest – of successful court proceedings for damages in view of the result of the commission of inquiry’s work.”

The above proposition comes into direct conflict with the findings of the Commission in paragraph 197 of its report (quoted above) and cannot be sustained as part of the findings and conclusions of the Commission. Furthermore, it is premised on a misconception of the status and competence of a commission of inquiry and the effect of its findings.

A commission of inquiry is not a court of law. It has no competence or jurisdiction to make binding declarations on the rights and obligations of anyone; nor, for that matter, to make binding findings of fact. Its findings are not binding on anyone. It is an ad hoc body set up to hold an inquiry into a given matter or area or public activity. The compass of the inquiry (its mandate), is defined by the terms of reference of the commission established by the executive branch of government, the Council of Ministers, for whose benefit and guidance the outcome of the inquiry is principally intended. The establishment and powers of a commission of inquiry are provided for and regulated by law, namely the Commissions of Inquiry Law, Cap. 44 (as amended by Law no. 37/82 and Law no. 84/83). In this case its terms of reference required the one-member commission of inquiry to inquire into the circumstances under which the deaths of Lefteris Andronicou and Elsie Constantinou were caused, to ascertain whether anyone bore responsibility for these deaths and to make suggestions and

observations such as the Chairman would deem necessary (see appendix to the report of the Commission, p. 48). As the Chairman made clear at the outset, the inquiry was no substitute for any other proceedings, nor did its holding have any suspensive effect on the right of an indicidual to have recourse to a court of law in accordance with Article 6 of the Convention or Article 30 of the Constitution, which guarantees a similar right as part of the fundamental rights and liberties of the individual.

The findings of the commission of inquiry are irrelevant and inadmissible in any judicial proceedings. The fact that the inquiry was conducted by the President of the Supreme Court is likewise an irrelevant consideration. To repeat the time-honoured pronouncement of Lord Atkin[5] “…Judges are no respecters of persons …”. The law is their only source of authority and guidance and proven facts the only facts relevant to the discharge of their duties.

The fact that no criminal proceedings were instituted against anyone for the incident under consideration is of no relevance. The responsibility of the State under Article 2 is not contingent on or dependent upon the criminal liability of those directly or indirectly involved in the use of force exposing life to unnecessary risk (see the McCann and Others judgment cited above, p. 51). A State may be liable for a breach of Article 2 without anyone bearing criminal responsibility for the deprivation of the life of another. This is especially true in a case involving lack of proper planning and control on the part of those who organised and approved the operation.

Under the Constitution of Cyprus the institution of criminal proceedings is primarily the responsibility of the public authorities subject to the overriding power of the Attorney-General, an independent officer of the Republic of Cyprus, to initiate or discontinue such proceedings. The jurisdiction of a criminal court in Cyprus is confined to passing judgment on the guilt or innocence of the accused. It has no jurisdiction to inquire into questions of civil liability of the accused or to award damages. Nor is the conviction of the alleged offender a prerequisite for the institution of civil proceedings founded on allegations amounting to a crime, subject to prior notice being given to the Attorney-General of the Republic of the institution of the proceedings (see Cyprus Legislation, proviso to section 67 of the Civil Wrongs Law, chapter 148).

Lastly, it must be noted that the victim of a crime has the right to take a private prosecution (see the Cypriot case of Ttofinis v. Theocharides [1983] 2 CLR 363), subject only to the right of the Attorney-General to take over and continue or discontinue any such proceedings at his discretion.

The findings of the Commission pertaining to the deaths of Lefteris Andronicou and Elsie Constantinou and the consequent liability of the Republic of Cyprus for a breach of Article 2 are not pegged to the criminal liability of those who caused their deaths. On the contrary, it is accepted that the two officers who fired at them and caused their deaths acted under the honest belief that their lives were in imminent danger, a fact that sparked off a reflex reaction with fatal consequences for Lefteris Andronicou and Elsie Constantinou.

The decision of the Commission holding Cyprus responsible for a breach of Article 2 is founded solely on the lack of proper planning and control of the operation. The crux of the decision is that the operation was ill-planned and badly controlled, rendering Cyprus responsible for breach of Article 2.

The validity of the application can also be tested in another way. Assuming the Court found that Cyprus was not responsible for a breach of Article 2, would that finding prevent the applicants from reverting to the domestic courts and seeking remedies they had not exhausted before? I think not. The issues before the two jurisdictions are not identical. The rules of evidence relevant to the proof of the issues before the two bodies are wholly different. In fact the justiciable issues before the two jurisdictions are separate and distinct. In this context we must bear in mind that the choice of means for the ventilation of a right and the procedure applicable before the domestic courts is a matter for the Contracting States. The domestic process does not coincide with the process before the Commission or the Court. It is different. This is one of the reasons why exhaustion of domestic remedies is an essential prerequisite for proceedings to be brought under Article 25 of the Convention. A reverse decision by the Court finding a breach of Article 2 but leaving the applicants dissatisfied with the remedies awarded them would by a similar reasoning leave the door open to them to pursue proceedings before the courts of Cyprus with a view to securing higher compensation.

In my view, the applicants did not pursue domestic remedies to vindicate their rights and obtain relief, far less did they exhaust them. Hence, their application falls to be dismissed for non-compliance with Article 26 of the Convention.

The majority of the Court (seven members) take the view, for the reasons indicated in the judgment, that domestic remedies were exhausted. Inevitably the Court had to concern itself with the merits of the application and decide whether the Republic of Cyprus violated the right to life of Lefteris Andronicou and Elsie Constantinou in the light of the findings of the Commission pertaining to the circumstances of their deaths.

Consequently, the Court had to determine the substantive issue of a breach of the rights of the two deceased under Article 2 of the Convention.

*

* *

The next question I shall address is whether my decision that the application is inadmissible precludes me from participating in the adjudication of the issue under Article 2. After giving due consideration to the matter, I have concluded that there is no such impediment. On the contrary, I am duty bound to take part in the resolution of every issue raised before the Court for determination, including the one under Article 2.

Article 43 of the Convention must first be consulted. It provides:

“For the consideration of each case brought before it the Court shall consist of a chamber composed of nine judges. There shall sit as an ex officio member of the chamber the judge who is a national of any State Party concerned, or, if there is none, a person of its choice who shall sit in the capacity of judge; the names of the other judges shall be chosen by lot by the President before the opening of the case.”

The duty of the Court to consider a case extends to and encompasses, as Article 43 implies, all the issues raised in a given matter, the resolution of which is necessary for a conclusive outcome of the case. The jurisdiction of the Court is indivisible. It is entrusted to the Court as a whole requiring all its component parts, i.e. each member of it, to take part in the resolution of every issue the determination of which is necessary for the outcome of the case. Any other interpretation would make it possible for one or more pertinent issues to be determined by a part of the Court and conceivably by a minority of its members. For instance, if four out of the nine members of the Court voted for non-exhaustion of domestic remedies and abdicated on that account from taking part in the resolution of the substantive issue, the outcome of a case might turn on the decision of three of the nine members of the Court.

The view that it is incumbent upon every member of the Court to address every issue raised in a case is reinforced by the provisions of Article 50 of the Convention conferring jurisdiction on the Court (in its entirety) to address the implications of a finding of a breach and afford consequential relief.

Although I am unable to trace any decision of the Court specifically dealing with the subject under consideration, it appears that the Court has consistently adhered to the view that every issue necessary for the determination of the case must be resolved by all the members of the Court. This emerges from a survey of the voting practice of the Court by Marc-André Eissen (former Registrar of the Court) to which my attention was drawn and entitled “Discipline de vote à la Cour européenne des Droits de l’Homme ?”. A consistent pattern emerges to the effect that members of the Court do in fact address every issue raised before it for consideration without being fettered by their decision on any other issue in the case. It is in this spirit that I shall also address the third substantive question raised before us concerning violation of Article 2, accepting, as I must, the decision of the majority of the Court that local remedies were exhausted. It is upon that premise laid by the decision of the Court that I shall examine the next question calling for resolution and decide, on the strength of the material before us, whether the right to life of Lefteris Andronicou and Elsie Constantinou, safeguarded by Article 2 of the Convention, was violated.

C. Violation of Article 2 of the Convention

I accept, as indicated earlier, the findings of fact made by the Commission relevant to: (a) the events that preceded the operation; (b) its necessity and planning ; and (c) the circumstances leading to the deaths of Lefteris Andronicou and Elsie Constantinou.

At the outset, it must be acknowledged that the necessity of the operation and the action of those who planned and those who conducted it must be judged from the perspective of the time when the events took place and the pressure under which the decision to mount the operation was taken and its planning made. The following passage from the judgment in the case of McCann and Others (cited above) is relevant in this connection:

“[The Court] considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.” (pp. 58–59, § 200)

The police were confronted with a difficult choice, having to steer between two alternatives: to allow on the one hand the impasse in the negotiations with Lefteris Andronicou concerning the release of his captive, Elsie Constantinou, to continue or, on the other, to mount a rescue operation. Both alternatives were fraught with foreseeable risks to the lives of to the occupants of the flat. The threatening innuendoes of Lefteris Andronicou as to what might happen at midnight, his violent behaviour towards Elsie Constantinou exhibited earlier in the day, coupled with his erratic and unpredictable conduct, made the decision of the police to mount the operation for the dual purpose of rescuing Elsie Constantinou and arresting Lefteris Andronicou a reasonable option in the circumstances. No blame is cast by the Commission on the police authorities for taking that decision. What the Commission found to be wrong was the planning of the operation. Because of its shortcomings, the lives of Lefteris Andronicou and Elsie Constantinou were exposed to risks that could have been avoided had the operation been planned more adequately and prudently. The planning of the operation, as I construe the report of the Commission, was deficient, betraying a lack on the part of the Cypriot authorities of the concern required by Article 2 for the lives of Lefteris Andronicou and Elsie Constantinou in four material respects.

(a) Insufficient consideration was given to the fact that Lefteris Andronicou was not a terrorist or a hardened criminal.

(b) The choice of MMAD officers to carry out the rescue operation carried foreseeable risks to the lives of Lefteris Andronicou and Elsie Constantinou that could have been avoided had the task been entrusted to a police force with a different training and approach to such an operation. The MMAD officers were trained to shoot to kill if they came under fire or perceived immediate danger to their safety. In those circumstances, they could foreseeably be expected to react by shooting to kill.

(c) Equipping the MMAD officers with machine guns was not warranted by the risks inherent in the operation for the safety of the task force and unnecessary for the success of the operation. The availability of machine guns increased unnecessarily the risks to the lives of Lefteris Andronicou and Elsie Constantinou. Their possession was not warranted either by the weapon known to be at the disposal of Andronicou (a non-automatic weapon) or the inherent hazards of the operation.

(d) The information that Lefteris Andronicou might be in possession of weapons other than the shotgun had no foundation and ought to have been discarded. A fair inference from the findings of the Commission is that the passing on of this information to the officers entrusted with carrying out the rescue operation magnified in their minds the dangers inherent in the operation and made Lefteris Andronicou appear a far greater source of danger than he was. The inevitable result was to enhance their readiness to use lethal force.

In my view the findings of the Commission are warranted by the evidence relevant to the events leading to the deaths of Lefteris Andronicou and Elsie Constantinou. Equally justified is its conclusion that the planning and control of the rescue operation was faulty to the extent of rendering the respondent, the Republic of Cyprus, liable for a breach of Article 2 of the Convention. The operation exposed the lives of Lefteris Andronicou and Elsie Constantinou to risks that could have been avoided had it been planned with more diligence and greater awareness of the duty under Article 2. The non-elimination by State authorities of avoidable risks to the lives of others in the planning and control of an operation with inherent danger to their lives constitutes a breach of Article 2 (see the McCann and Others judgment cited above).

The events that followed the forcible entry by the MMAD officers into the flat occupied by Lefteris Andronicou and Elsie Constantinou revealed to

the full the inadequacies in the planning of the rescue operation and the lack of proper control of its execution. Below, I explain why.

(1) The ill-advised choice of officers trained to shoot to kill if they perceived danger to their safety had disastrous consequences. After apprehending danger to themselves following the fall of their two colleagues, they (the members of the team identified as Officers nos. 2 and 4) reacted by firing at Lefteris Andronicou with a view to killing him. Such was their training that they continued firing at him long after it was evident that he lay motionless on the ground, posing no danger to their safety. At no time did they give thought to moderating their reaction in view of the presence of Elsie Constantinou, whose safety ought to have been uppermost in their minds and in those who planned the operation. Elsie Constantinou was used as a shield by Lefteris Andronicou. In directing their fire – twenty-nine shots – the two officers involved do not appear to have discriminated between Lefteris Andronicou, whom they perceived as posing a threat to their lives, and Elsie Constantinou, whom they were entrusted with rescuing. At no time do they appear to have given thought to firing at Lefteris Andronicou with a view to disabling and neutralising him as a potential source of danger. The officers’ reaction was in large measure the result of their training.

The fact that the use of lethal force is, as made clear in McCann and Others, the result of reflex action is neither an excuse nor a justification for acts incompatible with the duty under Article 2 of the Convention; not even when dealing with dangerous terrorists. The following passage from paragraph 212 of the McCann and Others judgment is instructive on the subject:

“Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement.”

In this case, no specific instructions were given to the chosen team (the MMAD platoon) as to how they should confront danger. The conduct of the operation was very much left to the discretion of the officers assigned to the task, a fact in itself indicative of the lack of proper control of the operation and of absence of due regard for the lives of Lefteris Andronicou and Elsie Constantinou.

(2) There was no proper foundation for the information that Lefteris Andronicou was in possession of any weapon other than the double-barrelled shotgun. On the contrary, all the indications were that he had no other weapon available to him; neither the background of Lefteris Andronicou nor his previous conduct could lend credence to the information. Its unwarranted communication to the officers assigned to the operation, coupled with the weight that they could be expected to attach to information coming from an official source, increased their sense of the danger inherent in carrying out the operation and correspondingly their readiness to use lethal force.

(3) Arming the MMAD platoon with machine guns was wholly unwarranted – all the more so in view of the training of the officers who carried them and the knowledge that the police authorities ought to have had of the likely reaction of those officers when perceiving danger to their safety. The fact that the machine guns were fitted with lighting apparatus was no excuse. The armoury of the MMAD officers was disproportionate to the risks involved in the operation and counter-productive to its life-saving objective. The carrying of automatic weapons introduced foreseeable dangers for the lives of Lefteris Andronicou and Elsie Constantinou that could have been avoided by restricting the equipment of the officers to lighter arms. The end result of the bad planning and lack of proper control of the operation was that two of the members of the platoon, perceiving danger to their safety, made unrestrained use of their machine guns regardless of the consequences. And the consequences were fatal.

Notes by the Registrar

[2]. The case is numbered 86/1996/705/897. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3]. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.

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