The European Court of Human Rights (First Section), Sitting on 4July 2002 As a Chamber

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56354/00
by Dave PARRIS
against Cyprus

The European Court of Human Rights (First Section), sitting on 4July 2002 as a Chamber composed of

MrC.L. Rozakis, President,
MrG. Bonello,
MrL. Loucaides,
MrP. Lorenzen,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
MrE. Fribergh, Section Registrar,
Having regard to the above application introduced on 15 May 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, MrDave Parris, is a British national. He is now detained in the Central Prison of Nicosia, in Cyprus. He is represented before the Court by MrM.Shaw, professor of Law and barrister practising in London.

A.The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 24 February 1996 Mrs Augustina Parris was found dead in the apartment where she lived with her husband. Some hours later her husband was arrested and charged with manslaughter. The applicant contended that his wife had committed suicide by throwing herself out of the second floor window on the pavement below. The police reported to the coroner that there was reasonable suspicion of violent death or death brought about by an unknown cause. The coroner instructed pathologists Professor Psaroulis and E. Antoniou to carry out a post mortem examination of the body of the deceased. The examination was carried out on the same day by these pathologists in the presence of Dr Matsakis (also a pathologist) who was present as representative of the family of the deceased and as an observer in pursuance of a relevant order by the coroner. The pathologists concluded that a deep fracture of the scull and brain and the inhaling of a quantity of blood had led to the victim’s suffocation. In particular, Professor Psaroulis noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream. Moreover, the bleeding of the nose, the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window.

The coroner made an order for the immediate burial of the body.

Dr Matsakis had also carried out a review of the scene of the crime, at the request of the victim’s family, in which he noted : “Regarding the above spots and splashes of blood, it is the suggestion of the witness that they prove the manner in which the deceased fell from the second-floor window. In particular, the witness is of the opinion that the body was not ejected, as it happens in the ordinary cases of persons falling by their own will, but it fell after having come in touch with the front surface of the ledge under the window of flat n° 4.”

After the post-mortem examination of the body, Dr Matsakis concluded as follows: “In the area of the throat and the respiratory system, the witness observed multiple bruises on the soft tissues in the area of the larynx, in the front and the sides. The appearance, the size and the position of the bruises suggested that they had been caused by the exertion of forceful pressure by human fingers. He also observed a suppressed total fracture of the right front gristle of the larynx. According to the witness, this fracture suggests the exertion of forceful pressure by the edge of a human thumb.”

On 27 February 1996, the father of the victim filed an ex-parte application for ordering Dr Matsakis to carry out a second post mortem examination. On the same day, the coroner dismissed the application. On 28February upon request of the relatives of the victim and the oral authorisation of the Attorney General and the police, Dr Matsakis carried out a second post mortem examination of the body. The cause of death given by Dr Matsakis was strangulation.

On 28 March 1997 the applicant was convicted by the Nicosia Assize Court of the offence charged and sentenced to 15 years imprisonment. The applicant challenged the accuracy of the second post mortem examination. DrMatsakis was exhaustively cross-examined and the defence called their own expert witness, a professor of forensic pathology at the GlasgowUniversity. The Assize Court evaluated both reports and decided to accept the evidence provided by Dr Matsakis by a reasoning covering 13 pages of the judgment.

The applicant appealed on points of law to the Supreme Court.

On 5 May 1999 the Supreme Court dismissed the applicant’s appeal. It based its decision, inter alia, on the Schenk judgment of the European Court.

The Supreme Court held that the second post mortem examination was illegal because, in the circumstances, it amounted to a breach of Section15(2) of the Coroners Law and of the order to bury the body made thereunder.

The Supreme Court further held: “The relatives of the victim had applied to the coroner for leave for the carrying out of a second post mortem examination. Their application was dismissed. Instead of seeking to quash this ruling through the procedures provided for by law, they sought and succeeded the carrying out of a post mortem examination through a relevant oral authorisation of the Attorney General of the Republic and the police. What actually happened, amounted to getting around the ruling of the coroner not through the procedures provided for by the law but through means which are unknown to the law”.

The Supreme Court added that the fact that the prosecution had the initiative in the preliminary examination and in gathering material of evidence did not render the trial unfair. The applicant had the opportunity to cross-examine witnesses against him and enjoyed a full equality of arms in the proceedings.

Furthermore, the Supreme Court held: “However, we note that the relevant illegality was brought about in an effort to help the relatives of the victim, who, in their distress, were seeking a second opportunity to investigate the circumstances in which their beloved met her death”. The Supreme Court further stressed that besides the evidence of DrMatsakis, there was the evidence of the victim’s father, who was at the flat of the first floor, right below the couple’s flat, and whose narration reads as follows in the Assize Court’s judgment: “Then, he heard a loud shout by the accused like roaring (he imitated the roaring in the court room) and a few seconds later the noise of something like a bundle falling on the floor. Then, after a few seconds, he heard something like dragged steps as if somebody was dragging something heavy, furniture being bumped and the noise of a window or a door being opened.”

B.Relevant domestic law and practice

Article 15 § 2 of the Coroner’s Law Cap. 153 provides:

“An order authorising the burial or other disposal of a body upon which it has been decided to hold an inquest may be issued by the coroner at any time after the body has been viewed.”

Under the domestic laws of the Republic, a distinction is drawn between the admissibility of illegally obtained evidence according to the nature of the illegality. In the leading case of the Police v. Andreas Georgiades (1982) 3 CLR 33, the Supreme Court held in the light of Articles 34 and 35 of the Constitution that evidence obtained in violation of constitutional rights and liberties was inadmissible.

If evidence is obtained by other illegal means, its admissibility is a matter falling within the discretion of the trial court. The domestic courts have adopted the principles established by the English common law as set out by the House of Lords in the case of R. v. Sang (1979) 2 All E.R. 1222. In practice, the test applied under the common law is the same as that now applied in England under section 78 of the Police and Criminal Evidence Act1984, which was explained in paragraph 38 of the Court’s judgment in the case of Kahn v. the United Kingdom.

COMPLAINTS

1.The applicant alleges a breach of his right to a fair hearing, guaranteed by Article 6 § 1 of the Convention, because he was convicted on the basis of a sole evidence obtained in breach of the relevant domestic law.

2.The applicant also claims that there has been a breach of Article 13 of the Convention in that the legal system of Cyprus does not provide an effective remedy with regard to a situation where evidence is illegally obtained provided that no constitutional provision has been breached.

THE LAW

The applicant alleges a violation of Articles 6 § 1 and 13 of the Convention which read as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contend that the illegal post mortem examination by DrMatsakis was not the sole evidence on the basis of which the applicant was convicted.

The testimony of Dr Matsakis contained evidence which was “obtained” by him through a review of the scene of the crime, the first post mortem examination and the second one. The illegality was exclusively confined to the second examination. Vital findings were made in the first examination and the review of the scene of the crime. What Dr Matsakis actually did during the second post-mortem examination was merely to verify further the findings he had already made. The Supreme Court found that the evidence which was the result of the first examination and in relation to which no objection was raised, led to the conviction of the accused. Besides the evidence of Dr Matsakis, there was the evidence of the victim’s father, who provided full support for the version of Dr Matsakis. Finally, the contradiction between the evidence provided by Dr Matsakis and that of MrPsaroulis had no bearing on the question of innocence of the applicant.

The Government invoke the principles enumerated by the Court in the cases of Schenk v. Switzerland (judgment of 12 July 1988, series A no.140) and Kahn v. the United Kingdom (judgment of 12 May 2000, n°35394/97) and concludes that there are no grounds on which to distinguish these cases from the present case. Even in a sole evidence case (such as Kahn), evidence obtained in breach of the Convention rights does not necessarily breach an applicant’s right to a fair trial. The present application was not a sole evidence case. The applicant was given the opportunity both at trial and on appeal to challenge the admission of the evidence on the basis of Article6 of the Convention. He challenged the accuracy of the second post mortem examination. Dr Matsakis was exhaustively cross-examined and the defence called their own expert witness in an effort to cast doubts on the accuracy of the conclusions of Dr Matsakis. The alleged “unlawfulness” in the present case was a technical infringement of domestic law which did not interfere with any Convention rights of the applicant. The Coroners Law is intended to protect the integrity of the body of the deceased and not the rights of the accused.

The applicant submits that the Government had wrongly interpreted the sequence of events and contests their approach consisting in distinguishing three separate pieces of evidence. The review of the scene of the crime forms part of the actual post mortem procedure and cannot be divorced from it. If illegally obtained evidence needs to be excluded by statute on grounds inter alia of fairness, this must also apply to the earlier stages of the same process.

As regards the first post mortem examination, Dr Matsakis was present, as a representative of the family, but played no active part in the proceedings. He did not make any “findings” as the Government claim, since he did not conduct the post mortem. The applicant highlights the contradiction between the first and the second post mortem and submits that the actual cause of death is a matter of great consequence in this case. As the Assize Court rejected that proposed in the first post mortem, it cannot be stated that the results of it constituted evidence upon which the Assize Court relied. As for the evidence of the victim’s father, it could not on its own lead to the applicant’s conviction. As the Supreme Court itself stated, it only lent “support” to the version of Dr Matsakis. It is contrary to equity in criminal procedure to treat evidence which is of its nature capable of convicting an accused as the same as evidence which only tends to corroborate the former.

The applicant stresses that where the sole evidence is illegally obtained and cannot be considered as strong and reliable, then the possibility of a finding of violation of Article 6 § 1 is correspondingly higher. The applicant was convicted upon one sole evidence which was illegally obtained and which cannot be regarded as pointing irrevocably to the decision reached by the courts. The post mortem report cannot be regarded evidentially as in the same category as a clear tape recording of what was essentially a confession, as in the Kahn case.

The Court recalls that in the case of Schenk v. Switzerland the Court held that it cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence may be admissible but it is necessary to ascertain whether the trial as a whole is fair; the Court considered that the defence rights were respected in that case and attached weight to the fact that the disputed evidence was not the only evidence on which the conviction was based. In the case of Khan v. the United Kingdom, the Court, although it found that the evidence on the basis of which the applicant was convicted was obtained in breach of Article 8 of the Convention, it concluded that Article 6 had not been breached.

In the present case, the Court notes that a first post mortem examination was carried out by two pathologists instructed by the coroner. As the family of the victim were not satisfied with the conclusions of the report, they asked the coroner to authorise a second examination. The coroner, who had in the meantime ordered the burial of the body, refused to grant the authorisation. However, the Attorney General gave his authorisation and a second post mortem examination was carried out by another pathologist who concluded that another cause had led the victim’s death.

The Court cannot agree with the applicant that the domestic courts decided the present case on the basis of a single evidence, namely the report by Dr Matsakis. It notes that both reports were put before the Assize Court which decided to base its decision on the second one, which was allegedly obtained contrary to the relevant provisions of the Cypriot law, by a reasoning covering thirteen pages of the judgment. The Supreme Court stressed that besides the evidence of Dr Matsakis, there was also the testimony of the victim’s father whose narration corroborated the findings of Dr Matsakis and which seriously contradicted the applicant’s line of defence that the victim had jumped out of the window by herself. Moreover the Court notes thatthe applicant was able to challenge the accuracy of the second report and its author seems to have been exhaustively cross-examined by the defence who were assisted by a professor of forensic pathology at the GlasgowUniversity. Besides, DrMatsakis carried out a review of the scene of the crime and participated in the first post-mortem examination; his findings therein did not exclude at all, already at that stage, the culpability of the applicant. In particular, Dr Matsakis noted that the appearance, the size and the position of the bruises in the area of the victim’s larynx suggested that they had been caused by the exertion of forceful pressure by human fingers. He also observed a suppressed total fracture of the right front gristle of the larynx; this fracture suggested the exertion of forceful pressure by the edge of a human thumb. Finally, even Professor Psaroulis who carried out the first post-mortem examination and drafted the first report noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream. Moreover, the bleeding of the nose, the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window.

Furthermore, the Court cannot overlook the nature and the scope of the provision of the domestic law which was breached. It notes that Section15(2) of the Coroner’s Law forms part of the provisions regarding the viewing of bodies and as such is primarily intended, as the Government also emphasise, to ensure respect of the corpse of a deceased and not of the procedural rights of an accused.

Finally, the Court notes that the applicant did not fail to draw the attention of the courts to a possible violation of Article 6 of the Convention and that the Supreme Court assessed the effect of admission of the evidence on the fairness of the trial.