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 4 July 2002 as a
Chamber composed of
Mr C.L. ROZAKIS, President,
Mr G. BONELLO,
Mr L. LOUCAIDES,
Mr P. LORENZEN,
Mrs S. BOTOUCHAROVA,
Mr A. KOVLER,
Mrs E. STEINER, judges,
Mr E. 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, Mr Dave Parris, is a British national. He is now detained in the Central
Prison of Nicosia, in Cyprus. He is represented before the Court by Mr M.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 28 February 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. Dr Matsakis was exhaustively crossexamined and the defence called their own expert witness, a professor of forensic
pathology at the Glasgow University. 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 Section 15(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
Dr Matsakis, 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 Act 1984, 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 Dr Matsakis
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 Mr Psaroulis 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 Article 6 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 that the applicant was able to challenge
the accuracy of the second report and its author seems to have been exhaustively crossexamined by the defence who were assisted by a professor of forensic pathology at the
Glasgow University. Besides, Dr Matsakis 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 Section 15 (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.
In these circumstances, the Court considers that the proceedings as a whole were fair.
Finally, as regards the complaint under Article 13, the Court notes that the applicant
raised this complaint before the Supreme Court which dealt with the matter.
Consequently, no issue arises under this Article of the Convention
It follows that the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Erik FRIBERGH
Registrar
Christos ROZAKIS
President