HERAKLEOUS v. CYPRUS
Inadmissible
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
1. The first applicant, Mrs Maria Herakleous, is the widow of Mr Michael Herakleous, who was killed on 11 July 2011, while serving in the National Guard, as a result of an explosion at the Evangelos Florakis naval base near the village of Mari. The second and third applicants, Andreas Herakleous and Solonas Herakleous, are their sons. The applicants are Cypriot nationals and were born in 1967, 1996 and 1991 respectively. They all live in Nicosia. 2. The applicants were represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia. 4. On 11 July 2011 at around 5.50 a.m. an explosion occurred on the Evangelos Florakis naval base. This was caused when ninety-eight containers of explosives, mainly gunpowder, burst into flames. These had been stored out in the open on the base since February 2009, after being confiscated from a Cyprus-flagged Russian-owned vessel – the Monchegorsk, heading from Syria to Iran – for violation of United Nations Security Council’s weapons sanctions. Thirteen people were killed by the explosion and sixty-two people were injured. Substantial damage to property was caused and there was significant financial damage and loss. 5. By an order dated 20 July 2011, and pursuant to the Commissions of Inquiry Law (Cap. 44, as amended at the time by Laws nos. 37/1982 and 84/1983), the Council of Ministers appointed a lawyer in private practice, Mr P.G.P, as a one-member commission of inquiry (“the investigator”), to look into the explosion and the circumstances which had led to it, as well as potential responsibility for the explosion. 6. On 3 October 2011 the investigator submitted an extensive report of over 600 pages to the then President of the Republic (“the President”), the President of the House of Representatives and the Attorney-General. In this, he stressed that, as an investigator appointed under the relevant law, he did not constitute a disciplinary or judicial authority, nor did he act as a coroner. His duties were purely investigative, and his findings and recommendations were not binding. He could not determine or establish legal or criminal responsibility. Any decisions in respect of possible criminal responsibility leading to a prosecution lay exclusively within the competence of the Attorney-General under Article 113 of the Constitution, following a police investigation in accordance with his instructions (see paragraph 17 below). Decisions as to actual criminal responsibility lay exclusively with the courts. He observed that, in his investigation, he had mainly dealt with possible State and/or political responsibility (πολιτειακές και/ή πολιτικές ευθύνες). He was of the opinion, however, that although he could not determine or establish criminal responsibility, he had the right and obligation to express general views on the matter. 7. The investigator, giving detailed reasons for his decision, concluded that both the Minister of Defence and the Minister for Foreign Affairs had very serious responsibilities, both statutory (θεσμικές) and personal. However, he found that the main responsibility lay with the President, who was the head of the State and the Government. The President bore the greatest responsibility for the inadequacy (ανεπάρκεια), negligence and remissness (ολιγωρία) that had been shown, and had failed to take care of or at least take basic measures to ensure the security of the citizens of the Republic of Cyprus, and in particular that of the soldiers and firemen in question. The fate of the cargo had been decided by the executive, which, headed by the President, had completely failed to take the necessary measures to handle the matter, including keeping the cargo safe in Cyprus. The investigator pointed out that the President, over and above his state office and his institutional capacity (πέραν του πολιτειακού του αξιώματος και της θεσμικής του ιδιότητας), had undertaken to deal with the dangerous cargo himself, had had ultimate control over it and had been responsible for taking important decisions on the subject. The investigator also emphasised and explained that he referred not only to the President’s statutory and ex officio (θεσμική και εξ’αξιώματος) political responsibility, but also his significant personal responsibility for the tragic event and its consequences. 8. His comments concerning criminal aspects were general and did not attribute criminal responsibility to any particular person. He expressed the view that the Attorney-General had a duty to examine the possibility that a number of criminal offences might have been committed, including the offences of manslaughter and causing death by reason of a rash, reckless or dangerous act (πρόκλησης θανάτου λόγω αλόγιστης, απερίσκεπτης ή επικίνδυνης πράξης) under sections 205 and 210 of the Criminal Code (Cap. 154). 9. The applicants submitted that the Attorney-General had publicly stated that the report would be taken into consideration in the relevant police investigations, and that such investigations had in fact been initiated in accordance with his instructions. According to the applicants, the relevant police reports were handed to the Attorney-General towards the end of 2011 or the beginning of 2012, but they contained no reference to the President. 10. By a letter dated 11 November 2011 the applicants’ lawyer requested that the Attorney-General seek leave from the Supreme Court to lift the President’s immunity from criminal prosecution. It appears that a similar request had already been made to the Attorney-General by the families of some of the other victims. In the above letter, the applicants’ lawyer expressed the view that the relevant acts and omissions of the President had constituted the offence of manslaughter and had been committed during his term of office and in the exercise of his functions, and not in his private capacity, as alleged in the request made by the other families. It appears that both requests remained unanswered. 11. As the Attorney-General did not take the steps requested, on 14 February 2012 separate applications were filed by the applicants (application no. 3/2012) and the relatives of other victims (applications nos. 1/2012 and 2/2012) under the relevant procedural rules (Rule 15 of the Supreme Constitutional Court Rules of 1962; see paragraph 20 below) for leave to commence proceedings in the Supreme Court for the interpretation under Article 149(b) of the Constitution of certain alleged ambiguities in the Constitution. In the applicants’ application and in application no. 2/2012, those ambiguities concerned the interpretation of the allegedly vague and imprecise terms “offence involving dishonesty” and “offence involving moral turpitude” in Article 45 § 3 of the Constitution, as well as “any offence committed by him [the President of the Republic] in the execution of his functions” in Article 45 § 5 of the Constitution (see paragraphs 18-20 below), and the conflicting interpretation by the applicants and the Attorney-General concerning the possibility of the President being criminally prosecuted before the end of his mandate for his acts and omissions in his handling in general of the matter of the dangerous explosives. As regards the remaining application (no. 1/2012), this focused on a number of disagreements with the Attorney-General as to the provisions of Article 45 and its alleged vagueness. 12. The applications were heard together by the Supreme Court (Full Bench), which rejected them on 29 June 2012. 13. In its decision, the Supreme Court observed that the applicants maintained that the terms “offence involving dishonesty” and “offence involving moral turpitude” included manslaughter, and that they relied on alleged statements by the Attorney-General that the above terms did not cover this offence. The Attorney-General, however, denied that such statements had any legal consequence, even if they had been made. He could not remember making them. It was also admitted that the letters to him on this point from the plaintiffs had never been answered. The question which arose was whether, even if the Attorney-General had made such statements, this disagreement would constitute a “difference of opinion” within the meaning given to this term by the relevant jurisprudence (such a difference being a prerequisite for the Supreme Court’s jurisdiction under Article 149(b) of the Constitution). The Supreme Court considered that this was not the case. It stated that it was not possible for any citizen who disagreed with another person or an authority, by means of only one simple disagreement, to create a “difference of opinion” which would satisfy the relevant provisions of the jurisprudence. Accepting such a position, as proposed by the applicants in the applications before it, would amount to recognising in every case an actio popularis. Moreover, accepting to undertake to interpret the Constitution in the case would simply and solely be a decision on a difference of opinion which constituted a theoretical question, since it could not lead to any consequence. If and when the Attorney-General decided to prosecute the President, only then would it be possible to raise the question of interpretation, and it would then be the duty of the Supreme Court, within the framework of the appropriate procedure, to judge and decide on the content, meaning and legal consequences and effects of the relevant Constitutional provisions. Otherwise, it was not the duty of the Supreme Court to solve theoretical problems and questions which would not themselves have legal consequences. In view of its conclusion about the non-existence of a “difference of opinion”, the Supreme Court stated that there was no need to rule on the other preconditions which needed to be satisfied in order for the leave sought to be given. 14. In the meantime, on 12 March 2012 the Attorney-General had brought criminal proceedings (case no. 4904/2012) against six high-ranking officials before the Larnaca Assize Court: the former Minister for Foreign Affairs, the former Minister of Defence, the former Deputy Commander of the National Guard, the Commander of the Fire Service, the Deputy Commander of the Fire Service (Διευθυντής της Πυροσβεστικής Υπηρεσίας και Αναπληρωτής Διευθυντής της Πυροσβεστικής Υπηρεσίας), and the Chief of the Special Unit for Disaster Response (Ε.Μ.Α.Κ.-Ειδική Μονάδα Αντιμετώπισης Καταστροφών) (“the first, second, third, fourth, fifth and sixth defendants”). They were charged with manslaughter and causing death by reason of a rash, reckless or dangerous act under sections 205 and 210 of the Criminal Code. They each faced separate charges. 15. On 9 July 2013 the Larnaca Assize Court gave judgment. The first and third defendants were acquitted; the second defendant was found guilty of both offences and was sentenced to five years’ imprisonment; the remaining defendants were found guilty of the second offence pursuant to section 201 of Cap. 154, but were acquitted of the remaining charges. They received a two-year sentence of imprisonment. 16. The second, fourth, fifth and six defendants lodged appeals against their conviction and sentence before the Supreme Court (appeal nos. 145/2013, 154/2013-156/2013). The Attorney-General also filed appeals in so far as the first-instance judgment concerned the first, second, and fourth to sixth defendants (appeal nos. 157/2013-163/2013). On 19 December 2014 the Supreme Court dismissed the appeals lodged by the second, fifth and sixth defendants and the corresponding appeals of the Attorney-General, as well as an appeal lodged by the Attorney-General concerning the acquittal of the first defendant. Further, it upheld the appeal of the fourth defendant against his conviction, acquitting him of all charges. Consequently, it dismissed the appeals against his conviction and sentence. 17. Under the Constitution, the Attorney-General is an independent officer of the Republic (Article 112). Article 113 § 2 of the Constitution provides that: “The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.” 18. Pursuant to Article 45 of the Constitution, the President enjoys immunity from criminal prosecution during his term of office. However, this is not absolute, the exceptions being high treason and offences involving dishonesty or moral turpitude. The above-mentioned provision provides as follows: “1. The President or the Vice-President of the Republic shall not be liable to any criminal prosecution during his term of office except under the provisions of this Article. 2. The President or the Vice-President of the Republic may be prosecuted for high treason on a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court upon a resolution of the House of Representatives carried by a secret ballot and a majority of three-fourths of the total number of Representatives: Provided that no such resolution shall be taken and no item shall be entered on the agenda or debated in the House of Representatives in connection therewith unless the proposal for such resolution is signed by at least one-fifth of the total number of Representatives. 3. The President or the Vice-President of the Republic may be prosecuted for an offence involving dishonesty or moral turpitude upon a charge preferred by the Attorney-General and the Deputy Attorney-General of the Republic before the High Court with the leave of the President of the High Court. 4. (1) The President or the Vice-President of the Republic upon being prosecuted under paragraph 2 or 3 of this Article shall be suspended from the performance of any of the functions of his office and thereupon the provisions of paragraph 2 of Article 36 shall apply. (2) The President or the Vice-President of the Republic on any such prosecution shall be tried by the High Court; on his conviction his office shall become vacant and on his acquittal he shall resume the performance of the functions of his office. 5. Subject to paragraphs 2 and 3 of this Article the President or the Vice-President of the Republic shall not be liable to prosecution for any offence committed by him in the execution of his functions but he may be prosecuted for any other offence committed during his term of office after he ceases to hold office. 6. No action shall be brought against the President or the Vice-President of the Republic in respect of any act or omission committed by him in the exercise of any of the functions of his office: Provided that nothing in this paragraph contained shall be construed as in any way depriving any person of the right to sue the Republic as provided by law.” 19. Under Article 149(b) of the Constitution, in the event of ambiguity, the Supreme Court has exclusive jurisdiction to interpret the Constitution in any manner, due regard being had to the letter and spirit of the Zurich Agreement of 11 February 1959 and the London Agreement of 19 February 1959. 20. Pursuant to Rule 15(2)(b) of the Supreme Constitutional Court Rules of 1962, as applied by the Supreme Court, when a reference is not made by a court, proceedings under, inter alia, Article 149(b) of the Constitution shall be commenced “with the prior leave of the Supreme Court, or any two judges acting in agreement, applied and obtained for the purpose, and in such manner as it may be directed upon granting such leave”.