2 C.L.H. 1987 November20 fTRIANTAFYLLIDES Ρ LORIS STYL1ANIDES, JJ ] KENAN M E H M E T MERTHODJA, Appellant, ν T H E POLICE, Respondent (Cnmmal Appeal No 4909) 5 10 15 20 Evidence— Cnmmal evidence — Confessionsand other incnminating statement made to the Police, whilst the maker was being detained contrary toArt 11 of the Constitution — Inadmissible in evidence in virtue of thepnnciple that evidence secured in breach of any of the fundamental rights and liberties safeguardedby theConstitution cannot bereceived in evidencebyany Court in the Republic — Moreover, the oral statements to the police are inadmissible also because they are consequential to the inadmissible confession The appellant, a Turkish Cypnot, was convicted of the offence of publishing information relatingtodefenceworks ofthe Republic, contraryto section 50A of the Cnminal Code, Cap 154,and was sentenced to twelve months' impnsonment Dunng the penod August, 1985 to January, 1986 the appellant remained in thefreearea of the terntory of the Republic In January, 1986 he returned totheoccupied partofCyprus On 7 7 87he escapedfromsuchpart, seeking theprotectionofthe Government ofthe Republic He agreedtobeplacedin «protective custody» At some time before the 12 8 87 he asked to be released On 12 8 87 the appellant gave a wntten statement to the Police On 188 87 he made furtheroral incnminatingstatements Appellant's conviction for the offence aforesaid was based on such confessionandstatements 25 Held, allowing theappeal
(1)From the momenttheappellant askedtobe released, he was being detained in a manner involving depnvation of his libertycontrarytoArticle 11ofthe Constitution,andhisdetention couldonly belegalized if itcould bejustifiedforany one of the reasons setout in Article 227 Merthodja v. Police
(1987)11.2ofthe Constitution and ifa Courtorderhadbeen made,inthisrespect. underArticle 11.6of the Constitution.
(2)Evidence secured inbreach of anyone of the fundamental rights and liberties which are safeguarded by the constitution cannot be received in evidence byany Court of the Republic because, inter alia,of the imperative 5 expressprovisionsofArticle35ofthe Constitution.
(3)Theconfession ofthe 12.8.87isevidencesecuredbythePolicethrough the unconstitutional, at thetime,detention ofthe appellant. {4)The oral statements should have been likewise excluded; they should have,also,been excluded because inanyeventtheyareconsequential tothe 1 0 inadmissible confession of the 12.8.87. Appealallowed. Casesreferredto: ThePolicev,Georghiades
(1983)2C.L.R. 33; Enotiades v.Police
(1986)2C.L.R.64; 15 Psarasv. Republic
(1987)2C.L.R.132; R. v.Phaedonos, 22 C.L.R. 21. Appealagainst conviction. Appeal against conviction by Kenan Mehmet Merthodja who wasconvicted on the 15th September, 1987 at the District Court 20 of Nicosia (Criminal Case No. 29135/87) on one count of the offence of publishing information relatingtodefence works of the Republic contrary tosection 50A of the Criminal Code Cap. 154 and was sentenced by Kallis, D.J. to twelve months' imprisonment. M.Georghiou withN. Yiapanas,forthe appellant. S. Matsas,forthe respondents. TRIANTAFYLLIDES P. gave the following judgment of the Court.The appellant, who isaTurkish Cypriot, wasconvicted of the offence ofpublishing information relatingtodefence worksof 30 the Republic,contrarytosection 50AoftheCriminalCode, Cap. 154,and wassentenced totwelve months' imprisonment. It is obvious from the judgment of the trial Court that the appellant would not have been convicted had there not been treated as admissible evidence againsthimastatement which the 35 appellant gave to the Police on 12August 1987, and which is,in effect, a confession that he committed the aforementioned offence, aswellas,subsequentoralstatementsof theappellant to 228 25 2 C.LR. Mertho4jav.Police Triantafyllidee P. the Police, which he made on 18August 1987, and which were tantamount to confessions. AccordingtohisownstatementtothePolice,whichhemadeon 5 12 August 1987, the appellant had come from the Turkish occupied part of Cyprus to the free area of the territory of the Republic in August 1985 and he remained there until January 1986, when he returned totheTurkish occupied part of Cyprus. According,also,tothesaidstatementoftheappellant,when he 10 returned to the Turkish occupied part of Cyprus he was arrested and interrogated and it was, at that time, that he gave to his interrogators information about defence works of the Republicof Cyprus. Then, the appellant escaped from theTurkish occupied partof 15 Cyprus on 7 July 1987, and sought the protection of the Government of the Republic and was placed in, what has been described as, «protective custody», after he had signed on 8 July 1987 a declaration that he had just come to the Greek «sector», that he was applying for the protection of the Government of the 20 Republic and that for his own safety he had no objection to remaining in protective police custody until the Cyprus Government would investigate into his problem and, he added, thathe did not wish toreturn totheTurkish«sector». We pause here in order to note that the wording of this 25 declaration, which, apparently, was prepared by the Police authorities and was signed by the appellant, ismost unfortunate because itrefers to the Greek «sector»and theTurkish«sector»of Cyprus, whereas there exists only the territory of the Republicof Cyprus, part of which is temporarily occupied unlawfully by 30 TurkishmilitaryforceseversincetheTurkishinvasionofCyprusin 1974, and itis,therefore, not correct inlawor infact, tospeakof the Greek «sector» and the Turkish «sector»of the territoryof the Republic of Cyprus. Itappears clearly from the record before usthat at some stage 35 prior to 12 August 1987, when the appellant gave his written statement to the Police, he asked to be released from protective custodybut thePolice continued detaininghimatapolicestation 229 Triantafyllides P. Merthodja v. Police
(1987)until his case would be fully investigated into. In our opinion, as from that moment onwardsthe appellant wasbeing detained ina mannerinvolvingdeprivation ofhislibertycontrarytoArticle 11 of the Constitution, and his detention could only be legalized if it could be justified forany one of the reasonssetout inArticle 11.2 5 of the Constitution and if a Court order had been made, in ihis respect, under Article 11.6of the Constitution. Itiscommon groundthattheappellantwasnevertakentoCourt in order to be remanded in custody and, therefore, we have to conclude that, at the time when he gave his aforementioned 10 statement to the Police on 12 August 1987, and, also, when he made oral statements to the Police on 18 August 1987, he was being illegallydetained contrary toArticle 11of the Constitution. Itwas laiddown in ThePolicev.Georghiades,
(1983)2 C.L.R. 33, thatevidence secured inbreach ofanyone ofthe fundamental 15 rights and liberties which are safeguarded by the Constitution cannot be received in evidence by any Court of the Republic because, inter alia, of the imperative express provisions ofArticle 35 of the Constitution. The Georghiades case, supra, was referred towith approval in 20 Enotiades v. The Police,
(1986)2 C.L.R. 64 and Psarasv. The Republic (Criminal Appeals Nos.4715,4718, determined on 15 October 1987 and not reportedyet)*. Inouropinion,thestatementobtained from theappellanton 12 August 1987 is evidence secured by the Police through the 25 unconstitutional, at the time, detention of the appellant and, therefore, itcould not havebeen received in evidence and relied on by the trial Court in convicting the appellant; and, in this respect, we have noted with appreciation the fair attitude of counsel for the respondent whostated that ifthe detention of the 30 appellant, atthe time,wasunconstitutional, thiscase couldnot be distinguished from the Georghiades case, supra. •Likewise, the oral incriminating statements made to the Police on 18 August 1987 should not have been received in evidence and relied on against him, and, in any event, they constitute 35 evidence which should have been excluded as being consequential to the inadmissible written statement of the appellant on 12August 1987 (see, inter alia, in this respect, R v. Phaedonos, 22 C.L.R. 21, 26). 'Reported in
(1987)2 C.LR 132. 230 2 C.L.R. Merthodjav.Police Triantafyllides P. Since, therefore, the statements of the appellant, on which his conviction was based, did not constitute admissible evidence against him, it follows that his conviction, and the sentence imposed on him as a result of it, have to be set aside and this 5 appeal isallowed accordingly. Appeal allowed. 231