The Permanent Criminal Court of Famagusta rejected today, in the context of a trial within a trial for the gang rape of a 20-year-old woman in Ayia Napa, the DNA testimony of two of the five defendants.
According to the decision, the Criminal Court rejected the DNA testimony as having been obtained in violation of Article 15 of the Constitution and 8 of the ECHR since they were obtained after insufficient information of the accused.
In detail the decision:
When Lt. 3051 T.L., M.K.2 in the main trial, attempted as part of his main examination to testify before the Court the cheek swabs taken from Accused 4 and 5, the counsel of the latter objected to their testimony and requested as a trial within a trial. The objection consisted in the fact that the specific buccal smears were taken without first obtaining consent from Defendants 4 and 5 and that therefore there was a violation of the provisions of articles 2 and 3 of Law 138(1)/20011, article 25( 1)(a) of the Police Law, Law 73(1)2004 and article 15 of the Constitution (all of the above together or separately).
The learned counsel for the Accusing Authority agreed to hold a trial within a trial to resolve the above issue and the Court, with its relevant interim decision, ordered it to be held in order to establish the circumstances of receiving the cheek smears and to decide, of course, against how the above items will be accepted as evidence.
In the context of the trial within a trial, the Prosecuting Authority called a witness, namely the said Lt. 3051 Th.L.. The side of Accused 4 and 5 did not present any testimony.
The Testimony
Lt. 3051 Th.L. (hereinafter the witness), adopted the content of the testimony of 4.9.2023 [Document A(DD1)], where he states that on 4/9/2023 he received from all the Accused their cheek swabs for the rape case under investigation. As he further explained, the Accused were detained after a pre-trial detention order had been issued against them on the same day and subsequently they were all taken to the TAE offices in Paralimni, where they were asked to provide cheek swabs, fingerprints and photographs. When he asked, he told them they could refuse, but they responded positively and chose to give it to him, so he proceeded to receive the smears. The witness explained the procedure that was followed and indicated the signatures of Accused 4 and 5 on the envelopes where the samples were placed (which signatures also cover the adhesive tape with which the envelopes were sealed), and stated that Accused 4 and 5 did not bring some objection.
When cross-examined, he stated that before receiving the cheek smears of Accused 4 and 5, he addressed all the Accused, only once, in the English language, specifically mentioning the following: "I want to get samples of DNA, finger prints and photos, you can refuse to give samples of DNA, finger prints and photos". They answered him positively "Ok" and he proceeded to download. According to the witness, the Accused fully understood their rights and had their consent based on the Police Law, so he considers that he could proceed with the shooting. It was his position that, based on the law, written consent is not required.
With regard to the written consent for genetic material sampling that was shown to him, he initially stated that it concerns a person who was not arrested, while then when it was submitted that it was a person who was under arrest, he replied that he did not know. In any case, as he further stated, this particular form is a stereotypical form that they have for taking buccal swabs and that is usually used on persons who have not been arrested. He does not obtain written consent when someone is in custody.
It was also his position that Accused 4 and 5 had a very good understanding of the English language and he referred to the instructions he gave them in English while photographing them, to which they fully responded. This was also the reason why he did not need to bring a translator. As to the fact that there was a translator when taking their statements, it was because in that case they felt better giving the statement in their mother tongue.
In the final submissions made to him that Accused 4 and 5 were not explained their right to refuse, nor was it explained to them that possibly the testimony he received would be used as evidence against them, he replied that their rights were fully explained to them.
We emphasize that we have placed before us the entire testimony of the mentioned witness. Also, we have put before us what the learned advocates have mentioned with their purchases and we will dwell on them wherever it is deemed necessary.
Evaluation of testimony
Before proceeding with the evaluation of the testimony of the only witness who testified before us, we note that the trial within a trial is an independent process. It is judged on the basis of the testimony heard within it only, and there is no possibility of evaluating it, testimony that has been brought to the main trial in order for a Court to reach findings (see Police v. Isaia, otherwise Blakki (1997) 2 A. AD 177).
We further note that we will approach the testimony that has been brought to the trial within a trial in order to decide the issues in dispute, always keeping in mind that during the evaluation the general issue of credibility of the witnesses and in particular, of the Accused, must be kept open. This necessity imposes limitations on the interpretation of the testimony, but also on the formulation of findings (see Ioannides v. The Republic (1968) 2 A.A.D. 169 and Petri v. The Police (1968) 2 A.A.D. 40). Therefore, the evaluation of the testimony will be done in the light of the Jurisprudence and will be limited to what is absolutely necessary in order to adequately cover the needs of the disputed issues that were raised in the context of the trial within a trial and nothing else (see Stylianou v. Demokratias etc. a., Criminal Appeal No. 268/2015, dated 13.12.2018).
We have examined with particular care the testimony of the witness called by the Prosecuting Authority and it is our finding that with regard to the subject under discussion of taking the cheek swabs of Accused 4 and 5, he reported his actions clearly and positively. He remained absolutely firm in his positions as to what he reported to Accused 4 and 5 before receiving their buccal smears, as to the procedure followed during their reception and also as to what he did after the completion of receiving them. He did not fall into any contradiction on these issues. In relation now to the issue of his understanding with Accused 4 and 5 in the English language and the submissions of the defense that, on the one hand, no evidence was adduced about the languages spoken by the witness and on the other hand that Accused 4 and 5 do not understand the English language, hence the court proceedings are conducted with the help of a translator in the Arabic language, which is the mother tongue of the Accused, we note the following.
First of all, it must be said that during the hearing the knowledge of the English language by the witness has not been questioned through the cross-examination, while it was a finding of the Court that he addressed the Accused 4 and 5 in the English language with the vocabulary he mentioned.
Furthermore, we do not consider that the constitutionally guaranteed choice of Accused 4 and 5 to be interpreted in their native language during the judicial process, which is a time-consuming and undoubtedly more complex process, automatically excludes the possibility for them to agree or even understand the English language, to the very limited extent required for the purposes of the consent process. In this case, the witness with reference to all the communication he had with them
Accused 4 and 5 in the English language, he convincingly explained why he considered that for the limited purpose of taking the cheek swabs, Accused 4 and 5 were in a position to understand what he was saying to them.
Therefore, even at this stage, nothing appears to create any doubt that Accused 4 and 5, in the context of the process of receiving their cheek swabs, understood what they had been told by the witness and what they were asked to do, and that precisely with the their response indicated that they agreed to proceed with taking their buccal swabs. Besides, the witness took two samples from each of them, i.e. from the left and right cheek, after they apparently opened their mouths for this purpose, without Accused 4 and 5 ever having any resistance, while they were then asked to sign the folders where the samples were placed.
Therefore, on the basis of the above, we accept the facts regarding the circumstances under which Accused 4 and 5 received their buccal swabs as stated by the witness. In this regard, we find that on 4.9.2023 and while Accused 4 and 5 were in custody based on a pre-trial detention order issued by the Famagusta District Court, in relation to the offenses mentioned in Count 1 (DD1), the witness asked them to give, among other things, buccal smears. Specifically, he told them the following in English: "I want to get samples of DNA, finger prints and photos, you can refuse to give samples of DNA, finger prints and photos". Accused 4 and 5 then responded in the affirmative, saying "Ok" and proceeded to take them. The samples were placed in envelopes and Accused 4 and 5 put their signatures on the envelopes and on the adhesive tape with which the envelopes were sealed. The latter, at no point in the process mentioned, did not bring any resistance.
We clarify here, however, that the report of the witness how he could proceed to take the cheek smears of Accused 4 and 5, having their consent verbally, and that no written consent was needed, as well as that their rights were fully explained to the said Accused , constitutes his own opinion, which is not binding on the Court.
In relation to the specific issues, which we consider to be directly intertwined with the grounds of objection that the Court is asked to consider in the context of the present proceedings, it is for the Court to evaluate the testimony before it in relation to the disputed provisions and to pronounces his own judgment on them.
Conclusion
For all the reasons explained above, we consider that the Prosecuting Authority has failed to prove, beyond any reasonable doubt, that the taking of the cheek smears of Accused 4 and 5 was lawful and within the framework of the constitutional institutions.
Consequently, the objection is accepted and the filing of the disputed evidence is not allowed.