In a multi-page decision, the Supreme Court overturned the first instance decision of the Famagusta District Court, pointing out the mistakes, weaknesses and omissions on the part of the Judge, M. Papathanassiou, the Police and the Prosecution Authority.
"I do not consider rape"
Perhaps the most peculiar feature of this case was the refusal of the judge who issued the first instance decision to consider the rape of the British woman.
According to the Supreme Court, it is a fact that the Court of First Instance had allowed a testimony in relation to the rape to be introduced, by the British woman herself who also testified in the main trial, relying on her allegations that she had been raped. He had previously heard the testimony of medical examiner Sophocles, according to which there was no rape or use of violence resulting from rape.
The forensic report of Dr. Sophocles was submitted as Evidence. On the other hand, in terms of defense, he heard the testimony of medical examiner Matsakis, who stated that the report of Dr. Sophocles had shortcomings and gaps, that the various injuries to the British woman were not observed correctly, indicating, among other things, that the absence of injuries did not means that a person has not been raped.
The complaint of the British woman is that the interventions of the Court of First Instance show that she wrongly considered that her allegation of rape had nothing to do with the present case, when in fact this was the central issue of the accusation she faced, thus hindering the effort. of defense.
Indeed, the Court of First Instance had repeatedly intervened, either by statements or by prohibiting questions, to indicate that "it does not try rape but public harm" and that "it would not decide anything about rape", "it would not decide whether or not rape took place". ».
In fact, relevant dialogues are listed:
"Court: A bundle of forensic reports will be Presumption 25. It is time for me to say something again, Ms. Pekri. Will you ask me in this case to find a rape or not? The components of the offense which I studied and re-studied, in particular. I guess you know them, study them. What are you trying to do now to figure it out? Do you want me to go through my decision to find rape or not? I do not deprive you of your right to examine. The door to be honest was opened by Mr. Demosthenes who brought Mr. Sophocles. But somewhere a dot has to go. I do not decide anything about rape. Clear things. I will see the testimony on her face for this point. I have a testimony, I have another testimony, I will not go in to find a rape or not. You should have seen this thing and not have me here to bother me, to decide whether or not there was rape. With all due respect, Ms. Pekri, we have said this thing from the beginning. I tell you, the witness came here, I left you to ask the questions, there must be a dot somewhere. I have his report, he said some things, look at him, I will not go into depth now, in this whole story, I will not try rape that makes me believe that I am trying rape and Mr. Sophocles is right. To know what we are judging.
Ms. Pekri: The only case in which the accused does not lie is that the rape may have taken place.
Court: If this is your topic, then you have ten minutes to complete your closing questions and the topic is over. Because I will not decide to rape. End.
Ms. Pekri: We are not calling on the court to rule on rape.
Court: With all these questions, with your line, Mr. Sophocles is right. That we are considering a rape case. It's 14:15. You have until 14:25 to finish with your final positions.
Ms. Pekri: With all due respect, Mr. President, we are trying to raise doubts that a proper investigation was not carried out.
Court: The ruling is there. You have 10 minutes. "
The Supreme Court states that "the frequent and strong references of the Court of First Instance that it did not try a rape case but a public injury case, is evidence that it did not have in mind that it was sufficient for the defense to raise reasonable doubts as to the component of the false and therefore that the defense's attempt was to demonstrate that rape was possible and not to turn the trial into a rape trial. The Court's petitions were so intense and intermittent that the appellant now claims that she was not given a fair trial, that she was treated unfairly, that she was treated with hostility and rudeness by the Court, and that the conviction was generally unfair and precarious. " .
Alalum with the hours of rape
The Court took as an important criterion for the negative evaluation of the British woman's testimony the erroneous perception that it was her position that the rape took place at 00:30.
The same perception, as we will also note below, had raised suspicions in Sergeant X, so that on the night of 27.7.2019 to 28.7.2019 the appellant was transformed from a complainant to a suspect and finally to an accused.
He explains that "even if the Court of First Instance found the appellant unreliable, the final question should be whether the testimony of the accusing authority, with the exception of the confession, is strong enough to lead to the conviction of the appellant".
The police took for granted that the rape took place at 00:30, as they considered that it resulted from the statements of the appellant. The appellant does not specify the time of the rape in her depositions.
Asked to indicate the point she was asked to clarify the time, Sergeant X replied:
"Okay, because it's not me who wrote it, I do not remember exactly what it says, but in the testimony for that night, the girl shows us her movements, tells us that she went down to Ayia Napa, they met at a place with her friends, one found the Israeli who was huddled with her.intabu told us, I do not remember exactly what he told us and that he went to enter a certain nightclub and there they told her that closed and will open at 02:00, the time 13:00, 13:00, what time was jia left jia went walker back to her hotel jia jiame met the Israeli and they went to the room and immediately attacked her and others came in and raped her. Based on this, she temporarily placed herself in the room before 02:00 and not 12:00 ".
The video footage
Finally, the Court took as an important criterion for the negative evaluation of the testimony of the British woman at 00:30, in relation to the time 02:56 that appears in the last video (DVD) sitting on an Israeli and having consensual sex. However, he did not take into account that at the same time (time 02:56) the others were not welcome.
Judging by the videos from different days, the Court considered that it was "a real testimony [that] speaks for itself" about what exactly had happened between the British and the Israelis, between July 13-17.
However, this testimony on the one hand concerns shots of previous dates and on the other hand the only shot of the critical date 17.7.2019 is described in the first video. Previous shots showing unbridled sexual freedom, which is undoubtedly unacceptable to many, could not lead to the finding, and in fact with the strength of the real testimony, that the British woman's allegation of rape or rape at the time was false. .
Statements of remorse
Initially, the Supreme Court examined whether the statements of practical remorse expressed by the British woman through her lawyer before the Court of First Instance, during the stage of her speech for mitigation of the sentence, abolish the right of appeal.
Specifically, her lawyer told her:
"The accused has regretted this act, I explain that the reason she did it is because she was under psychological pressure. According to Cypriot case law, the emotional charge or intensity with which the perpetrator is possessed at the time of the crime constitutes a mitigating factor. We call on your esteemed Court to pay special attention to the young man of the accused's age, as the way he handled the problem that arose with the Israelis is due to the young man of her age and the immaturity he has due to the young man of her age. "
However, the Supreme Court states that "in this case, the then defense attorney referred to the repentance of the British woman, attributing her act to psychological charge, to the young age and to immaturity. These statements cannot be interpreted in such a way as to constitute clear assumptions of facts that have been made unequivocally. "These are the usual, general, reports that are made to mitigate the sentence, without any specific admission of facts."
How her deposit was received
From the defense point of view, the British woman testified, claiming that the interrogation took place under stressful conditions, to which she referred, and that she was suffering from post-traumatic syndrome and was receiving medication. A psychologist also testified that he had diagnosed the appellant with severe symptoms of post-traumatic stress disorder. Finally, the testimony of a professor of linguistics and English, who is a forensic linguist, was presented, in order to show that, on the basis of his linguistic analysis, the statement in question was not written, in whole or in part, by the appellant in her own words, but was dictated by a person who had English as his second language.
The Court of First Instance accepted that the testimony was voluntary, rejecting the positions of the British woman and her witnesses.
According to the Supreme Court, the issue of the violation of the right to a lawyer is raised again with the first ground of appeal, which argues that the Court should have excluded the deposition of the appellant as received under the pressure of the investigating authorities, because, among other things, was deprived of the right to a lawyer, while she never relinquished her right.
The decision of the Supreme Court emphasizes that "it does not seem that the Court was put on alert in view of the special circumstances, that is, that a 19-year-old was summoned to the TAE offices in the afternoon for additional testimony, that six hours later she was questioned, after midnight, as suspect and that at 01:15 he allegedly made a voluntary testimony without the presence of a lawyer. In fact, while at 00:30, according to the position of the accusing authority, she had even refused to sign her rights and as Sergeant X characteristically stated "she took them that way, nor did she open them and throw them back to me" I do not sign anything "And he threw them at me", that is, he presents himself completely negative, even aggressive, in 40 minutes he is said to state "I make a big mistake, I will tell you the truth what happened" and then the receipt of the testimony / confession ».
Also, "the Court of First Instance focused on the defense testimony, leaving unanswered or without substantive examination the key points that, above, we noted as gaps and ambiguities coming from the side that had the burden of proof, should be considered. He assessed things with an absolute approach, without putting the testimony in the light of the special circumstances of the case and, especially, without taking into account the fact that the guarantees for the waiver of the right to a lawyer were not observed ".
He explains that "the issue is not formal or technical, but it is a matter of protection of fundamental human rights and should be considered in this light."