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- Ελληνικά
Following the review by the Police of the fatal road accident dated September 2, 2012, involving Andreas Loizou, 17 years old, formerly from Mouttayaka Limassol, the case file was forwarded to the Legal Service.
The object of study, having now taken into account all the testimonial material, including the testimony collected at the review stage, were two issues:
[A] Whether it is appropriate to prosecute the driver of the car with which the deceased's moped collided on the basis of Article 210 of the Criminal Code, which relates to causing death by reckless, careless or dangerous act.
(b) Whether investigators who participated in the investigation of the fatal accident are appropriate to be charged with the offence under Article 134 of the Penal Code (PC), which criminalises wilful neglect of duty by a public official.
Documented submissions on the above have shown that at the material time, the criteria for the decision to prosecute the driver of the car with which the deceased's moped collided were met, and always bearing in mind that the justification relates to the decision to prosecute, and not findings of guilt since there is a presumption of innocence, we explain as follows:
The driver of the car with which the decedent's moped collided, while having adequate visibility and realizing that an unknown car was entering his lane, failed to take any deterrent measures in a timely manner, e.g.e.g. applying brakes or driving earlier to the left in accordance with his course. Apparently, alcohol consumption also contributed to this, as it was shown on review of the case that at all material times the driver of the car was calculated to have been driving under the influence of alcohol in excess of the permissible limit, with the expected symptomatology.
According to the position expressed by the driver of the car in his statement, he expected to see the reaction of the driver of the other car first and only when he became aware that the unknown car was continuing on the same course did he make sharp manoeuvres, as a result of which he lost control of his car, entered the oncoming lane, hit the right-hand wall of the tunnel and subsequently collided with the moped in which the deceased and another passenger were riding. It is noted that according to testimony, the unidentified driver passed the two mopeds and returned to her own lane of traffic, and there was no collision between the two vehicles. The collision between the driver of the car and the moped occurred after the unidentified car entered the left lane of traffic.
In other words, there was testimony indicating the car driver's perception of danger. Objectively, a dangerous situation was created, which should have brought the driver of the car to immediate and/or timely alertness, rather than ignoring it while waiting for the unknown driver's reaction. The above failure of the driver to react in a timely manner and while there was time, made his driving dangerous (a component of Article 210 PC) in our view.
Considering, however, by way of illustration only:
[A](a) the lapse of a long period of time from the time the accident occurred, which is an inhibiting factor and touches on many other parameters, with the serious possibility of a Court decision for abuse of process, violation of the right to a fair trial as well as violation of the constitutional right to timely diagnosis of criminal liability within a reasonable time, see. Charalambidi v. Police (2004) 2 AAD330, Efstathiou v. Police (1990) 2 AAD 294;
the failure to secure any material new evidence which could not be secured at the time;
[C] the belief that was reasonably created in the driver of the vehicle in the many years since the accident that he would not face prosecution, as the then recommendation of the police and the decision of the Legal Department;
[D] the change in the personal and family circumstances of the driver of the vehicle in the intervening time,
we conclude that it is not appropriate to file a criminal case against the driver today. The above decision does not in any way affect the determination of civil rights, in any ongoing proceedings, for purposes of damages.
With respect to the investigation to locate the unidentified driver, it appears that not all appropriate actions were taken at the then material time. Unfortunately, even on reconsideration, and despite all the examinations conducted, no evidence leading to the identity of the unidentified driver emerged. This, however, does not affect the finding of any liability of the driver of the car, regardless of any liability of the unknown driver. The reference to an unknown driver is justified on the basis of existing evidence.
In relation to the acts or omissions of the investigators and other responsible police officers at the material time, the possibility of committing the offence of wilful neglect of official duty by a public official (Article 134 of the Civil Code) has been considered, which, in essence, establishes as a necessary element, inter alia, wilful neglect of duty. We note that from the testimonial material, with the exception of one case, which we will refer to and explain below, no deliberate neglect of official duty was established. Therefore, no criminal prosecution is warranted against those who participated in the investigation of the accident or forwarded the police file in the course of their duties. The difficulty of establishing the elements of the offence of wilful neglect of official duty (Article 134 PC) is well established and has been analysed through case law, applying the relevant principles to the facts of the case, cf. Archbold 2019, para. 17-44 and 17-45, with reference to the leading case R. V. SheppardandAnother (1981), in which the meaning of the word "wilfully" is given, BlackstonesCriminalPractice 2019 para. A2.13, in the judgment of the House of Lords Judicial CommitteeR. v. G. andanother (2004) 1 Cr. App. R-21.
However, in one case, inferences are drawn with respect to one of the investigators' knowledge of the necessity to take certain substantive actions and, at the same time, a conscious omission to take those actions is established. The consequence of the omissions influenced the judgment on the issue of potential liability for the accident and we consider that the elements of the offence under Article 134 PC may be established.
The present, is not a case where an investigator decides, albeit erroneously, exercising his judgment on facts, on an issue of liability. If the investigation of the case is flawed and is due to material omissions by an investigator who had knowledge that certain actions were to be taken, then the decision suffers in substance from neglect of official duty.
We are troubled by the leaked timing of any advancement of a criminal case for the offence under section 134 of the PC. We consider this decision to be different from the decision not to advance a criminal case against the driver of the car since, in the present case, we consider that professional and responsible investigators, who determine the course of investigations and know what actions must be taken, can be expected to perform their duty with a conscience and a high sense of responsibility. In the present case it is because of the alleged neglect in the performance of official duty that the whole case was led in the wrong direction.
We emphasize that all of the above will be the position of the Prosecution. The accused has a presumption of innocence, which is not rebuttable unless and until convicted by a court of competent jurisdiction.
We reiterate that any other failings of the police officers are of such a nature and degree that it is not justified, under the circumstances, to pursue a criminal case against them. It is understood that it is incumbent upon the appropriate authority to consider all testimonial material, reports and statements, including those of the review, for the purpose of evaluating the possibility of initiating proceedings for disciplinary investigation.
As for the liability of the driver, in a previous decision taken by the Legal Service, it was decided not to prosecute for the offence under Article 210 PC. We note that it is to be expected that in some cases, in the exercise of the discretion of Public Prosecutors/Prosecutors in deciding whether or not to prosecute, different views may be expressed. This is not wrong, provided that any decisions evaluate all relevant issues before them and arrive at a reasoned decision.
In the present case, the differentiation of the Legal Service's decision was based on an independent, thorough review and reassessment of all the relevant evidence, as noted above.
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