The Constitution of the Republic of Cyprus, particularly Part 2, establishes and guarantees the fundamental rights and freedom of individuals. Among these, is the right to liberty and personal security, as stated in Article 11 of the Constitution (“Article 11“). Despite the fact that the right to freedom is a fundamental human right, it is not absolute and is subject to the limitations explicitly defined within Article 11 itself.
Among the cases where the Constitution allows the deprivation of one’s right to liberty and security are the following:
- The arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence;
- When it is reasonably considered necessary to prevent one from committing an offence; or
- When it is reasonably deemed necessary to prevent one’s escape after having committed an offence.
At the time of the person’s arrest, the police need to inform the suspect, in a language which the suspect understands, of the reasons why the arrest took place and his right to contact and use the services of a lawyer of his own choosing.
The Presentation of the suspect before the Court
Article 11 places an explicit obligation on the police to present the arrested person before a judge as soon as practicable, and no later than 24 hours after the arrest. If the police do not present the arrested suspect before the court within the above time limit, then that person is released.
The Judge will inquire the grounds of the arrest as soon as possible, in a language understandable by the person arrested and as soon as possible, and in any event not later than three days from the arrested person’s court appearance, the judge will exercise his discretion either to release the arrested person on such terms as he may deem fit or where further investigation is required regarding the commission of the offence for which the person has been arrested, the Judge may remand him in custody for a period not exceeding 8 days at any one time.
In addition to the statutory requirements, long-standing jurisprudence has established further conditions and factors the Judge must consider in order to determine if the detention of a suspect is reasonable and necessary. In order for a Judge to decide for the arrested person to be remanded in custody, all the following conditions need to be met:
(a) Evidence of a specific offence: There must be evidence that a specific criminal offence has been committed.
(b) Reasonable suspicion of connection: There must be evidence and testimony creating reasonable suspicion that the suspect is connected to the criminal offence.
(c) Utilisation of time by Police: The time between the arrest and the application for remand must have been used effectively by the Police to advance the investigation, demonstrating serious effort without obstruction.
(d) Necessity for further Police Investigations: The suspect’s detention must be necessary to facilitate ongoing police investigations, specifically to:
- Prevent witness tampering;
- Prevent retaliation against witnesses;
- Prevent the possible fleeing of the suspect.
Renewal of remand in custody
The Judge may renew the remand in custody of the suspect for as many times as necessary, as long as the investigations are still ongoing. The total duration of the remand in custody, starting from the date of arrest, is prohibited to exceed 3 months (Article 11.6 of the Constitution and Article 24 of Cap. 155).
When an application for a renewal of a remand in custody is made the Judge needs to be satisfied that:
(a) The time elapsed since the previous remand in custody order was properly utilised by the Authorities for the purposes for which it was ordered, and
(b) the renewal of the reservation is reasonably necessary.
The application for the renewal of the remand in custody must concern only the offence or offences for which the suspect was initially arrested.
If, at the end of the 3-month remand in custody, evidence remains insufficient for an indictment to be filed against the arrested person, then the arrested person must be released.
Appeal
Any decision of a Judge regarding the above shall be subject to appeal, as Article 11.6 of the Constitution clearly provides.
Every person who has been deprived of his liberty by arrest or detention has the right to appeal to the Court in order to challenge the lawfulness of his detention, and in case the detention is deemed illegal, to order his dismissal (Article 11.7 of the Constitution).
In the event that a person has been arrested or detained in violation of Article 11, then he has an actionable right against the State for compensation (Article 11.8 of the Constitution).
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Mikaelena Kokkinou, Associate, and Lal Sargun, Trainee Lawyer, at our Nicosia Office, Tel +357 22447777 or email Mikaelena.kokkinou@kyprianou.com or lal.sargun@kyprianou.com
