In Cyprus, immunity from challenge is a hangover from colonial times

Thanasis Nicolaou, a newly conscripted soldier in the Republic of Cyprus (RoC) national guard was found dead under Alassa Bridge near Limassol on September 29, 2005 in mysterious circumstances that owing to a botched investigation prevented an unlawful killing from being prosecuted.

Thanasis was given overnight leave on September 28 and was due back at his unit at 6.50am the next day. He left his Limassol home by car at 6.30am but failed to return to camp near Limassol.

His dead body was found 20 metres directly under the Alassa bridge – an odd trajectory if he jumped of his own volition – on the Limassol-Platres road at about 4.30pm the same day. His car was 150 metres from the bridge but his mobile, which could have revealed vital clues, was never found – a fact that often sets alarm bells ringing about possible foul play as a lot of useful evidence can be extracted from mobile phones.

There was an investigation about the cause of his death but, as the European Court of Human Rights (ECtHR) held in January 2020 in a case brought against RoC by his family, the investigation was fatally flawed because of a premature conclusion reached by the initial investigating team that Thanasis had taken his own life. 

The ECtHR held that such an early concluded view of suicide prevented a proper investigation by experienced police investigators with forensic experience at the crucial early stages of the investigation. The court held that the conclusion so soon after his body was found that Thanasis took his own life closed off vital forensic possibilities usually available around a dead body at the scene of a crime.

As this was deemed an open and shut case of suicide, the area around the body was not sealed-off to prevent contamination; it was not searched systematically and rigorously; items on and around the body and his car were not examined for traces of DNA and finger prints of anyone other than the deceased; and no one was or could have been interviewed as a suspect.

His family relied on the procedural aspect of the right to life, which requires states to have in place a criminal law and machinery to investigate, arrest and punish those who kill people. Obviously, it is not always possible to find killers, which is why the obligation is one of means rather than ends. However, a criminal investigation has to be effective and capable of bringing those against whom there is evidence of unlawful killing to trial.

So, after the ECtHR found a violation against RoC for failing to investigate Thanasis’ death properly, the RoC took a number of steps to comply with its obligations in accordance with the court’s ruling.

In 2020 it accepted an order for the exhumation of the deceased for X-rays to be obtained of the condition his bone structure and examined by experts. In 2021, the attorney-general appointed independent investigators and continued a criminal investigation by the police, ordering a fresh coroner’s inquest which was held in 2024. Two further independent investigators were appointed on the direction of the Council of Ministers following the finding by the coroner in 2024 that Thanasis was murdered by strangulation. 

In 2024 my old colleague Nicos Clerides was instructed by Thanasis’ family to bring some sort of closure for the family. Basing himself on the findings of both sets of independent investigators that there was a case to answer by the members of the original team of investigators for willful and deliberate dereliction of duty contrary to article 134 of the penal code, and other more serious charges against the original forensic pathologist, he found an imaginative way forward with a sting in its tail.

He requested the appointment of special prosecutors under the fiat of the attorney-general to bring prosecutions in the public interest against the original team of investigators along the lines recommended by both sets of special investigators. While it is true that the attorney-general does not have to follow the findings of investigators, these were no ordinary investigators. They were appointed by the attorney-general himself in 2021 and the Council of Ministers in 2024 to comply with three court rulings.

The attorney-general refused to grant his fiat on the ground that the necessary evidential threshold of a realistic prospect of conviction was not satisfied. He put it in more forceful terms: there is no scintilla of evidence that the original investigating team covered up any crime willfully and deliberately, he said in his letter to Nicos Clerides, although he must now accept that Thanasis was murdered – or does he? Is that the real problem here, because if the suicide theory still holds some sway in the attorney-general’s office, no one could be guilty of a cover-up as there would be no foul play to cover up.

In England the refusal by the attorney-general to grant his fiat cannot be judicially reviewed but in Australia it can be challenged in the courts in exceptional cases, likewise in most other countries of the EU.

The reason why the attorney-general’s discretion is not amenable to judicial review in England is because heis a government appointment answerable to parliament – not the courts.

In Cyprus law, it seems that the attorney general’s refusal to grant his fiat is also an exercise of prosecutorial power that cannot be reviewed by the courts even though, unlike in England, the attorney-general is an independent officer of the republic, albeit appointed by the president. 

His immunity from challenge is a hangover from colonial times whose raison d’etre in England does not apply in Cyprus where the attorney-general is not answerable to parliament and would otherwise be answerable to no one.

If there ever was an exceptional case to test the point whether the refusal of the attorney-general to grant his fiat can be challenged in the courts in exceptional circumstances, it is the tragic case of Thanasis Nicolaou that has all the hallmarks of a landmark precedent.

As a well-known appeal judge told me many years ago: Alper, get me the right facts and I will try and give you the law.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge