29/07/2019: Post-review submission on Greece’s compliance with the UN Convention against Torture

GREEK HELSINKI MONITOR (GHM)
Address: P.O. Box 60820, GR-15304 Glyka Nera
Tel.: (+30) 2103472259 Fax: (+30) 2106018760
e-mail: panayotedimitras@gmail.com website: https://greekhelsinki.wordpress.com



Post-review submission on Greece’s compliance with the UN Convention against Torture

 29 July 2019

  1. Sentences for torture and other violations of human dignity

In her replies, Greece claimed that the sentences for torture were reduced in the new Penal Code from 5-20 years to 5-15 years only because of the horizontal reduction of the maximum sentence (except for the life sentence) from 20 years to 15 years. This was intentionally misleading.

In the Penal Code valid through 30 June 2019, the sentence for crimes under article 137A.1 (i.e. torture) was “imprisonment” without any numeric specification. That meant 5-20 years. In the Penal Code valid since 1 July 2019, there is only one change in the whole text of Article 137A.1: the phrase on sentence is now “imprisonment up to ten years.” That means 5-10 years. Had there not been such change, i.e. had the sentence for torture remained “imprisonment,” it would have meant 5-15 years, as the upper limit of imprisonment is now 15 years (instead of 20 years before). The Committee should recommend to Greece that Article 137A.1 should be amended back to the previous version calling for imprisonment without upper limit (i.e. for 5-15 years).

The Committee is requested to take into consideration that the sentence for aggravated torture (eg with the use of falaga, electroshock, etc.) in the old Article 137B was “imprisonment for at least 10 years” (hence 10-20 years) and the text has remained unchanged in the new Article 137A.2 (hence 10-15 years).

The most troubling element that led the one and only police officer convicted at first instance and on appeal for torture not to spend even one day in prison is the possibility to apply mitigating circumstances (e.g. no serious crime before and/or good behavior after committing torture) for the dramatic reduction of his sentence. If one such circumstance exists, the respective sentences mentioned above are reduced from 5-10 years to 1-6 years and from 10-15 years to 2-8 years. If two such circumstances co-exist, the respective sentences mentioned above are further reduced from 5-10 years to 6 months – 6 years and from 10-15 years to 1-8 years. This is Article 85 in the new Penal Code that is more favorable to the convicted than the previous Article 85 that did not allow for the accumulation of two reductions when there were two mitigating circumstances. In the aforementioned case where the ECtHR eventually found a violation by Greece for the inadequate low sentence (Sidiropoulos and Papakostas against Greece – app. 33349/10) the police officer convicted for the use of electroshock on two (young) persons taken into police station for alleged traffic violations, i.e. convicted for aggravated torture with an in principle sentence of imprisonment for at least ten years, was finally sentenced to 5 years which he was allowed to buy off for 5 euros per imprisonment day to be paid off in 36 instalments. There is only one remedy that the Committee is urged to recommend: for sentences in cases of convictions under Article 137A, Article 82 on mitigating circumstances should not apply in view of the gravity of these crimes.

Obviously the Committee should also ask for the amendment of Article 137A.5 on the definition of torture to make it compatible with the Convention (and the ECtHR case-law) also with the inclusion of rape. GHM also agrees with the recommendation of the Ombudsman that the other violations of human dignity punished under Article 137A.3 with sentences 3-5 years (and hence a short prescription of 5 years) become felonies (i.e. punished with more than 5 years) which will also mean that there will be a 15 –year prescription.

  2. Cassation of judgments for the benefit of the law

Greece, rightly so, presented to the Committee as a positive development the Supreme Court’s cassation of a domestic acquittal of persons accused for trafficking in human beings. In our joint report to the Committee we “advise the Committee to consider the very positive development in the execution of another ECtHR judgment in Chowdury and others v. Greece. The Supreme Court Prosecutor issued a press release on the 30 October 201833 (translated in English by Greek Helsinki Monitor – GHM) explaining that after the ECtHR judgment, a Deputy Prosecutor filed an application for the cassation for the benefit of the law of the judgment of the Mixed Jury Court of Patras, No. 75-128/30-7-2014 which declared innocent the accused of trafficking in human beings, in violation of Article 4(2) of the European Convention, “for wrong interpretation and wrong application of the provision of Article 323A of the Penal Code, and for lack of specific and detailed reasoning”. On 18 June 2019, the Supreme Court Penal Plenary with its Judgment 2/2019 accepted the application and annulled that domestic judgment.” We then stated that Greece should apply consistently the procedure of an application for cassation for the benefit of the law by the Supreme Court Prosecutor as a fundamental remedy to execute ECtHR judgments and Treaty Body Views so as to remove domestic judgments held by the ECtHR or Treaty Bodies to be in violation of the ECHR or the Treaties. We add here that this was not a unique application of that procedure by the Supreme Court. In July 2017, for example, the Supreme Court issued judgment 2/2017 of cassation for the benefit of the law of a first instance court judgment that had acquitted a swindler (Artemis Sorras) confirming his claim that he had 600 billion dollars with which debt of thousands of people could be paid. In the certainly not exhaustive Supreme Court website, one can find additional judgments (5/20025, 10/2005, 1/2008, 9/2008 and 1/2009) leading to cassation for the benefit of the law of lower court judgments or indictment chamber decisions. The Committee is therefore asked to urge Greece to request from the Supreme Court the cassation of judgments or other judicial decisions that caused the impunity which in turn led to the finding of violations for torture or other violations of human dignity or violations for human trafficking by the ECtHR or the Human Rights Committee.

3. Compensation for victims vindicated by the Human Rights Committee

First, it is important to request that the Committee takes note that the Supreme Court ruled that the European Court of Human Rights judgments and by analogy the Human Rights Committee views constitute res judicata. However, in one case that the acts had not become time-barred at the time of the HRCttee views, the case was reopened and led to a trial but the local court rejected the res judicata, dismissed as irrelevant the views, and found the defendant mayor and deputy mayors of Patras innocent of the eviction of the Georgopoulos Roma family.

Secondly, in our joint report, we have provided information about the three cases that led to Human Rights Committee views in favor of Roma who had been ill-treated or forcefully evicted (Kalamiotis, Georgopoulos and Katsaris). Greece was asked to provide them inter alia with adequate compensation through a friendly settlement but Greece refused it. We were shocked to hear the Greek delegation claim before CAT that for such compensation, in addition to seeking it through administrative courts, there is a possibility for friendly settlements through the Legal Council of State that the representative of the authors of the communication had not pursued. This was a slander against Greek Helsinki Monitor that was the representative in all three cases (falsely) accused to have ignored a procedure favorable to the authors.

The Committee should bear with GHM that will present here relevant details and attach a related document. In the “Follow-up progress report on individual Communications, adopted by the Committee at its 112th session (7-31 October 2014)” (where Greece has been graded “C1” for (absence of) remedies and non-repetition in all three cases) it is mentioned that Greece for the cases of Kalamiotis stated that “The author could file an application for compensation with the relevant administrative tribunal, under article 105 of the Introductory Law of the Civil Code.” For the case of Katsaris Greece stated again that “An action for damages before the administrative courts, based on the Committee’s findings, would be the most appropriate remedy for the author in the circumstances.” For the case of Georgopoulos, Greece expressly denied the possibility of a friendly settlement through the Legal Council of State following a formal application by GHM on behalf of the authors, stating that “The means and processes of reparation must be determined under domestic law. In the present case, the Legal Council of the State determined that it lacked jurisdiction to award compensation for the actions of the Municipality of Patras.”

In fact, in the 22 October 2013 submission of Greece [Annex] the signatory as “Representative for the Greek Government” was indeed “Senior Advisor to the Legal Council of StateIoannis Bakopoulos who stated that “In all three cases the adequate compensation could be sought from the authors by addressing the competent administrative Tribunal through an action for compensation according to the provision of article 105 of the Introductory Law of the Civil Code.”

GHM had also stated specifically in its 6 January 2014 reply to Greece’s comments on the follow-up procedure that “the Authors suggest again that the Human Rights Committee urges the State party to follow the example of the compensation agreement between the State party and the author during the implementation of the Human Rights Committee’s Views in the case Bodrozic v. Serbia and Montenegro, Communication Nº 1180/2003 and seek compensation agreements with the authors in the three cases for which provision of compensation is still pending.”

Finally, on 23 April 2017, GHM wrote to then General Secretary for Human Rights Maria Yannakaki (letter with protocol number of her office 318/24-4-2017) asking her to mediate so that the Greek government pays adequate compensation to the Roma authors in these three cases. She never replied…

This is why GHM was appalled to hear during the Committee’s review Greece claiming that GHM had ignored the possibility of friendly settlements via the Legal Council of State when it had indeed expressly sought them only to be rejected by the Legal Council of State which referred GHM to the administrative courts.

Hence, the Committee is requested again to ask Greece to provide effective remedy including adequate compensation to Roma people victims of violence and discrimination, according to HRCttee Views on Katsaris, Kalamiotis and Georgopoulos and others cases though the friendly settlement procedure Greece has stated to be available.

4. Apologies to the vindicated victims of torture and other violations of human dignity

As we wrote in the joint report, the CoE Committee of Ministers last examined the Makaratzis group of cases in December 2018 and issued a decision in which it “welcomed the authorities’ intention to request the heads of the services involved in torture and other forms of ill-treatment to issue written apologies to the applicants; invited the authorities to inform the Committee by 1 September 2019 of any further development.” A month before that deadline, GHM that represents the large majority of the applicants can ascertain that no such apology has been received by any of them. In the report by the Greek Ombudsman as National Mechanism for the Investigation of Arbitrary Incidents published in June 2019 and submitted to your Committee by GHM it is stated that With regard to the old pending, and already statute-barred cases, the Mechanism is working to propose as a general measure of compliance to the Government that a written expression of apology be issued by the head of the administration of the competent department, that could work both as a moral compensation for the victim and as a practical commitment by the administration that there will be no repetition of similar irregularities in the disciplinary process in the future.”  We therefore urge the Committee to ask Greece to promptly issue written expressions of apology to those who have been vindicated by ECtHR judgments and HRCttee views.                

  1. On Aghia Varvara missing Albanian Roma street children

Greece claimed that they had returned to the Albanian government 18 of the 502 missing “Aghia Varvara” Albanian Roma street children. As the local-court-recognized civil claimant in the related criminal investigation, GHM would like to ascertain that such information is most likely false. First, because it was never included, let alone documented, in any report by Greece. Secondly because in the information on this case that the Albanian authorities have provided to two Albanian NGOs cooperating with GHM there is absolutely no reference to such action from the Greek authorities. This is why the Committee is requested to ask Greek authorities to promptly create an effective mechanism to investigate these cases in order to establish the whereabouts of the missing children, in cooperation with the Ombudsmen of both countries and relevant civil society organizations; and to acknowledge the failures that led to impunity and the disappearances of a very large number of at the time children and offer a public apology to the victims’ families.

6. Alleged judgments on trials on torture

Greece claimed in its oral presentation to the Committee that there have been five convictions in trials for torture. GHM suspects that they concern inter alia one conviction to eight years at first instance in 2015 for torture of a person with mental disabilities which is pending on appeal with the police officers convicted set free in the meantime. Also, they could concern convictions for (severe) bodily harm but not for torture even if, as in one very recent case, the youth bullied by those convicted eventually committed suicide. The Committee should ask Greece to provide and make public relevant documentation.

7. Restraints in psychiatric institutions

Greece claimed that restraints in psychiatric institutions are illegal; yet they are reported from time to time, even by CPT quoted in our joint report. As recently as on 22 July 2019, it was reported in Peloponnisos that in the notorious Child Care Center (KEPEP) of Lehaina institution a child’s legs were strapped to his wheelchair. The Committee should ask Greece to stop all uses of restraints under any circumstances.

8. Criminalization of solidarity with migrants and refugees

The Committee is requested to take into consideration, as relevant also for Greece, the 26 July 2019 joint appeal of 101 NGOs: “The EU must stop the criminalization of solidarity with migrants and refugees.” The most crucial paragraph in that statement reads: “Independent judges have found no sound evidence for convictions in most of these cases. This suggests that prosecutions are often being politically used to deter solidarity and create a hostile environment for migrants. Policing solidarity further involves suspicion, intimidation, harassment and disciplining against civil society, with long-term consequences for the rule of law, democratic accountability, social cohesion, freedom of association and fundamental rights in the EU. These misguided investigations fuel the negative image of migrants as criminals and perpetuate the perception of chaos at Europe’s borders.”

 

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