|1331st meeting, 4-6 December 2018 (DH)
Supervision of the execution of the European Court’s judgments
- recalling that these cases concern the use of potentially lethal force and ill-treatment by law enforcement agents as well as the lack of effective investigations capable of leading to adequate disciplinary and criminal sanctions;
As regards individual measures
- recalled with regret that as a result of the prescription rules in force the reopening of excessively lenient convictions or of ineffective criminal investigations (notably the recent Andersen case) is not possible;
- expressed also regret that in the Zontul case, due to the state of Greek law at the time, a reopening of the criminal conviction of the responsible coast guard for infringement of sexual dignity would not allow to take into account the European Court’s finding that the facts constituted torture within the meaning of Article 3 of the Convention, as the notion of torture in Greek law did not extend to the facts of the case; noted, however, with satisfaction the Ombudsman’s decision to reopen the disciplinary investigations into the consequences of the acts at issue;
- expressed regret that in all the cases – apart from Sidiropoulos and Papakostas and Andersen – the reopening of the disciplinary investigations was not possible due to the fact that the offences were subject to prescription;
- invited the authorities to inform the Committee by 1 September 2019 about the reopened disciplinary investigations concerning the Sidiropoulos and Papakostas and Andersen cases;
- noting also the particular complexity of the prescription question in the Zontul case, invited the authorities to provide the Committee by 1 September 2019 with the full conclusions of the Hellenic Coast Guard concerning the reopening of the disciplinary proceedings, notably as regards the continued employment of those responsible;
- 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;
As regards general measures
- called upon the authorities to intensify their ongoing efforts to eradicate all forms of ill-treatment by law enforcement officials, taking due account of the CPT’s recommendations, and invited them to provide the Committee with concrete and detailed information on the measures taken or envisaged in response to the European Court’s judgments in these cases;
- invited, as regards the effectiveness of investigations, the authorities to provide by 1 September 2019 detailed information on the following issues:
a) the suspension of the limitation period for offences related to violations similar to those in the present cases;
b) the overall possibility to reopen disciplinary investigations in cases where criminal or disciplinary liability has already been decided, taking into account the ne bis in idem principle enshrined in Law 4443/2016;
c) the effectiveness of the new complaint Mechanism (the Ombudsman), notably in the light of the outcome of the investigations into the complaints submitted since the Mechanism started to function on 9 June 2017;
d) the impact of the new reinforced legislative protection against racist crime and possible new measures envisaged to ensure the investigation of possible racist motives when ill-treatment occurs in the context of law enforcement;
e) the extent to which decisions to close criminal investigations on the basis of prescription can be subjected to judicial or other independent review;
f) the measures taken or envisaged in the context of the ongoing revision of the Criminal Code in order to fully align the conduct of criminal investigations into ill-treatment and the relevant sanctions with the requirements of the Court’s case-law, in particular as regards the definition of torture and the possibilities to convert terms of imprisonment imposed for torture and other ill-treatment into non-custodial sentences.
|1331st meeting, 4-6 December 2018 (DH)
Supervision of the execution of the European Court’s judgments
||Indicator for the classification
||BEKOS AND KOUTROPOULOS
||SIDIROPOULOS AND PAPAKOSTAS
These cases concern the use of potentially lethal force by the police in the absence of an adequate legislative and administrative framework governing the use of firearms (violation of positive obligation pursuant to Article 2 to protect life in the cases Makaratzis, Celniku, Karagiannopoulos and Leonidis); ill-treatment by police (violation of Article 3 in the cases of Bekos and Koutropoulos, Alsayed Allaham, Petropoulou-Tsakyri, Zelilof, Galotskin and Stefanou); ill-treatment by coastguards amounting to torture (violation of Article 3 in the case of Zontul); absence of effective administrative and criminal investigations and inadequate criminal proceedings and penalties (procedural violations of Article 2 in the cases of Makaratzis, Celniku, Karagiannopoulos and of Article 3 in the cases of Bekos-Koutropoulos, Petropoulou-Tsakiris, Zelilof, Galotskin, Zontul, Sidiropoulos and Papakostas and Andersen); failure to investigate whether racist motives on the part of the police may have played a role in some cases (violation of Article 14 combined with Article 3 in the cases of Bekos-Koutropoulos and Petropoulou-Tsakiris).
The Galotskin, Stefanou and Sidiropoulos and Papakostas cases also concern the excessive length of criminal proceedings (violation of Article 6 § 1); in the latter a violation of Article 13 in conjunction with Article 6 § 1 was also found.
Status of execution
As regards all cases apart from Sidiropoulos and Papakostas and Andersen
At the 1157th meeting (December 2012) (DH), the authorities indicated that it was not possible under domestic law to reopen criminal proceedings on the sole basis of the deficiencies identified by the Court in the cases of the group where the perpetrators had been convicted or acquitted. As regards the cases where criminal charges had not been brought, these would be re-examined. Following re-examination of those cases it was found that the offences had become time-barred. As for disciplinary proceedings, the authorities indicated at that time that their reopening following a judgment by the European Court could be requested by the executive committee of “the Office for addressing arbitrary incidents” (“the Office”), established by Law No. 3938/2011, in respect of judgments of the Court delivered after 31 March 2011 (that date on which this law entered into force). Also, the statutory limitation period for disciplinary offences would not run between the termination of the disciplinary proceedings and the delivery of the Court’s judgment to the Office. In a communication received on 8 July 2015, the Greek authorities informed the Committee that the reopening of the administrative investigation in Zontul in the light of the Court’s findings would be considered as soon as the committee established by Law 3938/2011 became operational.
On 27 September 2017, the Greek authorities informed the Committee that Law 4443/2016 (in force as from 6 December 2016) had replaced the Office with the national mechanism for the investigation of incidents of abuse by law enforcement agents and by employees of state penitentiary establishments (Mechanism for the Investigation of Arbitrary Behaviour – “the Mechanism”), which was integrated into the Ombudsman’s Office. Furthermore, the authorities informed the Committee that the Zontul judgment was transmitted to the Mechanism on 27 July 2017, and that on 11 August 2017 the Mechanism requested the reopening of the administrative investigation in this case in the light of the European Court’s findings.
At its 1302nd meeting (December 2017) (DH), the Committee invited the Greek authorities to provide information on further developments and on the outcome of the reopened procedure. It also requested information regarding the examination by the Mechanism of the possibility of reopening administrative proceedings in the other cases of the group concerning ill-treatment by law enforcement agents.
In their communication of 8 October 2018, the Greek authorities informed the Committee that as regards Zontul, the Mechanism initially decided that there was no question of violation of the ne bis in idem principle since the offences to be investigated in the reopened proceedings were different from those investigated initially, and requested the reopening of the disciplinary proceedings on the basis of the European Court’s findings. The authorities added that the disciplinary proceedings were reopened by the Hellenic Coast Guard and concluded by a report issued on 13 April 2018. Subsequently, the Mechanism issued its conclusions concurring with the Hellenic Coast Guard that, although the disciplinary offences investigated were different from those investigated initially, they had become time-barred because they had not been classified by domestic courts as criminal offences subject to longer statutory limitations.
According to the Mechanism, under Article 56 § 6 of Law 4443/2016 the suspension of the offences’ prescription between the termination of disciplinary proceedings and the delivery of the Court’s judgment to the Mechanism is possible only for those cases in which the prescription period had not expired by the date on which the Mechanism became operational (9 June 2017). As regards the other cases of the group, the Mechanism held that reopening of disciplinary proceedings was not possible because the offences had become prescribed long before the Mechanism became operational.
For all of these cases, the Mechanism proposed as the only possible individual measures a written apology from the heads of the services concerned to each of the victims of the impugned acts. In this way, moral satisfaction could be provided to these persons; at the same time there would be a commitment on the part of the relevant services that future disciplinary proceedings will be carried out in conformity with the Court’s case law. The Government Agent indicated that he agrees with this proposal and that he would pursue it before the services concerned.
As regards the cases of Sidiropoulos and Papakostas and Andersen
The above judgments became final on 24 April 2018 (Sidiropoulos and Papakostas) and on 26 July 2018 (Andersen). On 30 July 2018 the judgments were transmitted by the Government Agent to the Mechanism to examine the possibility of reopening administrative investigations, and on 20 August 2018 to the competent judicial authorities to examine the possibility of reopening criminal investigations. As regards Andersen, the First Instance Court Prosecutor of Thessaloniki examined the file and decided in September 2018 that the reopening of the case was not possible due to the fact that the offences were subject to prescription.
As regards administrative investigations of complaints against law enforcement agents
At its 1157th meeting (December 2012) (DH), the Committee of Ministers welcomed the repeal of Law No. 29/1943 on the use of firearms, which had been criticised by the European Court, noted that the new national legislation introduced a modern and comprehensive legislative framework for the use of firearms by the police and decided to close the supervision of the general measures taken by Greece to prevent similar violations of Article 2.
Furthermore, the Committee of Ministers welcomed the establishment by Law No. 3938/2011 of the three-member executive committee to head the aforementioned Office.
According to information provided by the authorities in September 2017, the Office did not become operational. Instead, as mentioned above, the Mechanism was established by Law No. 4443/2016, as part of the Ombudsman’s Office. The Mechanism is mandated to collect, record, assess and transmit to the competent bodies complaints about the actions of law enforcement agents and employees of detention establishments regarding: a) torture and other violations to human dignity within the meaning of Article 137A of the Criminal Code; b) illegal, intentional attacks against life, health, physical integrity, personal or sexual freedom; c) illegal use of firearms; or d) illegal behaviour for which there is evidence of racist motivation or discriminatory treatment on the grounds of colour, race, national or ethnic origin, descent, religion, disability, sexual orientation or gender identity. More specifically, the Ombudsman, acting as the Mechanism, evaluates all submitted complaints which fall within his specific competence and decides either to investigate them himself or to refer them to the competent disciplinary body.
If the Ombudsman decides to investigate the complaint himself, the competent disciplinary body is not prevented from continuing its investigation but is obliged to suspend its decision on the case pending receipt of the Ombudsman’s findings. If the Ombudsman decides to refer the case to the competent disciplinary body, the latter is obliged to investigate it as a priority, and inform the Ombudsman of the outcome. The Ombudsman evaluates the findings of the disciplinary proceedings and may send the case back to the disciplinary body for further investigation if specific shortcomings are identified. The Ombudsman’s findings are not legally binding, but the disciplinary body concerned is obliged to provide detailed reasoning in case of any divergence from them.
The Ombudsman is also empowered to request the reopening of an administrative investigation in cases where the European Court has found the initial investigation ineffective. When the Ombudsman decides to reopen the case, based on the findings of the European Court, he communicates this decision to the disciplinary body concerned.
During the investigation, the Ombudsman may request public services to provide any information, documents or other evidence related to the case under investigation, unless they have been classified as secret on grounds of national defence, state security or the country’s international relations. Furthermore, the Ombudsman may take statements from witnesses, conduct on-site investigations and order expert reports.
According to the authorities’ communication of 8 October 2018, the Ombudsman indicated in his annual report submitted to Parliament on 26 March 2018 that, since 6 June 2017, 117 complaints had been submitted to the Mechanism. 11 complaints were submitted by individuals and 112 by state services responsible for investigating disciplinary offences. The Mechanism found that four complaints were not within the scope of the Ombudsman’s competence, whilst the remaining complaints were followed up. In seven cases the investigations were concluded by the respective services and their reports were under examination by the Ombudsman. In two cases the Ombudsman held that the investigations were insufficient and referred them back to the competent services. In four cases investigations were being carried out by the Ombudsman himself.
As regards the offences investigated, 15 concerned torture, 15 the use of firearms, 14 concerned affronts to sexual dignity, 53 concerned attacks against life or physical integrity and, lastly, 11 concerned racially motivated offences. According to information provided by the police, between June 2017 and March 2018 223 complaints were transmitted to the Ombudsman. 31 of these were found not to be within the scope of the Ombudsman’s competence. Administrative inquiries were ordered in 136 cases. Of these, 71 were completed and the relevant conclusions transmitted to the Ombudsman. In 17 cases the police were ordered to carry out further investigations; in nine of them, further investigations were carried out and they were referred back to the Ombudsman. In order to enhance co-operation between the police and the Ombudsman, a circular was issued by the head of the Greek police in June 2017.
As regards other general measures aiming at combatting ill-treatment by law enforcement officers and racially motivated crimes
At its 1302nd meeting (December 2017) (DH), the Committee noted that a law-making committee had been established, tasked with examining whether the definition of torture in Greek law is compatible with the definition in Article 1 of the UN Convention against Torture. It also noted that the authorities had undertaken to examine the matter of conversion of custodial sentences imposed for torture with a view to ensuring that perpetrators of torture or other ill-treatment are proportionately and effectively punished. Lastly, the Committee invited the authorities to provide information about further relevant developments.
On 8 October 2018 the authorities informed the Committee that the above committee had concluded its work and submitted a draft criminal code to the Ministry of Justice which would be soon sent to Parliament for adoption. The authorities noted that the review of the definition of torture in the Criminal Code is beyond the necessary measures for the execution of the present judgments, because the Court did not indicate that the violations found were linked to the criminal law provisions criminalising torture or affront to life and bodily harm. According to the authorities, it was rather the lenient application by domestic courts of these provisions that led to procedural violations of Article 3.
The Greek Helsinki Monitor in its communication submitted in September 2018 mentioned notably that since June 2017 it had submitted to the Ombudsman 18 complaints of ill-treatment (including of migrants and Roma) by law enforcement agents, but had not received any information on the progress of these cases.
Lastly, it is noted that as of October 2018 five new cases concerning ill-treatment by law enforcement agents have been communicated to the Greek Government.
Analysis by the Secretariat
As regards individual measures
It is recalled that in relation to 10 cases of the group, criminal charges were brought against the law enforcement agents involved, who were either acquitted or sentenced. In relation to three cases (Zelilof, Petropoulou-Tsakiris and Andersen), where criminal proceedings had not been brought, the files were re-examined and it was found that the offences had become time-barred.
As regards the Zontul case, the reopening of the criminal investigations into torture (as the facts were characterised by the Court) instead of mere infringement of sexual dignity (as the events were characterised in the domestic proceedings) is claimed by the authorities to be objectively impossible since the perpetrator had already been convicted at the time of the Court’s judgment for the acts at issue. In the circumstances of the case, this objection – based on the principles of legal certainty and ne bis in idem – appears justified as no new facts or other evidence emerged in the procedure before the European Court. The violations were be solely related to the legal characterisation of these acts and to shortcomings in the investigation procedure.
In view of this situation, and of the importance of effectively preventing impunity in cases of torture, the possibility of disciplinary proceedings has been explored.
It is recalled that this has been considered, in the special circumstances of the present case, to be another avenue of redress to give a measure of effect to the Court’s findings. It is further recalled that the established case law provides that, when an agent of the State is accused of crimes that violate Article 3, criminal proceedings and sentencing must not be time-barred. It is also recalled that where state agents have been charged with offences involving ill‑treatment, they should be suspended from duty while being investigated or tried, and should be dismissed if convicted.
It is thus to be welcomed that the disciplinary investigations have continued. However, the conduct of these proceedings raises questions as to how the conclusions of the Court were taken into account both as regards the possibility of reopening the administrative investigations and the application of the relevant prescription rules when determining disciplinary liability.
As mentioned earlier the Mechanism (Ombudsman) requested the Hellenic Coast Guard to reopen the disciplinary proceedings, considering that there was no question of infringement of the ne bis in idem principle, since the new investigation would presumably focus on the offence of torture and not on the offences actually investigated in the context of the criminal proceedings. However, following the conclusion of the reopened investigation by the Hellenic Coast Guard, the Ombudsman concluded that the offences established were indeed time-barred because of the application of the general prescription period of five years that applies to the offence of infringement of sexual dignity. This change of position as to the scope of the disciplinary proceedings requires further explanation.
Even assuming that the disciplinary proceedings could only relate to the offence of infringement of sexual dignity, questions remain as to the application of prescription periods in the context of disciplinary action.
The Greek authorities have previously informed the Committee (see documents CM/Inf/DH(2012)40,
DH-DD(2015)757 and DH-DD(2018)971) that: a) for disciplinary offences the limitation period would not run during criminal proceedings; and b) according to Article 1 § 6 of Law No. 3938/2011, the limitation period for disciplinary offences giving rise to violations found by the Court would not run between the termination of disciplinary proceedings by the Hellenic Coast Guard (August 2001, § 16 Zontul) and the delivery of the Court’s judgment to the Office. However, the Office never became operational and was replaced only in 2017 by the Mechanism. The provision on the suspension of prescription remained unchanged. From the information provided, it appears that the Mechanism did not take into account the suspension of prescription in accordance with Article 1 § 6 of Law 3938/11. In view of the above, clarifications are necessary on how the statutory prescription periods for disciplinary offences were calculated and implemented by the Ombudsman.
It would be also useful to the Committee for the authorities to provide the full text of the conclusions issued by the Hellenic Coast Guard in Zontul. In this way, the Committee could acquire a detailed and comprehensive overview of these proceedings concerning torture.
As regards the Mechanism’s proposal that the heads of the services involved issue written apologies to the victims, it should be welcomed. The Committee might wish to encourage the authorities to consider it as a measure of moral compensation, and invite the authorities to provide more information on the effect given to this proposal.
As regards the problem of ill-treatment of persons in detention, it is noted that this issue has been the subject of several CPT reports. Its latest report on Greece (CPT/Inf (2017)25 §§ 62-66) states, inter alia, that as regards the treatment of criminal suspects detained by law enforcement officials, and despite overwhelming indications to the contrary, the authorities have to date consistently refused to consider that ill-treatment is a serious problem there, and have not taken the required action to implement the CPT’s recommendations and to combat this phenomenon effectively.
The CPT has notably underlined that in order to back up any message of zero tolerance and to reinforce training, effective investigations into allegations of ill-treatment must be undertaken to demonstrate that criminal acts by the police will be punished, and to counter the current culture of impunity that pervades parts of the police force.
In view of the above, and of the fact that as of October 2018 five new applications against Greece lodged between 2013 and 2016 involving, inter alia, alleged violations of Article 3 due to ill-treatment in law enforcement have been communicated to the government, the Committee might visit to invite the authorities to provide information on measures taken or envisaged to give effect to the conclusions of the Court in the present group of cases, taking into account the CPT’s recommendations.
Administrative investigations of complaints against law enforcement agents concerning violations of Articles 2 and 3 of the Convention
It is recalled that the supervision of the execution of the judgments of this group focuses on the implementation of measures taken to prevent ill-treatment by law enforcement officers and to guarantee proper and effective investigations into acts giving rise to a risk to life or of ill-treatment by law enforcement officers.
It appears that a key element in the execution of the Court’s judgments is the effective operation of the Ombudsman as the Mechanism. 15 of the complaints referred to by the authorities, submitted to the Ombudsman after the judgments in the present group, led to administrative investigations for torture, whilst 53 complaints concerned attacks against life or bodily harm. However, no information was provided about the scope and effectiveness of the investigations undertaken or about their outcome as regards disciplinary or criminal responsibility of the alleged perpetrators. The authorities should provide the Committee with more information in these and other relevant respects, to permit an evaluation of the effectiveness and independence of the investigations carried under the supervision of the Mechanism.
As regards reopening of administrative investigations
The special problems raised in the Zontul case require additional attention. Given that, according to the above law, reopening of disciplinary proceedings, to the extent they impose sanctions, should not infringe the ne bis in idem principle, and given the problems identified above in this respect, as well as regards the application of prescription periods, it would be useful for the Committee to receive information about the implementation of the legislation by the Ombudsman in the cases at issue in this group and possibly others so that conclusions can be drawn about how Law 4443/2016 might be applied in possible future cases. More specifically, information would be useful about: a) the suspension of statutory limitation periods for the offences that gave rise to the violations found by the Court; and b) in view of the ne bis in idem principle, the overall possibility to reopen disciplinary investigations in cases where criminal or disciplinary liability has already been decided upon.
Some of the present cases also concern the authorities’ failure to investigate whether racist motives on the part of the police may have played a role in the applicants’ ill-treatment. Given that the authorities have not provided updated information on the impact of measures taken or measures envisaged to prevent similar violations, the Committee might wish to call on the authorities to do so.
Adequacy of criminal proceedings and sanctioning by domestic courts
It is recalled that in a number of the present judgments the Court’s findings of procedural violations of Article 3 stemmed from inadequacies in criminal proceedings, concerning notably: inadequate access for the applicant as a civil party to the criminal proceedings (Zontul § 111); inadequate witness-related proceedings indicating a lack of effort by the competent authorities to discover what really happened (Alsayed Allaham § 28-29, Galotskin § 49, Zelilof § 62); and the handling (and closing) of the relevant complaints by the prosecutor (Andersen §65). In addition, procedural violations of Article 3 in some of these cases stemmed, inter alia, from the leniency and disproportionate sentences imposed by domestic courts on law enforcement agents, even in cases where (aggravated) torture occurred (Zontul §§ 106-108, Sidiropoulos and Papakostas §§ 90-96). In view of this, the Committee might wish to call on the authorities to provide information on measures taken or envisaged in order to redress these shortcomings and to fully align criminal law and practice with the Court’s case law.
Definition of torture in the Criminal Code
This issue was raised by the Court in Zontul (§§ 87-93), in which it noted that the court of appeal had not characterised the applicant’s rape by truncheon as torture because Article 137A § 2 of the Criminal Code provides that, in order for an act to be characterised as torture, the infliction of severe pain must be “planned”. The Court found that under its established case law a detainee’s rape by a state agent constitutes torture under the Convention.
The information provided concerning the review of the definition of torture in the Criminal Code in order to align it with Article 1 of the UN Convention against Torture is positive, as the requirements of this Article are the same as those under the Convention. However, no detailed information was provided about the outcome of this review, notably about when the authorities intend to propose the amendments to the Criminal Code needed to bring it into line with the requirements of the Convention. The Committee might wish to invite the authorities to provide more information on the progress of the present legislative work.
 The issues of excessively lengthy criminal proceedings and effective remedies were examined in the Michelioudakis / Diamantides No.2 group of cases, closed by Final Resolution CM/ResDH(2015)231.
 The term “Roma and Travellers” is used at the Council of Europe to encompass the wide diversity of the groups covered by the work of the Council of Europe in this field: on the one hand a) Roma, Sinti/Manush, Calé, Kaale, Romanichals, Boyash/Rudari; b) Balkan Egyptians (Egyptians and Ashkali); c) Eastern groups (Dom, Lom and Abdal); and, on the other hand, groups such as Travellers, Yenish, and the populations designated under the administrative term “Gens du voyage”, as well as persons who identify themselves as Gypsies. The present is an explanatory footnote, not a definition of Roma and/or Travellers.
 See, inter alia, Yeter v. Turkey, judgment of 13 January 2017 §70, Mocanu v. Romania, GC judgment. of 17 September 2014, §326.
 See, inter alia, Gäfgen v. Germany, GC judgment of 1 June 2010 §125.
 See also CPT report on Greece of 1 March 2016 (CPT/Inf (2016) 4 §24) stating that “ the current system is characterised by systemic failings by the police and judicial authorities to conduct prompt, thorough, independent and impartial investigations, aimed at bringing the perpetrators of ill-treatment to justice”.