|MINISTERS’ DEPUTIES||Decisions||CM/Del/Dec(2019)1362/H46-10||5 December 2019|
|1362nd meeting, 3-5 December 2019 (DH)
H46-10 Sakir group v. Greece (Application No. 48475/09)
Supervision of the execution of the European Court’s judgments
- recalled that this group of cases concerns the authorities’ failure to carry out effective investigations into assaults against migrants, including into possible racist motives;
As regards individual measures
- recalling that according to the Court’s case-law the respondent State’s obligation to carry out effective investigations, including into possible racist motives of a violent act, is one of means, not of result;
- as regards the Sakir case, noted that, after the Court’s judgment, the investigation into the assault against the applicant was reopened; noted furthermore that as the applicant’s whereabouts could not be established and the authorities could not receive his testimony about the assault, the case was not pursued further by the authorities; invited the authorities to provide further information as to other investigative steps that may be taken, in particular the summoning and questioning of other witnesses, to fill the gaps in the investigation that were identified by the Court;
- as regards the Gjikondi case, noted that in compliance with the ne bis in idem principle, as enshrined in the Convention, Greek criminal law does not allow the reopening of a case following a defendant’s acquittal, save under very specific circumstances which are not present in this case; noted therefore that it is not possible to reopen the investigation and that no further individual measure appears to be feasible; decided to close the examination of this case and adopted Final Resolution CM/ResDH(2019)366;
As regards general measures
- welcomed the authorities’ determination and continuing efforts, reflected in the wide range of measures taken, to combat hate crime, in particular the specialisation of police and prosecutors and the methodological guidance provided by the Court of Cassation Prosecutor to the country’s prosecutors;
- in this regard, encouraged the Greek authorities to continue training prosecutors and judges on human rights protection and on the application of the legislation on hate-motivated offences, in order to ensure the sustainability of the progress achieved, possibly drawing on the Council of Europe’s expertise in this area;
- noted furthermore with interest the positive conclusions of the European Commission against Racism and Intolerance (ECRI) in 2018 regarding the implementation by the Greek authorities of its recommendation that the question of racist motivation in cases of violent incidents is made an integral part of investigations and judicial proceedings from the outset;
- having regard to the official statistics provided, invited the authorities to submit more detailed and updated statistical data concerning racist violence, including information on the results achieved in this area;
- decided to continue the supervision of the Sakir case under the standard procedure.
|MINISTERS’ DEPUTIES||Notes on the Agenda||CM/Notes/1362/H46-10||5 December 2019|
|1362nd meeting, 3-5 December 2019 (DH)
H46-10 Sakir group v. Greece (Application No. 48475/09)
Supervision of the execution of the European Court’s judgments
|Application||Case||Judgment of||Final on||Indicator for the classification|
|17249/10||GJIKONDI AND OTHERS||21/12/2017||21/03/2018|
This group of cases concerns the breach by the authorities of their obligation under the Convention to conduct an effective investigation into violent assaults on migrants which resulted in injury (Sakir) or death (Gjikondi and others). In particular, the Court found that the authorities failed to investigate possible racist motives for these assaults.
In Sakir, the Court found that the police had not sought to determine whether the medical condition of the applicant, following his assault by unidentified persons in Athens in 2009 and his hospitalisation, was compatible with detention pending deportation (substantive violation of Article 3). The Court also found that there was no effective remedy for the applicant to complain about conditions of detention (violation of Article 13). It also identified shortcomings in the conduct of the investigation into his assault, notably as regards the gathering and assessment by the authorities of relevant evidence. It further noted that although the assault had the characteristics of racial bias, the police and the judicial authorities treated the case as an isolated one, notwithstanding that international NGOs and national human rights bodies had warned of the phenomenon of racist violence, in particular in Athens, by extremist groups often linked to the political party “Golden Dawn” (procedural violation of Article 3).
In Gjikondi, the Court considered that the authorities failed to carry out an effective investigation into the fatal assault, perpetrated by an unidentified individual in 2004. In particular, it held that the authorities had not dealt with the case with the necessary diligence, had failed to involve the applicants to the extent required in the relevant investigation, and had not examined the issue of a possible racist motive for the assault (procedural violation of Article 2).
Status of execution
The issues concerning conditions of detention in police stations and the lack of an effective remedy (violations of Articles 3 and 13) were examined in the Siasios group of cases, which was closed by Final Resolution CM/ResDH(2018)224.
Information was provided on 15 June 2017 (Sakir, DH-DD(2017)702) and on 6 December 2018 (Gjikondi, DH-DD(2018)1230). A joint Action Report was submitted on 4 October 2019 (DH-DD(2019)1115), which can be summarised as follows:
In response to the Court’s judgment, on 28 November 2016 the applicant’s case was assigned anew to a Prosecutor of the Athens First Instance Court who immediately ordered the competent police director to initiate a fresh preliminary investigation into the assault on the applicant. In this context, the applicant was summoned as a witness. However, he was no longer to be found at his recorded address, and was no longer in contact with his appointed lawyers. As a result, the prosecutor shelved the case. The authorities indicated that in view of these circumstances, as well as the time that has elapsed since the facts of the case, the reopening of the proceedings does not seem possible.
The authorities noted that the Court found that investigation into the death of the applicants’ relative was ineffective for the following reasons: a) the pre-trial investigation was excessively lengthy, possibly compromising its effectiveness; b) the victim’s relatives were not involved in the investigation and the judicial proceedings; and c) the authorities did not investigate whether the defendant (I.L.) had had a racist motivation. The authorities noted that all these shortcomings concerned the acts alleged to have been perpetrated by I.L., who was acquitted by a final judgment. Under domestic law, a case can be re-opened following acquittal only in specific circumstances, in particular where it is established that the judgment was the result of falsified evidence or breach of duty by a judge. Since these conditions are not fulfilled in the Gjikondi case, and taking into account the fact that 14 years have elapsed since the fatal incident, the authorities consider that no individual measure is necessary.
In response to the European Court’s judgments the authorities have taken a number of measures to prevent similar violations (for more details see CM/Notes/1302/H46-12).
Article 21 of Law No. 4356/2015 modified the definition of hate crime under Article 81A of the Criminal Code, abolishing the prerequisite that the perpetrator felt hate for the victim because of his/her race, colour, religion, etc. The selection of the victim by the offender on the basis of his/her characteristics (race, colour, religion, descent, national or ethnic origin, sexual orientation, gender or disability) is sufficient to characterise the crime as a hate-motivated one.
Furthermore, Article 82A of the Criminal Code provides for enhanced penalties for hate crimes.
The authorities also indicated that victims of racist violence as well as witnesses of racist motivated incidents can be granted residence permits. Victims may also receive compensation under the relevant legislation.
Also Law No. 4478/2017 transposed Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.
Specialisation of police and prosecutors investigating hate crime
Two departments specialised in the fight against racist violence have been established within the Hellenic Police, one in the Athens and one in the Thessaloniki police directorates, with the aim of investigating racist crimes. Overall, 68 offices (5 in Athens and 63 at regional level) are tasked with the same mission. Police authorities also keep records of the number of cases reported that present characteristics of racist acts.
Special Public Prosecutors for racist violence have been appointed in Athens, Thessaloniki, Patras and Heraklion. A 24-hour hotline and an online platform have been set up for the reporting of potentially racist acts.
Policy-making and capacity-building to combat hate crime
Law No. 4356/2015 established the National Council against Racism and Intolerance, an advisory inter-ministerial body tasked with developing policies against racism and promoting initiatives aimed at protecting individuals and groups against hate crime.
A working group consisting of representatives of all relevant stake-holders in this field has been established within the Ministry of Justice for the purpose of collecting and consolidating data on racist incidents.
In December 2018 the Prosecutor of the Court of Cassation issued a circular addressed to all prosecutors reminding them of the obligations stemming from the Convention and the Greek Constitution and inviting them to investigate the motives of each violent act and to display appropriate severity when responding to racially motivated acts of violence.
The Ministry of Justice is cooperating closely with the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE) in combating racist violence. In this context, in June 2015 it organised a seminar in Athens on hate speech where the report of the European Committee against Racism and Intolerance (ECRI) on Greece was presented.
Between 2015 and 2018, 615 racially motivated incidents were reported to the police authorities (84 in 2015, 100 in 2016, 184 in 2017 and 247 in 2018). 174 cases were reported during the first semester of 2019.
Between 2015 and 2017, criminal charges were brought in 127 cases (32 in 2015, 40 in 2016 and 55 in 2017). Between 2015 and 2017, in 19 cases the perpetrators were convicted, while in four cases they were acquitted.
The authorities indicated that the above-mentioned data, collected by the police and prosecutors, are based on a 12-month plan and require careful analysis and processing. For this reason, the relevant data for 2018 are not yet available.
Furthermore, 216 criminal investigations into hate crime cases are currently pending before prosecutors at Regional Courts and four before Courts of Appeal.
The authorities referred to a judgment of the Athens Criminal Court of Appeal (No. 286/2019) concerning the racially motivated murder of a Pakistani national. The two offenders were found guilty and each of them was sentenced to 21 years and five months’ imprisonment. Both in this judgment as well as in judgment No. 19488/2017 of the Thessaloniki Criminal Court (defendants convicted of religiously motivated insult and given suspended prison sentences), the courts took into account the defendants’ racist motives as aggravating circumstances when passing sentence. In the former case the assassinated victim’s parents were informed about the proceedings and his father took part in the proceedings before the appeal court.
The authorities further referred to a judgment of the Athens Criminal Court (No. 1667/2018) convicting a person for racist remarks against migrants who lived in the same Athens area as the applicant in the Sakir case.
Rule 9 § 2 submission
On 21 October 2019, the Committee received a communication from the Greek Helsinki Monitor (GHM) where reference was made to the UN Committee on the elimination of racial discrimination ’s concluding observations on Greece (2016) where, although it welcomed “the information provided on the increased application of the anti-racist legislation”, it expressed concern about “the still low invocation and application of anti-racism legal provisions and the low rate of convictions in courts”. The GHM drew further the Committee’s attention to the fact that criminal charges were only brought in a few of these cases. GHM noted with concern that the prosecutors for racist crimes are not specialised and they serve in the relevant post only for a short period of time.
As representative of the applicants in the Gjikondi case, GHM indicated that the possibility of annulling a domestic court’s judgment “for the benefit of the law”, upon request of the Court of Cassation Prosecutor, should be explored. GHM further recommended that in cases where reopening is not possible on account of prescription, the authorities should consider issuing a written apology, as an avenue for providing full redress to victims.
Replying to the GHM submission, the authorities noted that the possibility for the Prosecutor of the Court of Cassation to ask for an appeal pro lege is provided as a special remedy to ensure that the law is correctly applied. It cannot lead to the re-examination of a case on its merits and therefore would not be of any concrete benefit to the applicant. It therefore cannot serve any purpose as an individual measure. The authorities indicated that, according to ECRI’s 2018 conclusions on the implementation of its recommendations, Greece has taken important positive steps towards combatting racism and intolerance. Furthermore, ECRI considered as implemented its priority recommendation regarding training for police, judges and prosecutors on the application of Article 81A of the Criminal Code on hate-motivated offences.
Analysis by the Secretariat
As noted above, although the case was reopened, it was subsequently shelved when the applicant could no longer be traced.
It is relevant to recall, however, that the European Court, in finding that the investigation in the present case was not carried out with the requisite diligence and effectiveness, was critical of the following aspects:
(a) the fact that there had been at least one eye-witness (A.K.), who was never summoned for questioning (§ 67);
(b) that the police ought to have questioned the first eye-witness (A.S.) – who retracted his initial statement identifying two known individuals as the main perpetrators of the attack – in conditions that could guarantee the reliability and veracity of any information he was able to give. The Court also noted that A.S. was not questioned at any point about the reasons for changing his testimony in the space of a few hours (§ 68);
(c) regarding the two individuals identified, the Court further noted that the judicial authorities took no steps, such as summoning them, in order to re-examine their role in the incident (§ 69).
It is recalled in this respect that, when it comes to fresh investigations following a judgment of the European Court finding shortcomings in the initial investigations, it is essential for the authorities, in particular the competent public prosecutors, to assess, in compliance with Convention standards:
– which investigatory steps can still be taken,
– which investigatory steps can no longer be taken for practical or legal reasons,
– which means can be deployed to overcome existing obstacles, and
– which concrete results are expected to be achieved and within which timeframe.
In view of the above, the Committee might wish to note the closing of the case by the prosecutor without attempting to fill the gaps in the investigation identified by the Court, and to invite the authorities to provide information on the outstanding issues listed above (a, b, c) concerning the reopening of the investigation into this case.
It is recalled that in this case the European Court noted that the length of the preliminary phase might well have jeopardised the effectiveness of the investigation, despite the diligence subsequently displayed by the Assize Court. In addition, it criticised the insufficient involvement of the applicants in the relevant investigation, as well as the authorities’ failure to examine the question of the existence of a racist motive. All these shortcomings are connected with the procedure followed, which led to the acquittal of the alleged perpetrator. However, Greek criminal law does not allow re-opening of a case following a defendant’s acquittal in compliance with the ne bis in idem principle, save under very specific circumstances which are not present in this case. The Committee may thus wish to note, in view of the above, that it is not possible to reopen the investigation and that no further individual measure appears to be feasible.
The wide-ranging measures that the authorities have taken to combat hate crime represent a very positive step. In particular, the specialisation of police and prosecutors and the methodological guidance provided to prosecutors by the Prosecutor of the Court of Cassation demonstrate the authorities’ determination to address and prevent hate crime. The Committee might therefore wish to welcome the continuing efforts and determination shown by the authorities. The Committee might further wish to encourage the authorities to continue training of prosecutors and judges on human rights protection and the application of the legislation on hate motivated offences, in order to ensure the sustainability of the progress achieved, possibly drawing on the Council of Europe’s expertise in this area.
However, the execution of the current group of cases requires coordinated action, targeted long-term efforts and firm commitment on the part of all competent authorities so that clear and tangible progress is achieved and proven by data. In this context, it is noted that in its 2019 Concluding Observations on Greece, UN Committee Against Torture, while acknowledging the legislative and other measures taken by Greece to tackle hate crime, noted that it was concerned “by reports it has received reflecting an increase in the incidence of racist and xenophobic violence, especially against refugees, migrants and members of the Roma community, and a significant rise in the number of incidents where law enforcement officials have been the perpetrators or have otherwise been involved. The Committee is also concerned at reports of widespread impunity for such crimes”.
The data provided by the authorities indicate a continuous rise in the number of reported incidents of racially motivated violence between 2015 and 2018. Compared to the total of 615 incidents, the data provided by the authorities reveal that the criminal charges (127 in total) and especially the convictions (19 in total) that took place in 2015-2017 are low. The two conviction judgments of 2017 and 2019 described above (status of execution) are significant. However, this does not allow an overall assessment of the progress made, since no similar, qualitative information has been provided on the other 17 convictions in the period 2015-2017, and no information has been provided on the years 2018-2019. A more in-depth, qualitative analysis is necessary, in order to assess the effectiveness of the measures adopted to date.
The Committee might therefore wish to invite the authorities to provide more detailed, updated statistical data, concerning racist violence, including information on the results achieved in this area.
|Financing assured: YES|
 Issued on 03/10/2016, §14.
 CRI(2018), issued on 03/09/2019, §46.
 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.