ORIGINAL PUBLISHED ON OMNIA BLOG (on 23 Mar 2017)
A number of reports by international human rights organisations, like CPT and Amnesty International, have recorded numerous cases of ill-treatment, including torture, suffered by migrants while under the control of Greek law enforcement officials. Despite the frequent reporting of such incidents there have not been any major cases brought before the European Court of Human Rights (‘Strasbourg Court’ or ‘the Court’) until recently. In 2003 the first application (Alsayed Allaham), concerning the ill-treatment of a Syrian migrant by police in Athens, was lodged. The 2007 judgment against Greece in Alsayed Allaham was followed by another judgment in 2012 in the Zontul case condemning Greece once more for failing to investigate the rape of a Turkish asylum-seeking detainee by a coast guard officer in Crete. Both cases demonstrated the need for structural changes in Greek law and practice in order to eradicate impunity and ill-treatment in the law enforcement sector.
In both cases the Court found violations of Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) highlighting faults in judicial and administrative proceedings. In Alsayed Allaham it was noted that the appeal court that acquitted the policeman for ill-treatment relied on testimonies of five eye-witnesses, three of whom were police officers, and gave no credit to medical reports that had verified the applicant’s injuries. In addition, no weight was given to the fact that the Head of the Greek police himself had sanctioned the two policemen involved in the applicant’s ill-treatment.
In Zontul the Strasbourg Court found that the administrative investigation and the subsequent criminal proceedings had been seriously flawed. Among the major shortcomings identified by the Court in the coast guard investigation was the failure to ensure the examination of the victim by a medical doctor despite the victim’s request and the improper recording of the victim’s statement as a ‘slap’ and ‘use of psychological violence’, instead of a rape. The sentence imposed on the officer, a suspended term of six months’ imprisonment for bodily injury and sexual dignity-related offences, was commuted to a fine of €4.40 per day of detention.
These two cases highlighted some key failings of the domestic criminal law system. First, the clemency of the criminal sanction imposed on the coast guard officer was manifestly disproportionate in relation to the gravity of the ill-treatment. It also did not demonstrate a deterrent effect nor did it provide an adequate remedy to the victim.
Second, Zontul shed light on a major flaw in Greek law and practice concerning the definition of torture in the criminal code (see more in author’s blog post). The Court stressed that, on the basis of its own and other international courts’ case law, such as the International Criminal Tribunal for the former Yugoslavia, rape with an object constitutes an act of torture and consequently a clear and substantive violation of Article 3 ECHR. However, according to Article 137A§2 of the Greek criminal code, in order for an act to be defined as torture it requires a ‘planned’ (μεθοδευμένη) infliction of severe physical, and other similar forms of pain on a person by a public official. This requirement, which does not exist in the definition of torture contained in Article 1 of the 1984 Convention against Torture, makes prosecution and sanctioning extremely difficult, if not impossible.
The culture of impunity of ill-treatment is compounded by the enactment in recent years of a number of laws (e.g. Laws 3904/2010, 4093/2012) that aim to decongest Greek prisons by converting custodial sentences into pecuniary penalties and community service. Regrettably these laws have been applied indiscriminately to cases of ill-treatment by the police. This practice raises serious issues of compatibility with international standards, including the Strasbourg Court’s case law (e.g. Gäfgen v. Germany), according to which penalties imposed in this context should be adequate and dissuasive.
Another fault noted by the Court concerns the prescription terms for serious offences, including torture, by state officials. Because these are subject to ordinary prescription provisions, even where the Strasbourg Court finds a violation of Article 3 ECHR for torture that occurred more than 15 years earlier (as in Zontul), the offender cannot be prosecuted and sanctioned. According to the Greek code of criminal procedure, reopening a case may occur only if this could ameliorate the defendant’s position. However, under the Strasbourg Court’s case law (e.g. Yeter v. Turkey,) when a state agent is accused of crimes that violate Article 3 ECHR, the prosecution must not be time-barred and the granting of an amnesty or pardon should not be permissible.
Unfortunately, the Court in its judgments in Alsayed Allaham and Zontul failed to highlight the potential racial bias by law enforcement officers in the ill-treatment of migrants. According to the CPT visit reports on Greece, since 1997 there has been a clear pattern of migrant ill-treatment among Greek law enforcement occasionally with flagrantly racist overtones. In addition, the yearly incidents of racist violence involving law enforcement officials, which were recorded from 2012 to 2015 by the national Racist Violence Recording Network (RVRN) ranged from 11 to 31 per year, pointing to the prevalence of racist incidents in Greek territory.
Yet, Alsayed Allaham and Zontul reveal the institutionalised ill-treatment against migrants by Greek law enforcement officials. As noted in the 2015 CPT visit report on Greece, in defiance of the overwhelming evidence to the contrary, the national authorities consistently refuse to consider the violence of the police as a serious, systematic problem. As a consequence, the authorities have not taken adequate measures to combat it and eliminate impunity for serious human rights violations.
Evidence of the ill-treatment of migrants can also be found in the Greek Ombudsman’s reports. In 2007, for example, the annual report referred to cases of serious ill-treatment of migrants by coast guard officers. In a special report on racist violence in Greece issued in 2013 the Ombudsman noted that in 2012 their office received 17 complaints (involving migrants and a national of migrant origin) concerning inappropriate attitudes of police officers which were probably racially biased. The Ombudsman’s 2015 annual report referred to two more cases concerning the ill-treatment of five migrants following their arrest by police officers in Athens.
Three things need to change. First, Greece needs to establish an effective administrative mechanism to eradicate impunity and to provide adequate redress to all victims of ill-treatment. The latest complaint mechanism established by Law 4443/2016 is certainly a positive step. Yet it falls short of fulfilling the condition of effectiveness given the national complaint mechanisms is chaired by the Ombudsman, who is only empowered to issue non-binding reports.
Secondly, there is a need for a holistic overhaul of criminal law and practice concerning torture and other forms of ill-treatment, as well as of the relevant sentencing policy. The definition of torture contained in the Greek criminal code is in breach of international and European standards. This is one of the major reasons for the long-standing state of impunity for serious human rights violations in the country. At the same time, the criminal law provisions on prescription, conversion of custodial sentences and reopening of cases after Strasbourg Court’s judgments need to be reviewed and amended to ensure victim’s full redress.
Last but not least, particular attention needs to be given by the authorities to migrants who are easily subject to abusive behaviour, including ill-treatment, by law enforcement officials and very often remain voiceless victims. To this end, the European Commission against Racism and Intolerance (ECRI) has usefully recommended that states place law enforcement agencies under a statutory obligation to promote equality and prevent racial discrimination, including racist violence, in carrying out their functions. Enshrining this obligation in law would oblige these agencies to design and implement specific programmes, such as systematic training and awareness-raising of all staff.
In view of the above, ill-treatment of migrants in Greek law enforcement cannot but be considered as a long-standing systemic problem that calls for sustained and determined action by the state. In a rule-of-law based democracy, law enforcement officers are and should act as professional upholders of the law and providers of services to the public. A precondition for achieving this is the development of policies and practices that oblige all state agents to respect human dignity, irrespective of one’s origin and status.
(This post was first published on the blog of Border Criminologies, Oxford University. It is based on the author’s paper ‘Migrant ill-treatment in Greek law enforcement – Are the Strasbourg Court judgments the tip of the iceberg?’, available at SSRN and in the SSRN Criminal Justice, Borders & Citizenship Research Papers Series).