Ill-Treatment of Migrants in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg?
Originally posted on the Blog of Border Criminologies, Oxford University.
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 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, the 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.
Sitaropoulos, Nikolaos, Migrant Ill -Treatment in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg? (2017). Available at SSRN: https://ssrn.com/abstract=2921109
The paper provides an analysis of the first major judgments of the Strasbourg Court which usefully shed light on the underlying, long-standing systemic failures of the Greek rule of law. The author argues that these judgments are in fact only the tip of the iceberg. For this the paper looks into the process of supervision of these judgments’ execution by Greece, which is pending before the Council of Europe Committee of Ministers, as well as into alarming reports issued notably by CPT as well as by the Greek Ombudsman. The paper also highlights the question of racial violence that has not been so far the subject of analysis in the Court’s judgments concerning ill-treatment in Greece. However, a number of reports, especially the annual reports of the Greek Racist Violence Recording Network since 2012, record numerous cases of racist violence by law enforcement officials targeting migrants and the ineffective responses by the administrative and judicial authorities. The paper’s concluding observations provide certain recommendations in order to enhance Greek law and practice and eradicate impunity.
The latest report on Greece by the Council of Europe anti-torture Committee (CPT), issued on 1 March, rang, once again, the alarm concerning decades-old, institutionalised, unlawful violence by law enforcement agents. In its press release CPT highlighted the need for Greece to fully acknowledge the phenomenon of police ill-treatment and to adopt a “comprehensive strategy and determined action” to address it.
The issue is compounded by the fact that this deeply ingrained violence is combined with institutionalised racism inside parts of the Greek law enforcement forces, thus targeting in particular migrants. In its 2015 report the Greek Racist Violence Recording Network noted that in 21 out of the 81 racist incidents that were recorded in 2014 the perpetrators were either only law enforcement officials or law enforcement officials along with other perpetrators. Out of these, 13 took place in public places, six in police stations or detention centres, and two in an abandoned private place.
These findings were corroborated by the 2016 CPT report where it is noted that infliction of ill-treatment by law enforcement agents, particularly against foreign nationals, including for the purpose of obtaining confessions, continues to be a frequent practice. The report contains some particularly worrying, graphic paragraphs and an appended photograph concerning the alleged use in 2015 by the police in Thessaloniki of wooden bats during the interrogation of a Bulgarian national who was detained on remand.
The CPT report is alarming because it clearly identifies a Greek police culture under which it is not unprofessional to resort to ill-treatment, although its prohibition is enshrined in the unqualified and non-derogable Article 3 of the European Convention on Human Rights (ECHR). As the Strasbourg Court has underlined on numerous occasions (see e.g. Galotskin v. Greece, 2010) Article 3 ECHR enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. In addition, the Court has noted that in respect of a person deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of Article 3 ECHR.
One of the major root causes for this highly problematic situation lies with the culture of impunity that pervades parts of the Greek, primarily, police forces, as well as of prosecutorial and judicial authorities. This requires a drastic overhaul of the law enforcement overseeing and redress mechanisms and of the awareness-raising and sensitisation of all actors of the national justice system.
As regards the law enforcement sector, CPT recommends the fostering of proper conduct by police members towards detainees, notably by doing more to encourage police officers to prevent colleagues from ill-treating, and to report, through appropriate channels, all cases of violence by colleagues. Importantly, CPT underlines the need for the authorities to adopt “whistle-blower” protective measures. However, in order for these highly useful recommendations to be given effect it is necessary to develop a reporting system linked to an independent complaint authority and a legal and institutional system able to fully and effectively safeguard the whistle-blowers’ personal security and other rights.
As regards the need to establish an independent and effective complaint mechanism, in his 2013 report on Greece, the Council of Europe Commissioner for Human Rights, drawing upon the Council of Europe Committee of Ministers Guidelines on eradicating impunity for serious human rights violations (2011), urged Greece to establish a fully independent and well-functioning complaints mechanism covering all law enforcement officials. This should be based on the five principles of effective complaints investigation: (a) independence: there should be no institutional or hierarchical connections between the investigators and the official complained against and there should be practical independence; (b) adequacy: the investigation should be capable of gathering evidence to determine whether the behaviour of the law enforcement body complained of was unlawful and to identify and punish those responsible; (c) promptness: the investigation should be conducted promptly and in an expeditious manner in order to maintain confidence in the rule of law; (d) public scrutiny: procedures and decision-making should be open and transparent in order to ensure accountability; and (e) victim involvement: the complainant should be involved in the complaints process in order to safeguard his or her legitimate interests.
What is however even more worrying and challenging is the fact that not only the administrative but also the judicial routes of investigation and prosecution in this context are fundamentally flawed. For example, CPT in its 2016 report refers to the cases of three migrant detainees whose allegations of torture and severe ill-treatment by police officers in 2013 were investigated by a public prosecutor. The prosecutor summarily dismissed the complaints and closed the file. The problem is that such bluntness has been encountered even at the highest judicial level, that of the Greek Court of Cassation (Areios Pagos). A characteristic example is the case of Kouidis v. Greece, where in 2006 the UN Human Rights Committee found the first violation by Greece of the International Covenant on Civil and Political Rights. This was the consequence of the fact that Areios Pagos, in a criminal case decided upon in 1998, did not take into account the applicant’s claims that his confession to the police was given under duress (serious ill-treatment including the use of falanga) during his interrogation in the Athens police headquarters.
The above shows that international and European human rights norms and standards have not as yet been fully embedded in the Greek national legal system. As noted by Adamantia Pollis in her incisive study on human rights in modern Greece (1987), albeit the judiciary in this country has been structurally independent it has rarely acted as a separate and autonomous branch of government. This has been a consequence of an ‘organic’ conception of the Greek nation which is embodied in the state, and its institutions, reinforcing its power. Pollis’ research in the 1980s demonstrated that Greek judges have remained committed to a legal philosophy that supports legal restrictions of rights in the name of higher state interests.
In order to overcome these structural shortcomings, the establishment of an effective system of administration of justice is needed, with courts empowered to apply domestic anti-torture law in line with the state’s human rights obligations and international or regional case law. Under the Strasbourg Court’s jurisprudence (see e.g. Gäfgen v. Germany, 2010) states have a positive procedural obligation, deriving from Article 3 ECHR, to conduct a thorough and effective investigation in all cases that raise an arguable claim of ill-treatment. This investigation should be capable of leading to the identification and punishment of those responsible. In view of this, in the course of the examination of all such cases the Strasbourg Court has imposed on itself the obligation to “apply a particularly thorough scrutiny”. In fact, this is the level of scrutiny that is required also from prosecutors and courts at domestic level.
In the 1975 ‘first torturers’ trial’ in Greece targeting officers of the Greek military police (ESA) involved in torture during the 1967-1974 dictatorship (cf. Amnesty International’s report), the court-martial prosecutor posed a fundamental question that is still echoing: “How could Greek officers sink to this moral degradation? Who are those responsible?” In a characteristically frank statement, probably prompted by the post-dictatorship atmosphere reigning then in Greece, the prosecutor added that “those morally responsible are not in this court. They are those who used the defendants…who, for many years, have given thousands of hours instruction on the fighting of communism without sparing even one hour to the defence of democracy”.
Regrettably these phrases are still of relevance today and call for reflection. Unlawful violence and impunity in the Greek system of law enforcement are decades-old long and derive from a long, sad tradition of state repression and disregard of human dignity and civil rights. As Pollis said in her 1987 study, despite the post-1974 legal and institutional changes in Greece, the underlying world view of the earlier decades persists. This is why the ‘culture’ of impunity still constitutes the mind frame of many state institutions and is tolerated. It is indeed high time for the national authorities to cross the Rubicon and redress this situation where human rights standards and the rule of law cannot but buckle.