Ministers’ Deputies

Information documents

CM/Inf/DH(2012)40      27 November 2012[1]

 

Makaratzis and others group of cases against Greece

Assessment of the general measures presented by Greece

Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights

 

Eleven cases concerning, in particular, ill-treatment by police forces and the absence of effective investigations in this respect.

Application	Case	Judgment of	Final on
50385/99	Makaratzis	20/12/2004	Grand Chamber
25771/03	Alsayed Allaham	18/01/2007	23/05/2007
15250/02	Bekos and Koutropoulos	13/12/2005	13/03/2006
21449/04	Celniku	05/07/2007	05/10/2007
2945/07	Galotskin	14/01/2010	14/04/2010
27850/03	Karagiannopoulos	21/06/2007	21/09/2007
43326/05	Leonidis	08/01/2009	05/06/2009
44803/04	Petropoulou-Tsakiris	06/12/2007	06/03/2008
17060/03	Zelilof	24/05/2007	24/08/2008
2954/07	Stefanou	22/04/2010	04/10/2010
12294/07	Zontul	17/01/2012	17/04/2012

INTRODUCTION

1. This information document was drafted to assist the Ministers’ Deputies in their examination of the execution of the above judgments regarding mainly general measures. It is recalled that a memorandum was prepared by the Execution Department in 2009 in order to assist the Ministers’ Deputies in their examination of the execution of the above judgments regarding individual measures[2].

2. In respect of each violation, this memorandum contains a summary of the Court’s findings and of the measures presented by the authorities, followed by the assessment made by the Secretariat.

3. The assessment primarily focuses on the new Committee established at national level; it is expected that its functioning bears an impact both with respect to the required individual and general measures of all the cases in the Makaratzis group.

A) Response to the violation of Article 2 on account of the use of lethal force by police officers in the absence of an appropriate legislative and administrative framework relating to the use of firearms

I. Summary of the Court’s findings

4. In the cases of Makaratzis, Celniku, Karagiannopoulos and Leonidis the Court found a violation of Article 2 on account of a) the fact that at the material time the use of firearms was governed by legislation dating from 1943 (Law No. 29/1943), commonly acknowledged to have been obsolete and incomplete in a modern, democratic society; b) the lack of clear rules and guidelines relating to the use of lethal force and of firearms, which could be one of the grounds for rash initiatives of police force, which might not have happened if they had received adequate instructions and training.

II. Measures taken by Greece

5. The impugned legislation (Law No. 29/1943) is no longer in force. Law No. 3169/2003 introduced precise and strict rules for the use of firearms by police officers; the use of firearms is only authorised as a last resort when dealing with a situation in which there is imminent danger of death or serious injury; a system of quality checks for those carrying firearms, initial and follow-up training, as well as criminal sanctions for police officers violating their obligations are introduced (e.g. illegally holding a gun constitutes an aggravating circumstance for potential crimes of police officers; police officers illegally threatening someone with a gun or illegally performing intimidating shots will be sentenced to at least 3 months imprisonment). Presidential decrees Nos. 189/2005 and 113/2008 provide for enhanced education and training of policemen in firearms.

III. Assessment by the Secretariat

6. It is noted that the main source of violation namely Law No. 29/1943 that at the relevant time governed the use of weapons by agents of the State and that was according to the Court “obsolete and inadequate in a modern democratic society” and “did not afford to law-enforcement officials clear guidelines and criteria governing the use of force in peacetime” (§70 in Makaratzis) was abolished. It is recalled that, following the introduction of the abovementioned new legislation, the Committee of Ministers, at its 1072nd meeting (DH) (December 2009), noted that that the Greek authorities have introduced a modern comprehensive legislative framework regarding the use of firearms by policemen. Furthermore, since 2003 there are no similar cases communicated or pending before the Court. Therefore, the Committee of Ministers might wish to close its supervision of the general measures taken by Greece to prevent similar violations of Article 2.

B) Response to the violation of Article 3 on account of ill-treatment whilst under the responsibility of the police

I. Summary of the Court’s findings

7. It is recalled that in the cases of Bekos and Koutropoulos, Alsayed Allaham, Zelilof, Galotskin and Stefanou the Court found a substantive violation of Article 3. It held that the physical harm suffered by the applicants at the hands of police, as well as the feelings of fear, anguish and inferiority which the impugned treatment had produced, must have caused the applicants suffering of sufficient severity for the acts to be categorised as inhuman and degrading treatment within the meaning of Article 3.

II. Measures taken by Greece

8. According to the information provided by the Greek authorities a number of awareness-raising measures have been introduced: a) the new Disciplinary Code (presidential decree No. 120/2008) constituted considerable progress in providing safeguards aiming at combating ill-treatment by law-enforcement officials; it widens the scope of acts considered as disciplinary offences, imposes heavier sanctions in cases of torture and provides for the priority examination of complaints relating to disciplinary offences concerning civilians; b) circulars have been issued by the Head of the Greek Police to all police stations with detailed instructions on the protection of human rights in police operations; to that effect the Court’s case-law was disseminated;

c) the United Nations Centre for Human Rights' as well as the CPT’s handbooks were distributed; d) since 2005 human rights have become a part in the curriculum both in formation and in further training of police force; courses on the European Convention on Human Rights, the European Convention on the rights of Children, the Convention for the Prevention of Torture and other human rights treaties are regularly provided.

III. Assessment by the Secretariat

9. A number of important measures have been adopted. It is understood that these measures should be seen in conjunction with the functioning of the new Committee competent both for assessing the possibility of opening new administrative investigations in cases where shortcomings have been identified by the European Court and for the handling of (new) abuse complaints (see below under D) II.), whose deterrent and preventive effect could address concerns raised by different actors involved in this field[3].

C) Response to the violation of Article 3 on account of treatment by coastguards amounting to an act of torture, of the imposition of insufficient criminal sanction and of insufficient participation of the applicant in the relevant criminal proceedings

I. Summary of the Court’s findings

10. In the Zontul case the Court found a violation of Article 3 on account of the cruelty of and the element of intention in the treatment inflicted on the applicant, characterising it as an act of torture under the Convention. In addition, the Court found that the penalty imposed by the criminal courts on the perpetrators had been insufficient in view of the fact that a fundamental Convention right had been breached. It took the view that the Greek criminal justice system, as applied in the case under consideration, had not had the expected deterrent effect to prevent the ill-treatment suffered by the applicant, nor had it provided him with adequate redress (§ 109). Furthermore, the Court paid particular attention to the authorities’ failure to allow Mr Zontul to be involved as a civil party in the criminal proceedings instituted against the perpetrators.

II. Measures taken by Greece

11. The authorities have not provided specific information on the measures taken to address the issues raised by the Court.

III. Assessment by the Secretariat

12. Information is expected on the measures envisaged to remedy the violation found in this particular case.

D) Response to the violation of Articles 2 and 3 on account of the lack of an effective investigation

I. Summary of the Court’s findings

13. It is noted that in the cases of Makaratzis, Celniku and Karagiannopoulos the Court found a procedural violation of Article 2, while in the cases of Bekos-Koutropoulos, Petropoulou-Tsakiris, Zelilof, Galotskin and Zontul the Court found a procedural violation of Article 3 on account of the following shortcomings: discrepancies capable of undermining the investigation’s reliability and effectiveness; selective and inconsistent approach as regards the assessment of evidence by the investigating authority; “striking” omissions in the conduct of the investigation, non-examination of the applicant nor any of the other alleged victims/eye witnesses; omission by the investigating authorities/courts to take into account the report on the applicant’s forensic medical examination; inadequate steps taken to gather proof in the immediate aftermath of an incident and to preserve the scene, thus preventing the inquiry from gathering important evidence; lack of any expert report to identify the presence of pyrites on the hands of those involved in the incident and that no expert report had been requested on the uniform of the police officer in question; rejection of the applicant’s request to be examined by a doctor (after a rape incident), falsification of the applicant’s evidence, inaccurate summary of events.

II. Measures taken by Greece

14. According to the information provided, a new law (No. 3938/2011, executory presidential decree No. 78/2011) establishes an Office within the Ministry of the Citizen Protection for dealing with cases of abuse, regarding actions of the “commissionaire personnel” of the Security Forces, committed during the execution of their duties or in misusing their capacities. Within this Office a three-member Committee is created, composed of retired members of the judiciary and the Legal Council of the State, competent both for assessing the possibility of opening new administrative investigations in cases where shortcomings have been identified by the European Court and for the handling of (new) abuse complaints. In particular, the Committee handles cases for which a judgment has been rendered by the Court – see below under i) – and assesses every allegation or incident regarding security forces’ misconduct – see below under ii).

i. handles cases in which a judgment has been rendered by the European Court

15. This competence takes effect when the European Court finds a violation regarding shortcomings in disciplinary investigations or on account of new evidence not being assessed during the disciplinary investigation or at the hearing of the case (article 2 par. c). The explanatory report to the law explicitly refers to the questions posed by the Department for the Execution of Judgments regarding the possibility of carrying out new administrative investigations following a judgment of the European Court.

16. The relevant procedure is as follows: the Committee re-examines the case, taking into consideration, in particular, the European Court’s findings and either a) orders the re-opening of the case and forwards the case-file to the head of the competent authority, which is then obliged to conduct new investigations in line with the Court’s findings, or b) decides to discontinue the examination of the case (file into archive), in the event that it considers that the new investigation is not necessary. As a result of the fresh disciplinary proceedings, new sanctions can be imposed.

17. As regards statutory limitation of the relevant disciplinary offences, the notification of the Court’s judgment is considered as the starting point; the period that has elapsed until then is not taken into account.

ii. examines every allegation or incident regarding security forces’ misconduct.

18. In cases of serious allegations, the Committee, upon authorisation by the Minister of Citizen Protection, shall conduct investigations; the relevant findings are referred to the chief of the relevant body who is competent to exercise disciplinary control without conducting any further investigation. In all other cases, the Committee refers the case to the authority responsible for the conduct of disciplinary investigation under domestic law. In cases where a complaint is considered as ill-founded or inadmissible (“non-credible”’) the Committee will discontinue its examination.

III. Assessment by the Secretariat

i. on the Committee’s competence to handle cases in which a judgment has been rendered by the European Court

19. The establishment of this Committee is a very important step and the lifting of the statute of limitations is greatly welcome. With a view to the impact that the functioning of this Committee could have, both as regards individual and general measures stemming from the judgments under consideration, the following questions could be addressed by the authorities:

a) Will the Committee deal with all cases where a violation has been found by the Court ex officio or only upon the applicant’s request?

b) On what basis and according to which criteria may the Committee decide that no further investigation is required, even though the Court found a violation on account of shortcomings in the relevant disciplinary investigation?

c) Is the Committee competent to examine also cases of complaints against coastal guards (see Zontul case, par. 10 above)?

ii. on the Committee’s competence to examine every allegation or incident regarding security forces’ misconduct

20. The possibility of the Committee to examine allegations of police misconduct which have not been the subject of an application before the Court is an important further step to prevent similar violations. However, clarifications are needed on the following issues:

a) What are the criteria for deciding what constitutes a ‘serious case or event’’ that triggers the Committee’s direct competence?

b) Do the alleged victims have the possibility to challenge the outcome of the administrative procedure regarding their complaint?

iii. Concluding assessment on i and ii

21. Noting the findings of the European Court in the cases of this group concerning the lack of effective investigations, the Committee of Ministers might wish to stress the importance of an interpretation and an implementation of Law No 3938/2011 by the said Committee as well as the competent investigating authorities bearing in mind the Convention and the Court’s case-law. The authorities are invited to keep the Committee of Ministers updated on the establishment and effective functioning of the Committee, in particular also with regard to an expected deterrent and preventive effect as regards potential future violations of Article 3 by members of the police forces.

E) Response to the violation of Article 14 in conjunction with Article 3 on account of the authorities’ failure to investigate whether or not racist motives on the side of the police may have played a role

I. Summary of the Court’s findings

22. In the cases Bekos-Koutropoulos and Petropoulou-Tsakiris, the Court found a violation of Article 14 in conjunction with Article 3 on account of both the administrative and the judicial authorities’ failure to pay any specific regard to the aspect of possible racist motives for the incidents, although there was plausible evidence for such motives (see Bekos-Koutropoulos, § 74 and Petropoulou-Tsakiris, § 65).

II. Measures taken by Greece

23. Section 5 § 3 of the Policemen's Code of Conduct of 2004 provides that police officers shall avoid any kind of "prejudice" in their conduct; following the Bekos-Koutropoulos judgment, circulars were distributed to police officers reminding them of their obligation to examine possible racist motives during criminal, administrative or disciplinary investigations. In addition, the Ministry of Citizen Protection is establishing a single mechanism for the recording of cases of racial discrimination and creating a data base with the purpose of collecting direct information from international organisations and for monitoring the relevant cases.

III. Assessment by the Secretariat

24. Updated information is needed on the functioning of the new single mechanism and its impact on investigation of racial motives in similar cases, as well as on potential additional measures envisaged to this effect.

Summary of the PROPOSED assessment

The Committee of Ministers might wish to:

• welcome the abolishment of Law No. 29/1943 on the use of firearms that was criticised by the European Court, note that the new national legislation introduced a modern and comprehensive legislative framework for the use of firearms by the police and consider the possibility of closing its supervision of the general measures taken by Greece to prevent violations of Article 2 similar to those found by the Court in the Makaratzis group of cases;
• welcome the establishment by Law No. 3938/2011 of a three-member Committee competent both for assessing the possibility of opening new administrative investigations in cases where shortcomings have been identified by the European Court and for the handling of (new) abuse complaints;
• noting the findings of the European Court in this group of cases regarding the lack of effective investigations, stress the importance of interpretation and implementation of the law by the said Committee as well as by the competent investigating authorities bearing in mind the Convention’s and the Court’s case-law;
• invite the authorities to keep the Committee of Ministers updated on the establishment and effective functioning of the Committee, in particular also with regard to an expected deterrent and preventive effect as regards potential future violations of Article 3 by members of the police force.

The Committee may further wish to invite the Greek authorities to provide additional information on/responses to the following issues:

• Will the Committee set up by law No. 3938/2011 deal with all cases in which a violation has been found by the Court ex officio or only upon the applicant’s request?

• On what basis and according to which criteria may the Committee decide that no further investigation is required, even though the Court found a violation on account of shortcomings in the relevant disciplinary investigation?

• Is the Committee also competent to examine cases of complaints against coastal guards (see Zontul case)?

• What are the criteria for deciding what constitutes a ‘serious case or event’’ that triggers the Committees’ direct competence?
• Do the alleged victims have the possibility to challenge the outcome of the administrative procedure regarding their complaint?
• What are the measures envisaged to remedy the specific aspects of the violation of Article 3 found in the Zontul case (No. 12294/07);
• Bearing in mind the findings of the Court regarding the violation of Article 14 in conjunction with Article 3, updated information in expected on the functioning of the new single mechanism for recording cases of racial discrimination and its impact on investigation of racial motives in similar cases, as well as on possible additional measures envisaged.