Inhuman and degrading treatment of Afghans by Greek police officers!
JUDGMENT
Sarwari and others v. Greece 11.04.2019 (no. 38089/12)
SUMMARY
Ten Afghan nationals denounced that they had been mistreated by police officers in search of an Afghan fugitive who had escaped from a courtroom. Nine of the applicants complained that they had been ill-treated in the building where they lived, while the tenth in the police station. The Court found that the court proceedings lasted for about seven years and that the preliminary criminal investigation included a period of inactivity of more than one year. At the same time, the possibility of racial motivation had not been thoroughly examined and the courts did not give due weight to certain factors, such as the fact that the police officers had acted in an informal setting, the applicants had not attempted to attack the police officers and were not involved in violent behavior, while one of the applicants was a minor during the relevant period. The ECtHR also considered that the treatment the four applicants sustained was inhuman and degrading treatment, as police officers had kicked and hit with sticks in various parts of their body, causing bodily injuries. On the other hand, the medical reports relating to the other five applicants did not identify the cause of their injuries and the ECtHR concluded that this was largely due to the lack of thorough and effective investigation by the national authorities. Infringement of the procedural and substantive aspect of Article 3 of the ECHR.
PRINCIPAL FACTS
The applicants are ten Afghan nationals who were born between 1975 and 1988.
In December 2004 R.A.N. (an Afghan national) escaped from a courtroom while under the
supervision of police officers H.D. and E.K.
Subsequently, H.D. and E.K. searched for the fugitive, both alone and with colleagues from the police
station, including in a building where some Afghan nationals were living. A few days later a television
station broadcast a report containing allegations that police officers had ill-treated a number of
Afghan nationals after violently forcing their way into the hotel where they were staying.
The facts, which occurred on 14 and 15 December 2004, were established as follows by the Athens
Criminal Court of Appeal. The two police officers – together with other police officers who could not
be identified and who were in civilian dress – went to a building where a number of Afghan nationals
were living, to search for the fugitive (R.A.N.). They woke up all the people staying there, led them
into the living room of the building and forced them to face the wall. They then showed them a
photograph of the fugitive, asking them if they knew him and if they had seen him in the area.
Finally, they punched them, kicked them and hit them with sticks. The next day they returned to the
building and repeated their actions. In addition, one of the applicants alleged that he had been illtreated at the police station on 15 December 2004.
On different dates the applicants underwent medical examinations and some of them were found to
have bodily injuries. Nine of the applicants lodged complaints and all the applicants also brought an
action for damages against the State.
An administrative investigation and disciplinary proceedings were carried out. In June 2006 the
disciplinary board imposed a six-month temporary suspension on H.D. and E.K. The penalties were
not enforced as H.D. was not in active service and E.K. had left the service.
Criminal proceedings were also commenced. In March 2012 the Court of Appeal sentenced H.D. to
20 months’ imprisonment and E.K. to 25 months’ imprisonment for unprovoked assault. Both
sentences were suspended.
THE DECISION OF THE COURT
Article 3 (prohibition of inhuman or degrading treatment)
Regarding the admissibility of the application, the Court declared it admissible with regard to nine
applicants and inadmissible with regard to one applicant who had applied to the Court out of time
and had not lodged a complaint with the domestic authorities.
As to the effectiveness of the investigations the Court found a violation of the procedural aspect of
Article 3 in respect of nine applicants, noting in particular the following.
The proceedings had lasted for seven years and for seven years and three months. In addition, the
preliminary stage of the criminal investigation, which had lasted for five years, included a period of inactivity of more than one year, which may have compromised the effectiveness of the investigation. The passing of time inevitably eroded the amount and quality of the evidence available, and the appearance of a lack of diligence cast doubt on the good faith of the investigative efforts.
The reports of the forensic doctors had lacked precision and their quality had fallen well short of the
CPT’s recommended standards and the Istanbul Protocol3 guidelines. In particular, they had not
contained an account of the incidents reported by the applicants or any indications as to when they
had occurred. They had merely stated that no injuries had been found, without indicating whether
the examination had been carried out with the assistance of an interpreter, as the applicants did not
speak Greek.
The possibility of a racist motive had not been thoroughly examined by the Assize Court or the Court
of Appeal. Moreover, H.D. and E.K. had not been questioned at any stage about their general
attitude towards the ethno-cultural group to which the victims belonged. Likewise, the investigative
bodies had not sought to ascertain, for example, whether the accused had been involved in violent
incidents with a racial connotation in the past or whether they had affinities, for instance, with
extremist or racist ideologies.
The courts had not lent due weight to certain factors, including the fact that the police officers had
been acting in the context of an informal operation; they had not had an arrest or search warrant;
there had been no causal link between the use of force by the police officers and the conduct of the
applicants (who had not attempted to attack the police officers and had not engaged in violent
behaviour); and one of the applicants had been a minor at the relevant time.
The domestic courts had acknowledged the existence of extenuating circumstances and had
imposed suspended sentences, with the result that the police officers had not served their
sentences. Lastly, the disciplinary sanctions (a six-month temporary suspension) had not been
enforced.
One of the applicants had not been involved in the proceedings to a sufficient degree, and the
applicant who alleged ill-treatment at the police station had not had the benefit of an effective
investigation.
As to the allegations of torture and ill-treatment (substantive aspect), the Court found no violation
of the substantive aspect of Article 3 in respect of five applicants and a violation of the substantive
aspect of Article 3 in respect of four applicants. It observed the following points in particular.
Firstly, the Court noted that the medical reports concerning five of the applicants were inconclusive
regarding the possible origin of their injuries, and that the evidence in the file did not provide
sufficient certainty, beyond reasonable doubt, as to what had caused them. This was largely due to
the absence of a thorough and effective investigation by the national authorities. There was
therefore insufficient evidence to conclude beyond reasonable doubt that these applicants had been
subjected to the alleged treatment.
Secondly, the Court noted that the Court of Appeal has clearly established that an assault had been
committed against four of the applicants. In particular, the Court of Appeal found that H.D. and E.K.
had kicked and punched the applicants concerned and had hit them with sticks on different parts of
their bodies, causing simple bodily harm. Furthermore, it had found the perpetrators guilty of
unprovoked assault of the applicants and had classified the acts as “bodily harm”. In the Court’s
view, the treatment to which these four applicants had been subjected constituted inhuman and
degrading treatment.
Just satisfaction (Article 41)
The Court held that Greece was to pay 26,000 euros (EUR) to one of the applicants, EUR 19,500 each
to four of the applicants and EUR 16,000 each to a further four applicants in respect of
non-pecuniary damage. It was also to pay the applicants EUR 1,500 jointly in respect of costs and
expenses(echrcaselaw.com editing).
