Mistreatment of detainees in Grevena’s prisons and lack of effective research

JUDGMENT

Konstantinopoulos and others v. Greece  22.11.2018 (no. 2) (no. 29543/15)

see here  

SUMMARY 

The case concerned inmates of Grevena Prison who had complained of ill-treatment inflicted on
them by members of a special police anti-terrorist unit during a surprise search of their cells in April
2013.

The Court found in particular that the injuries found on eleven of the applicants had occurred during
the April 2013 search and that they had attained the requisite threshold of severity to fall foul of
Article 3. The Court also ruled that the acts in question had constituted ill-treatment rather than
torture.

The Court noted failings on the part of the Greek authorities during the investigation into the
allegations of ill-treatment, considering that the latter had not been thorough, prompt or
independent

PROVISION 

Article 3

PRINCIPAL FACTS

The 22 applicants are Greek, Albanian and Bulgarian nationals who are detained in Grevena Prison
(Greece).

On 13 April 2013 a surprise search was carried out of cells in Grevena Prison on the basis of
information pointing to a possible prison break or mutiny. The search was conducted in the presence
of a public prosecutor by prison staff, assisted by police officers belonging to the “EKAM” (a special
anti-terrorist unit). After the search 28 prisoners were examined by the prison doctor, who noted
bruises and traces of dermatitis, but was unable to determine their cause.

A few days later, a number of prisoners  lodged a complaint with the public prosecutor’s office of
Grevena Criminal Court, alleging, in particular, Grevena Criminal Court, alleging, in particular, that the EKAM officers had made excessive use of Tasers against 31 prisoners, had struck them and verbally abused them and had forced them to crawl on their hands and knees to the prison sports hall, strip naked and stand facing the wall for
some time.

A preliminary investigation was conducted, reaching the conclusion that no disciplinary offence had
been committed. The police chief shelved the case. In November 2014 the public prosecutor with the criminal court decided that there was insufficient circumstantial evidence to bring criminal
proceedings.

THE DECISION OF THE COURT

Article 3 (prohibition of torture and inhuman or degrading treatment)

1. Ill-treatment inflicted on eleven applicants (substantive limb)

The Court noted that the EKAM police unit had not been suddenly called in to deal with any
spontaneous prison mutiny. Their intervention had been ordered and organised by the prison
authorities and the public prosecutor’s office. The applicants had therefore not been injured during
a random operation which might have given rise to unexpected developments triggering an
impromptu reaction from the police, but during an operation which had been planned and
sufficiently prepared for in terms of risk assessment. The Government attempted to justify the use of
force with arguments relating to general security in the prison. Drawing on the findings of the
prosecutor who had conducted the investigation, the Government submitted that the EKAM unit
had been warned by the prison authorities that most of the prisoners were armed with improvised
knives, that some prisoners had thrown objects at the EKAM officers, kicked over tables and
attempted to occupy the corridor running along the cells in order to take control of the area outside
the cells and confront the police. However, the Court noted that the same report pointed out that
the prisoners had gone into their cells and that the cell doors had been immediately closed.
Subsequently, the doors had been opened one by one and the EKAM officers had entered the cells in
order to prevent any attempt at resistance by the prisoners or attacks with the aforementioned
improvised weapons. The Court deduced that the whole EKAM team and the prison staff should
have searched just one cell and its three occupants. Even supposing the latter had refused to
comply, the Court considered that the security of the prison and the need to check on three
prisoners who might have thrown objects and kicked over tables had necessitated the use possibly
of truncheons, but certainly not of Tasers. However, the forensic doctor’s report had specified that
some of the applicants had injuries which could have been caused by Tasers. Furthermore, during
the administrative inquiry, one of the police officers questioned had stated that when the prisoners
had reacted aggressively by throwing objects and kicking over tables, the police officers had used
their Tasers.

The Court therefore considered that the injuries noted on eleven of the applicants (in the forensic
doctor’s report) had occurred during the search of 13 April 2013, and that they attained the requisite
threshold of severity to fall foul of Article 3. It also held that those applicants had sustained
ill-treatment and not been tortured. There had therefore been a violation of Article 3 in respect of
eleven applicants.

2. Lack of an effective investigation as regards eleven applicants (procedural limb)

The Court voiced doubts about the impartiality of the prison doctor, who had been a prisoner
himself and who, after examining the applicants at the end of the cell search, had claimed that he
was unable to determine the cause of the bruises and traces of dermatitis. The Court also noted that
the senior police officer and the public prosecutor had not intensified their investigation despite all
the contradictory statements emerging about the use of Tasers. It further observed that the
authorities had not acceded to the request submitted by the applicants’ representatives for a copy
of the audio and video recording of the prison on the day of the search. Moreover, the authorities
had failed in their obligation to conduct a thorough and prompt investigation: some twenty months
had elapsed between the time of the applicants’ complaint and the authorities’ decision to
discontinue the case. The Court also considered that there had been no independent inquiry into the
allegations of ill-treatment: the inquiry had been assigned to a prosecutor attached to Grevena
Criminal Court, even though the prosecutors of that court were also the prosecutors responsible for
supervising Grevena Prison, one of whom had, furthermore, been present during the cell search of
13 April 2013. As regards the action for damages provided for in Article 105 of the Civil Code, the
Court noted that that provision only applied to cases of damage caused by unlawful acts by State
bodies in the exercise of public authority. In the instant case, however, the administrative inquiry
had detected no unlawful act or omission on the part of the police. Therefore, an action based on
Article 105 would have had no real chance of succeeding. In that connection, the Court pointed out
that the obligation imposed by Article 3 on a State to conduct an investigation geared to identifying
and punishing persons responsible for ill-treatment would be illusory if, in the context of a complaint
lodged under that article, the applicant were required to exhaust a remedy which could only lead to
an award of damages.

The Court therefore noted shortcomings on the part of the Greek authorities in the investigation
conducted into the allegations of ill-treatment, and held that that investigation had not been
thorough, prompt or independent. There had therefore been a violation of the substantive limb of
Article 3 (investigation) in respect of eleven applicants.

Other applicants

As regards the allegations of ill-treatment submitted by the other ten applicants, who had presented
no evidence, prima facie or otherwise, of injuries allegedly sustained, or had not been examined by
the forensic doctor or had refused to undergo such examination, the Court considered that it had
not been established that they had been victims of ill-treatment, or at least of treatment attaining
the requisite threshold of severity to fall foul of Article 3.

As regards one other applicant (Nikolla Xhollo), the Court noted that he had not co-signed the
complaints lodged by the other applicants involved in the incidents of 13 April 2013. It therefore
declared the part of the application concerning him inadmissible on the grounds of incompatibility
ratione personae with the provisions of the Convention.

Article 41 (just satisfaction)

The Court held that Greece was to pay each of the eleven applicants, whose names were specified in
the judgment, 10,000 euros (EUR) in respect of non-pecuniary damage, and EUR 1,500, jointly, in
respect of costs and expenses(echrcaselaw.com editing). 


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