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FIRST
SECTION
CASE OF PETROPOULOU-TSAKIRIS v. GREECE
(Application
no. 44803/04)
JUDGMENT
STRASBOURG
6
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Petropoulou-Tsakiris v. Greece,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides,
President,
Mr C.L. Rozakis,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44803/04) against the Hellenic
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Greek national, Ms
Fani-Yannula Petropoulou-Tsakiris (“the applicant”), on 2
December 2004.
- The
applicant was represented by the European Roma Rights Centre, and the
Greek Helsinki Monitor. The Greek Government (“the Government”)
were represented by their Agent's delegates, Mr S. Spyropoulos,
Adviser at the State Legal Council and Mr I. Bakopoulos,
Legal Assistant at the State Legal Council.
- The
applicant alleged that she had been subjected to acts of police
brutality and that the authorities had failed to carry out an
adequate investigation into the incident, in breach of Articles 3 and
13 of the Convention. She further alleged that the impugned events
had been motivated by racial prejudice, in breach of Article 14 of
the Convention.
- On
5 October 2006 the Court decided to communicate the complaints
concerning Articles 3, 13 and 14 to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is of Roma ethnic origin and lives in Nea Zoe, in
Aspropyrgos (western Attica), in a Roma settlement.
A. Outline of the events
- On
28 January 2002, between 11 a.m. and 1 p.m., the Police Directorate
of western Attica, on the initiative of Aspropyrgos police station,
conducted a large-scale police operation in the Roma settlement of
Nea Zoe. The operation was aimed at arresting persons who, according
to information obtained by the police, were involved in drug
trafficking. Thirty-two police officers and one judicial official
took part in this operation, in the course of which eleven Roma
dwellings were searched and four individuals arrested.
- The
applicant, who was two and a half months pregnant, was in the
settlement at the time of the operation.
1. The applicant's version
- The
applicant and other Roma women were rounded up by the police for a
body search. According to her statement, whilst the police operation
was taking place the applicant waited her turn to be searched by the
police who were searching other residents of the settlement. She
noticed that certain police officers were taunting a disabled Roma
who was a relative of hers.
- As
she moved to approach the police officers, she was forcefully pushed
back by one of them while another one kicked her in the back, in
spite of the fact that she had shouted that she was pregnant. As a
result of the kick, the applicant felt an intense pain in the
abdominal area and started bleeding. Although the bleeding was
obvious to all the police officers present, the applicant was not
taken to hospital. Not having any personal documents – as she
was at the time an unregistered stateless person – and being
alone, she felt she could not go to the hospital on her own for fear
of being refused treatment.
- The
next day she informed members of the Greek Helsinki Monitor that she
had been kicked by a police officer and that she was bleeding. One of
them then rushed her to Elena Venizelou Maternity Clinic, where she
was admitted immediately. She underwent a number of medical tests.
- On
1 February 2002 the applicant suffered a miscarriage and was
kept under medical supervision until 5 February 2002, when she was
discharged from the hospital.
2. The Government's version
- According
to the version of events given by the Government, the police officers
who participated in the police operation of 28 January 2002 did not
use force against civilians. Neither the four persons arrested nor
any other individual who was in the settlement during the operation
had been assaulted or subjected to racial abuse. The presence of a
judicial officer guaranteed the police officers' proper conduct.
B. Medical report
- According
to the medical report drawn up at the end of the examination, “the
applicant was admitted to the hospital on 29 January 2002, 10
weeks pregnant, with haemorrhaging from her uterus (risk of
spontaneous abortion). On 2 February 2002 there was a complete
expulsion of the foetus and on 4 February 2002 her uterus was
cleaned”.
C. Criminal proceedings
- On
1 February 2002 counsel for the applicant lodged a criminal complaint
with the Athens public prosecutor against the police officer who had
allegedly used violence against the applicant and whose identity was
unknown to her. In the complaint the applicant joined the proceedings
as a civil party seeking damages, asked to be examined by a forensic
doctor and named three persons who could testify as witnesses. She
also included the address and telephone numbers of her lawyers.
- On
10 February 2002 the Athens public prosecutor sent a letter to the
commander of Aspropyrgos police station requesting that a preliminary
inquiry (προανάκριση)
be launched into the allegations contained in the applicant's
criminal complaint so as to identify the unknown perpetrators, who
would be charged with inflicting serious bodily harm under
Articles 308 § 1 (a) - 309 of the Greek Criminal Code.
- On
11 March 2002 two witnesses named by the applicant submitted a
written testimony to the police officer in charge of the preliminary
inquiry. On the same date the applicant submitted a written
memorandum to the police requesting that the police officers from
Aspropyrgos police station be excluded from conducting the
preliminary inquiry since officers from that station had participated
in the operation in question and it was most likely that one of them
had ill-treated her.
- By
a letter dated 12 March 2002 the commander of Aspropyrgos police
station informed the Athens public prosecutor of the applicant's
request and asked him to make a decision and issue the relevant order
as to whether he should continue to conduct the preliminary inquiry.
It cannot be ascertained from the case file whether the public
prosecutor replied. However, Aspropyrgos police station continued
with the preliminary inquiry.
- On
1 May 2002 two police officers, the head of the security division of
Aspropyrgos police station and the head of the anti-crime unit of
Elefsina police station respectively, testified before the police
officer conducting the preliminary inquiry. Both officers stated that
they did not have any knowledge of ill-treatment inflicted upon the
applicant.
- On
28 November 2002 the investigation file was forwarded to the Athens
public prosecutor. In the covering letter the Aspropyrgos police
station commander repeated the applicant's request that the police
officers serving at his police station be prevented from conducting
the preliminary inquiry.
- On
10 September 2003 the Athens public prosecutor requested the Elefsina
magistrate (πταισματοδίκης),
the competent judicial authority, to summon the applicant and any
other witnesses she wished to call.
- On
16 January 2004 a court bailiff visited the settlement where the
applicant lived in order to summon her and another woman to testify
before the Elefsina magistrate on 26 January 2004. The court bailiff
stated that she was unable to find either the applicant or the other
witness and that she had been informed by police officers from
Aspropyrgos police station that the two women had moved to “an
unknown address”.
- On
26 January 2004 the Elefsina magistrate returned the case file to the
Athens public prosecutor.
- On
3 July 2004 the Athens public prosecutor closed the file with the
indication “Perpetrator unknown”. The authorities did not
inform the applicant or her legal representatives that the file had
been closed. On 28 July 2004, when making an enquiry at the
Athens public prosecutor's office, the Greek Helsinki Monitor was
informed that the case had been closed.
- On
1 September 2004 the Greek Helsinki Monitor sent a letter to the
Aspropyrgos police station commander, enclosing a copy of the
bailiff's statement and enquiring as to how the police officers could
have been aware of the applicant's change of address.
- In
his reply dated 6 September 2004 the Aspropyrgos police station
commander commented on the court bailiff's reference to Aspropyrgos
police station's having informed her that the applicant had moved to
“an unknown address”. According to the station commander,
the reference was general and vague and thus could not be confirmed
and the records of the police station did not contain any relevant
information.
D. Administrative investigation into the incident
- In
the meantime, on 5 March 2002, responding to the publicity that had
been generated, the Chief of the Greek Police launched an informal
investigation in order to clarify whether the police operation of 28
January 2002 had involved unlawful or excessive use of force by
members of the police. The investigation was conducted under the
direct supervision of the Deputy Director of Police, A.V., who had
been actively involved in the police operation of 28 January 2002.
As he stated in his report: “[T]he general supervision and
coordination of the police actions had been orally assigned by the
commander of the Police Directorate of western Attica to the
undersigned, who prepared the action plan and personally supervised
the police officers' action on the operational level.”
- Police
officer A.V. proceeded to question five senior police officers who
had participated in the operation in question. According to their
statements, they had not witnessed any of their colleagues
ill-treating the Roma residents.
- On
6 March 2002 the police went to the applicant's settlement in order
to serve her with a summons for interview, but did not find her.
- On
7 March 2002 the report on the findings of the informal investigation
was issued. According to the report, the presence of a judicial
officer during the police operation guaranteed that, in the event of
incidents of police brutality, the public prosecutor would be
informed. Furthermore, according to officer A.V.'s findings: “the
complaints are exaggerated ... It is in fact a common tactic employed
by the athinganoi (Greek word for Roma) to resort to the
extreme slandering of police officers with the obvious purpose of
weakening any form of police control.” The report concluded
that, given that a criminal investigation had already been initiated,
it was advisable to suspend the disciplinary proceedings until either
a criminal court had ruled on the case or the alleged perpetrator had
been identified. In accordance with this recommendation, the
disciplinary proceedings were suspended.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Greek Ombudsman issued a report on 12 October 2004 entitled
“Disciplinary/administrative investigations into allegations
against police officers”. It stated as follows in relation to
investigations into complaints raising serious issues, such as
excessive use of force and/or police brutality:
“4. Failure to conduct Sworn
Administrative Inquiry (Ενορκη
Διοικητική
Εξέταση,
– SAI)
The fact that informal investigations are more
frequently conducted - informal investigations represent some 66% of
the investigations carried out in total - raises the important
question whether the methods of investigation used by the Greek
Police are adapted to the offences complained of. In a number of
cases where an informal investigation was carried out, although the
nature of the offence complained of required an SAI, the Ombudsman
observed that although there were elements that would have justified
disciplinary proceedings against police officers, the Greek Police
refused to carry out an SAI. ... Such complaints [concerning
allegations of ill-treatment or police brutality] could not be easily
rejected on the basis of an informal investigation, given that they
are often substantiated with forensic examinations or other medical
certificates. ... In the following examples, an SAI was not carried
out although the nature of the offences required it: (a) use of
physical force: e.g. ... striking and subsequent miscarriage of a
pregnant woman of Roma origin ... The Greek Ombudsman observed that
the Greek Police omit, on a regular basis, to institute disciplinary
proceedings even in cases where the existence of strong objective
evidence, such as witness statements, photographs, forensic reports,
medical certificates etc., cannot be denied. Such evidence cannot be
summarily overruled but needs to be examined thoroughly through the
formal procedure of an SAI. Cases with strong evidence requiring an
SAI that was never conducted: (a) forensic or medical reports: e.g.
... a pregnant woman of Roma origin suffered a miscarriage after
being struck ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 3 of the Convention that she had
been subjected to acts of police brutality which had caused her great
physical and mental suffering amounting to torture, inhuman and/or
degrading treatment or punishment. She also complained under the same
provision, taken together with Article 13 of the Convention, that the
Greek investigating and prosecuting authorities had failed to carry
out an effective and impartial official investigation into the
incident which could have led to the identification and punishment of
the police officers responsible. The applicant therefore claimed that
she had been denied an effective domestic remedy for her sufferings.
Article 3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government requested the Court to declare the case inadmissible as
the applicant had failed to exhaust domestic remedies. In particular,
they submitted that the fact that the Athens public prosecutor had
closed the file with the indication “Perpetrator unknown”
did not mean that the outcome of the case was definitively decided.
According to domestic law, when the perpetrator of an alleged offence
was not identified, the preliminary inquiry remained pending until
new evidence was brought before the authorities. Thus, when the
applicant was informed that the case had been closed, she should have
appeared before the public prosecutor in order to testify and request
the reopening of the case. By failing to do so, she had not assisted
the authorities in their investigations and had not exhausted an
effective remedy.
- The
applicant disagreed with the Government's objection. She argued that
she had sought a criminal prosecution by lodging a complaint, but
that avenue had proved ineffective. She submitted that the
investigation had not been effective, and in particular that the
investigating authorities had failed to take timely steps to collect
evidence and identify the perpetrators. She further noted that the
prosecutor had closed the file two years and five months after the
incident. In the light of the ineffectiveness of the criminal
investigation there had been no point in the applicant's waiting any
longer before lodging an application before the Court, as in fact any
delay would have entailed a serious risk of having her application
before the Court rejected on the grounds that it failed to comply
with the time-limit of six months.
- The Court finds that the question of exhaustion of
domestic remedies is closely linked to the merits of the applicant's
complaint under Articles 3 and 13 of the Convention. Therefore, to
avoid prejudging the latter, both questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits of the
complaint.
- The Court further notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant submitted that her miscarriage had been the result of the
unnecessary and disproportionate use of force by the police officers
involved in the police operation of 28 January 2002. She also
complained of the failure of the investigating and prosecuting
authorities to carry out a prompt, comprehensive and effective
official investigation capable of leading to the identification and
punishment of the police officer responsible.
- The
Government pointed out that since the miscarriage suffered by the
applicant had not occurred while she was in police custody, the
police authorities could not be held responsible for it. According to
the Government, the presence of a judicial officer during the police
operation guaranteed that no incident of police brutality could have
occurred. Furthermore, the Government argued that the applicant had
failed to produce a medical report stating that there were signs of
physical violence on her body that could have provoked the
miscarriage, such as bruises. The Government also referred to the
lack of a medical examination by a forensic doctor and the
applicant's failure to assist the investigating authorities. As
regards the effectiveness of the investigation, the Government
emphasised that the applicant had not appeared to testify before the
competent judicial authority and that she was solely responsible for
the fact that the Athens public prosecutor had closed the file.
2. The Court's assessment
a. Concerning the alleged ill-treatment
i. General principles
- As the Court has stated on many occasions, Article 3
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.
Unlike most of the substantive clauses of the Convention and of
Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions
and no derogation from it is permissible under Article 15 § 2
even in the event of a public emergency threatening the life of the
nation (see Selmouni v. France
[GC], no. 25803/94, § 95, ECHR 1999 V, and the Assenov
and Others v. Bulgaria judgment of 28 October 1998,
Reports of Judgments and Decisions
1998-VIII, p. 3288, § 93). The Convention prohibits in
absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the victim's conduct (see the
Chahal v. the United
Kingdom judgment of 15 November 1996, Reports
1996-V, p. 1855, § 79).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. Where the events in
issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
ii. Application of those principles to the
present case
- The
Court reiterates that it is not disputed that the applicant was
present in the Roma settlement during the police operation and that
she was admitted to hospital the following day with bleeding from her
uterus. However, the circumstances under which the bleeding occurred
are not entirely clear and the Court notes that there are some
elements in this case which cast doubt on whether the applicant
suffered treatment prohibited by Article 3.
- Firstly,
the medical report produced by the applicant only states that she was
bleeding and that she suffered a miscarriage, without mentioning the
existence of bruises or other injuries and without reference to
reasons that may have caused the bleeding. Furthermore, the Court
notes that the applicant has not produced any other cogent evidence
in support of her allegations of ill-treatment, such as objective
eye-witness testimonies.
- In
conclusion, since the evidence before it does not enable the Court to
find beyond all reasonable doubt that the miscarriage suffered by the
applicant was the result of the alleged ill-treatment inflicted by
police officers, the Court considers that there is insufficient
evidence for it to conclude that there has been a violation of
Article 3 on account of the alleged torture.
b. Concerning the alleged inadequacy of
the investigation
i. General principles
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by the police in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention, requires by
implication that there should be an effective official investigation.
As with an investigation under Article 2, such investigation
should be capable of leading to the identification and punishment of
those responsible. Otherwise, the general legal prohibition of
torture and inhuman and degrading treatment and punishment would,
despite its fundamental importance, be ineffective in practice and it
would be possible in some cases for agents of the State to abuse the
rights of those within their control with virtual impunity (see
Assenov and Others v. Bulgaria, cited
above, p. 3290, § 102, and Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV).
- The
investigation must be effective as well in the sense that it is
capable of leading to a determination of whether the force used by
the police was or was not justified in the circumstances (see Kaya
v. Turkey, judgment of 19 February 1998, Reports
1998-I, § 87, and Corsacov v. Moldova, no. 18944/02,
§ 69, 4 April 2006).
- The
investigation into arguable allegations of ill-treatment must also be
thorough. This means that the authorities must make serious attempts
to find out what happened and should not rely on hasty or ill-founded
conclusions to close their investigation or as the basis of their
decisions (see Assenov and Others, cited above, p. 3290,
§§ 103 et seq.). They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see Tanrıkulu v. Turkey [GC],
no. 23763/94, ECHR 1999-IV, §§ 104 et seq., and
Gül v. Turkey, no. 22676/93, § 89,
14 December 2000).
- The procedural limb of Article 3 is invoked, in
particular, where the Court is unable to reach any conclusions as to
whether there has been treatment prohibited by Article 3 of the
Convention, deriving, at least in part, from the failure of the
authorities to react effectively to such complaints at the relevant
time (see Khashiyev and Akayeva v. Russia, nos. 57942/00
and 57945/00, § 178, 24 February 2005).
ii. Application of those principles to the
present case
- The
Court considers at the outset that the medical evidence and the
applicant's complaints, which were both submitted to the competent
domestic authorities, created at least a reasonable suspicion that
her miscarriage might have been caused by excessive use of force. As
such, her complaints constituted an arguable claim in respect of
which the Greek authorities were under an obligation to conduct an
effective investigation.
- As
regards the present case, the Court observes that two separate sets
of proceedings were conducted: criminal proceedings against the
unknown perpetrators on the applicant's initiative and an
administrative informal investigation following the publicity given
to the incident. However, the Court is not persuaded that those
proceedings were sufficiently thorough and effective to meet the
above requirements of Article 3.
- In
particular, concerning the criminal proceedings, the Court notes some
discrepancies capable of undermining their reliability and
effectiveness. Firstly, the Court notes that contrary to its
established case-law, the preliminary inquiry launched into the
applicant's allegations was conducted by police officers serving in
the same police station as the ones who had participated in the
police operation in question, even though the applicant had requested
that they be excluded (see, mutatis mutandis, Oğur v.
Turkey [GC], no 21594/93, §§ 91-92, ECHR 1999-III).
- Secondly,
the Court observes omissions as to the assessment of evidence by the
investigating authority. In particular, the only witnesses examined
were two members of the Greek Monitor Helsinki and two police
officers. Moreover, the authorities omitted to take into account the
medical report produced by the applicant and they did not order a
forensic examination with a view to establishing the injury sustained
by the applicant, despite the latter's request. The Government
relied on the lack of such a medical examination to claim that the
applicant's allegations were unsubstantiated; however, in the Court's
view, it is the investigating authorities' obligation to take
whatever reasonable steps they can to secure the evidence concerning
the incident, including, inter alia, a detailed statement
concerning the allegations from the alleged victim, eyewitness
testimony, forensic evidence and, where appropriate, additional
medical certificates apt to provide a full and accurate record of the
injuries and an objective analysis of the medical findings, in
particular as regards the cause of the injuries (see Batı and
Others v. Turkey, nos. 33097/96 and 57834/00, § 134,
ECHR 2004 IV). Any deficiency in the investigation which
undermines its ability to establish the cause of injury or the person
responsible will risk falling foul of this standard and could not in
any event be imputable to the applicant.
- Moreover,
the Court is further struck by the fact that the case was closed
because the authorities could not locate the applicant even though
her lawyers' contact details had been previously communicated to
them. The Court cannot agree with the Government that the applicant
was the only person responsible for the preliminary inquiry's failing
to identify the perpetrator because she had not assisted the
investigating authorities. Having regard to its case-law, the Court
cannot accept the submission that the progress and the effectiveness
of proceedings concerning allegations of ill-treatment could depend
entirely on the victim's conduct.
- Finally,
the Court notes that the criminal proceedings as a whole were very
slow, with long periods of inactivity. In particular, it observes
that on 28 November 2002, that is to say, ten months after the
complaint was lodged, the investigation file containing the testimony
of four witnesses was forwarded to the Athens public prosecutor. It
took the prosecutor almost a year to request the competent judicial
authority to summon the applicant to testify. However, it was not
until four months later that the court bailiff visited the settlement
in order to summon the applicant to testify. Finally, on 3 July 2004,
two years and five months after the complaint was lodged, the Athens
public prosecutor closed the file without carrying out any further
inquiries. In view of this substantial delay in the conduct of the
preliminary inquiry, the Court finds that the Greek authorities
cannot be considered to have acted with sufficient promptness or with
reasonable diligence, with the result that the perpetrator of alleged
acts of violence remained unidentified.
- As
far as the administrative proceedings are concerned, the Court
observes that despite the seriousness of the applicant's allegations,
the authorities did not consider it necessary to conduct a sworn
administrative inquiry (see the report issued by the Greek
Ombudsman in Relevant domestic Law and practice). On the
contrary, they conducted an informal investigation that ended in less
than one day and was carried out by the Deputy Director of Police,
who had been actively involved in the police operation in question.
It is apparent from the relevant report that the agent based his
conclusions on the testimonies given by five police officers involved
in the incident. Neither the applicant nor any of the other alleged
victims of police brutality were examined.
- In
the light of the above-mentioned shortcomings in the administrative
and judicial investigations, the Court concludes that they were not
effective. The Court rejects, therefore, the Government's objection
based on exhaustion of domestic remedies (see paragraphs 32-34
above), and holds that there has been a violation of Article 3 of the
Convention under its procedural limb, in that both investigations
into the alleged ill-treatment were ineffective.
- Lastly,
the Court considers that, in view of the grounds on which it has
found a violation of Article 3 in relation to its procedural aspect,
there is no need to examine separately the complaint under Article 13
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 3 OF THE CONVENTION
- The
applicant further complained that the ill-treatment she had suffered
and the subsequent lack of an effective investigation into the
incident were in part due to her Roma ethnic origin. She alleged a
violation of Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant argued that the police officers' and the judicial
authorities' perception of her as a Roma (Gypsy) had been a decisive
factor in their attitude and acts.
- The
Government pointed out that the Court had always required “proof
beyond reasonable doubt” and that in the present case there was
no evidence of any racially motivated act on the part of the
authorities.
2. The Court's assessment
- Discrimination
is treating differently, without an objective and reasonable
justification, persons in relevantly similar situations (see Willis
v. the United Kingdom, no. 36042/97, § 48, ECHR
2002-IV). Racial violence is a particular affront to human dignity
and, in view of its perilous consequences, requires from the
authorities special vigilance and a vigorous reaction. It is for this
reason that the authorities must use all available means to combat
racism and racist violence, thereby reinforcing democracy's vision of
a society in which diversity is not perceived as a threat but as a
source of its enrichment (see Nachova and Others v. Bulgaria
[GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 VII).
- The
Court recalls that when investigating violent incidents, State
authorities have the additional duty to take all reasonable steps to
unmask any racist motive and to establish whether or not ethnic
hatred or prejudice may have played a role in the events. Admittedly,
proving racial motivation will often be extremely difficult in
practice. The respondent State's obligation to investigate possible
racist overtones to a violent act is an obligation to use best
endeavours and not absolute; the authorities must do what is
reasonable in the circumstances of the case (see Nachova and
Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160,
ECHR 2005 VII.).
- Turning
to the present case, the Court's task is to establish whether in
carrying out the investigation into the applicant's allegation of
ill-treatment by the police, the domestic authorities discriminated
against the applicant and if so, whether the discrimination was based
on her ethnic origin.
- In
this respect, the Court considers unacceptable that not only was
there no attempt on the part of the investigating authorities to
verify whether the behaviour of the policemen involved in the
incident displayed anti-Roma sentiment, but the Deputy Director of
Police made tendentious general remarks in relation to the
applicant's Roma origin throughout the administrative investigation.
- In
particular, the Court is struck by the report on the findings of the
informal administrative investigation. It considers that the general
assertion that complaints raised by Roma were exaggerated and formed
part of their “common tactic to resort to the extreme
slandering of police officers with the obvious purpose of weakening
any form of police control” discloses a general discriminatory
attitude on the part of the authorities which reinforced the
applicant's belief that the lack of an effective investigation into
the incident was due to her Roma ethnic origin. No justification was
advanced by the Government with regard to these remarks.
- Having
regard to all the elements above, the Court finds that the failure of
the authorities to investigate possible racial motives for the
applicant's ill-treatment, combined with their attitude during the
investigation, constitutes discrimination with regard to the
applicant's rights which is contrary to Article 14 taken in
conjunction with Article 3 in its procedural limb.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 25,000 in respect of the physical,
psychological and emotional pain she had suffered.
- The
Government argued that the amount claimed was excessive and
disproportionate on the basis of the criteria established by the
Court's case-law.
- The Court considers that the applicant undoubtedly
suffered non-pecuniary damage which cannot be compensated solely by
the findings of violations. Having regard to the specific
circumstances of the case and ruling on an equitable basis, the Court
awards EUR 20,000 under this head, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the Court, in respect of which a bill of costs was produced.
- The
Government did not agree with the amount claimed, stating, inter
alia, that it was excessive.
- According
to the Court's settled case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were also reasonable as to
quantum (see, for example, Sahin v. Germany [GC], no.
30943/96, § 105, ECHR 2003-VIII).
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 1,000 covering costs for the proceedings
before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Joins to the merits the question of exhaustion
of domestic remedies and rejects it unanimously;
- Declares unanimously the application admissible;
- Holds, by six votes to one, that there has been
no violation of Article 3 of the Convention in respect of the
treatment suffered by the applicant at the hands of the police;
- Holds unanimously that there has been a
violation of Article 3 of the Convention in that the authorities
failed to conduct an effective investigation into the incident;
- Holds unanimously that there is no need to
examine separately the complaint under Article 13 of the Convention;
- Holds unanimously that there has been a
violation of Article 14 taken in conjunction with Article 3 of the
Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros) in respect of non-pecuniary damage and EUR
1,000 (one thousand euros) in respect of costs and expenses, plus any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of Mr
Loucaides is annexed to this judgment.
L.L.
S.N.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES
Although
I agree with the conclusions of the majority as regards the
violations of the Convention set out in the operative part of the
judgment, I cannot share their opinion that there has been no
violation of Article 3 of the Convention in its substantive aspect as
regards the alleged ill-treatment inflicted by police officers on the
applicant.
According
to the applicant, she and other Roma women were rounded up by the
police for a body search. Whilst the police operation was taking
place, the applicant waited her turn to be searched by the police,
who were searching other residents of the settlement. She noticed
that certain police officers were taunting a disabled Rom who was a
relative of hers. As she moved to approach the police officers, she
was forcefully pushed back by one of them while another one kicked
her in the back, in spite of the fact that she had shouted that she
was pregnant. As a result of the kick, the applicant felt an intense
pain in the abdominal area and started bleeding. Although the
bleeding was obvious to all the police officers present, the
applicant was not taken to hospital. Not having any personal
documents – as she was at the time an unregistered stateless
person – and being alone, she felt that she could not go to the
hospital on her own for fear of being refused treatment.
The
next day she informed members of the Greek Helsinki Monitor that she
had been kicked by a police officer and that she was bleeding. One of
them then rushed her to a maternity clinic, where she was admitted
immediately. According to the medical report drawn up at the end of
the examination, “the applicant was admitted to the hospital on
29 January 2002, 10 weeks pregnant, with haemorrhaging from her
uterus (risk of spontaneous abortion). On 2 February 2002 there was a
complete expulsion of the foetus and on 4 February 2002 her uterus
was cleaned.”
On 1
February 2002 counsel for the applicant lodged a criminal complaint
with the Athens public prosecutor against the police officer who had
allegedly used violence against the applicant and whose identity was
unknown to her. In the complaint the applicant joined the proceedings
as a civil party seeking damages, asked to be examined by a forensic
doctor and named three persons who could testify as witnesses. She
also included the address and telephone numbers of her lawyers.
The
Court found that there had been a violation of Article 3 in its
procedural aspect as regards the incident described by the applicant.
On 3
July 2004, two years and five months after the complaint was lodged,
the Athens public prosecutor closed the file without carrying out any
further inquiries. In view of this substantial delay in the conduct
of the preliminary inquiry, the Court rightly found that the Greek
authorities could not be considered to have acted with sufficient
promptness or with reasonable diligence, with the result that the
perpetrator of alleged acts of
violence had remained unidentified. As far as the administrative
proceedings were concerned, the Court observed that despite the
seriousness of the applicant's allegations, the authorities had not
considered it necessary to conduct a sworn administrative inquiry. On
the contrary, they had conducted an informal investigation that had
ended in less than one day and had been carried out by the Deputy
Director of Police, who had been actively involved in the police
operation in question. It is apparent from the relevant report that
the agent based his conclusions exclusively on the testimonies given
by five police officers involved in the incident. Neither the
applicant nor any of the other alleged victims of police brutality
were examined.
However,
the majority considered that there was insufficient evidence to
conclude that there had been a violation of Article 3 on account of
the alleged torture. They based their finding on the following
reasoning:
(a)
The circumstances under which the bleeding from the applicant's
uterus occurred were not entirely clear.
(b)
The medical report produced by the applicant only stated that she was
bleeding and that she had suffered a miscarriage, without mentioning
the existence of bruises or other injuries and without reference to
any possible causes of the bleeding.
(c)
The applicant had not produced any other cogent evidence in support
of her allegations of ill-treatment, such as objective eyewitness
testimonies.
The
impression is given, by the reasoning of the majority, that the
evidence of a victim of police ill-treatment is not enough to
establish such ill-treatment, regardless of the credibility of such
testimony. I cannot accept that approach, which I consider harks back
to the early legal history of many countries when more than one
witness was required to establish anything in judicial proceedings.
The approach of the majority is very dangerous in the sense that it
may cause injustice to individuals like the applicant, whose evidence
may not by itself be taken seriously because of police prejudice as
regards their status (see paragraphs 64-66 of the judgment); at the
same time, it may encourage the police to use unacceptable methods of
investigation amounting to ill-treatment in respect of persons like
the applicant or other persons who do not have any eyewitnesses to
corroborate their complaints of ill-treatment.
The
applicant stated her complaint in a coherent and convincing manner.
She explained that she had been kicked on her back and as a result
had felt an intense pain in the abdominal area and started bleeding.
There followed a miscarriage. She could not identify the police
officer who had kicked her. That is understandable. What I cannot
understand is why the majority did not believe her story, without
even finding a concrete well-founded reason why she must have lied.
In fact the evidence does not disclose any such reason.
The
fact that the medical report produced by the applicant made no
reference to bruises and to any possible causes of the bleeding does
not detract from the truthfulness of the applicant's complaint,
bearing in mind that the report in question was prepared by a
gynaecologist and not by a forensic doctor.
Moreover,
the inadequacy and ineffectiveness of the police investigation of the
applicant's complaint, as set out above, does not amount only to a
violation of the procedural aspect of the complaint in question. In
my opinion it amounts also to a strong corroboration of the same
complaint in its substantive aspect. For the attitude of the police
could not be explained as anything other than an effort to cover up
the guilty behaviour of one of their colleagues.
In
the light of the above, I believe that the applicant's version of
events is true and I therefore consider beyond any doubt that there
has been a violation of Article 3 in its substantive aspect.
