Police brutality
II. RELEVANT DOMESTIC LAW AND PRACTICE 30. 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 31. 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 32. 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. 33. 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. 34. 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. 35. 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 36. 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. 37. 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 38. 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). 39. 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 40. 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. 41. 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. 42. 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 43. 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). 44. 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 ). 45. 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 ). 46. 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 47. 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. 48. 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. 49. 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). 50. 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 57834/0 0, § 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. 51. 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. 52. 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. 53. 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. 54. 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. 55. 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 56. 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.” 57. The Government contested that argument. A. Admissibility 58. 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 59. 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. 60. 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 61. 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). 62. 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.). 63. 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. 64. 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. 65. 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. 66. 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 67. 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 68. The applicant claimed EUR 25,000 in respect of the physical, psychological and emotional pain she had suffered. 69. The Government argued that the amount claimed was excessive and disproportionate on the basis of the criteria established by the Court's case-law. 70. 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 2 0 ,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 71. 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. 72. The Government did not agree with the amount claimed, stating, inter alia, that it was excessive. 73. 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). 74. 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 75. 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.
The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the alleged ill-treatment, since the evidence before it did not enable it to find beyond all reasonable doubt that the applicant’s miscarriage had been the result of police brutality. The Court further held that there had been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegations. The Court lastly found that the failure of the Greek authorities to investigate possible racial motives behind the applicant’s ill-treatment, combined with the generally partial attitude throughout the investigation, had constituted discrimination, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 3.