CASE OF BEKOS AND KOUTROPOULOS v.
(Application no. 15250/02)
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 Bekos and
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
Mr J. Casadevall,
Mr C.L. Rozakis,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on that date:
1. The case originated in an
application (no. 15250/02) against the
2. The applicants were
represented by the
3. The applicants alleged that they 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. They further alleged that the impugned events had been motivated by racial prejudice, in breach of Article 14 of the Convention.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of
7. The applicants and the Government each filed observations on the merits (Rule 59 § 1).
8. The applicants, who are
Greek nationals of Roma origin, were born in 1980 and live in Mesolonghi (
I. THE CIRCUMSTANCES OF THE CASE
A. Outline of the events
10. At that point three police officers, Mr Sompolos, Mr Alexopoulos and Mr Ganavias, arrived. The first applicant claimed that he was initially handcuffed without being beaten. Then, an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon. He stopped when the first applicant complained that he had a medical condition and was feeling dizzy.
11. Following their arrest, the applicants were taken to the Mesolonghi police station, where officers Tsikrikas, Avgeris, Zalokostas, Skoutas and Kaminatos were present. The first applicant alleged that as he was being led to his cell one officer beat him twice with a truncheon and another slapped him in the face.
12. At the first applicant was taken to the interview room, where allegedly three police officers punched him in the stomach and the back, trying to extract confessions to other crimes and information about who was dealing in drugs in the area. According to the first applicant, the police officers took turns beating him, slapping him and hitting him all over his body. The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary. He alleged that this officer also pushed him against the wall, choking him with the iron bar and threatening to sexually assault him, saying “I will f... you”, while trying to lower his trousers.
13. The second applicant said that he was also abused throughout his interrogation. During the early hours of the day, he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again. Subsequently, the second applicant identified the officer as Mr Tsikrikas. The second applicant also testified that the police officers “inserted a truncheon in [his] bottom and then raised it to [his] face, asking [him] whether it smelled”.
14. The applicants stated that they were both able to hear each
other’s screams and cries throughout their interrogation. The first applicant
testified before the domestic court: “I could hear Koutropoulos crying in the
other room”. The second applicant stated: “I screamed and cried when they were
beating me. I could also hear Bekos’s screams and cries”. They also claimed that they suffered repeated verbal
abuse about their Roma origins. In his sworn deposition dated
The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention.
15. The applicants remained
in detention until the morning of
B. Administrative investigation into the incident
19. After the incident
received greater public attention, the Greek police headquarters requested that
the internal investigation be upgraded to a Sworn Administrative Inquiry
Εξέταση), which started on
20. The report on the
findings of the Sworn Administrative Inquiry was issued on
21. More specifically, it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and/or kicking them in the stomach. It further found that although the two officers had denied ill-treating the applicants, neither officer was able to “provide a convincing and logical explanation as to where and how the above plaintiffs were injured, given that according to the forensic doctor the ill-treatment occurred during the time they were in police custody”.
22. As a result, it was recommended that disciplinary measures in the form of “temporary suspension from service” be taken against both Mr Tsikrikas and Mr Avgeris. The inquiry exculpated the other police officers who had been identified by the applicants. Despite the above recommendation, neither Mr Tsikrikas nor Mr Avgeris were ever suspended.
C. Criminal proceedings against police officers
24. On 1 July 1998 the applicants and the first applicant’s father filed a criminal complaint against the Deputy Commander in Chief of the Mesolonghi police station and “all other” officers of the police station “responsible”.
30. Mr Tsikrikas’s trial took
place on 8 and 9 October 2001 before the three-member Patras Court of Appeal.
The court heard several witnesses and the applicants, who repeated their
allegations of ill-treatment (see paragraphs 10-14 above). Among others, the
court heard Mr Dimitras, a representative of the Greek Helsinki Monitor,
who stated that the said organisation was monitoring the situation of Roma in
31. On 9 October 2001 the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty (decision no. 1898/2001). In particular, the court first referred to the circumstances surrounding the applicants’ arrest and to the subsequent involvement of members of the Greek Helsinki Monitor in the applicants’ case, noting their role in monitoring alleged violations of human rights against minorities. Taking also into account the forensic doctor’s findings, the court reached the following conclusion:
“... Admittedly, the second applicant had clashed with Mr Pavlakis. Further, given the applicants’ light clothing, it was logical that they were injured during the fight that took place when they were arrested. Even if some of the applicants’ injuries were inflicted by police officers during their detention, it has not been proved that the accused participated in this in one way or the other, because he was absent when they arrived at the police station and did not have contact with them until approximately two hours later, on his arrival at the police station. In his sworn deposition dated 3 July 1998, the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall, blond police officer (a description that does not match the features of the accused) and that the same police officer had also beaten him during his detention. However, the accused was not present when the applicants were arrested. If the applicants had indeed been beaten by police officers during their detention, they would have informed their relatives who arrived at the police station that same night. Thus, the accused must be found not guilty.”
32. Under Greek law, the applicants, who had joined the proceedings as civil parties, could not appeal against this decision.
II. REPORTS OF INTERNATIONAL ORGANISATIONS ON ALLEGED DISCRIMINATION AGAINST ROMA
33. In its country reports of
the last few years, the European Commission against Racism and Intolerance at
the Council of Europe (ECRI) has expressed concern about racially motivated
police violence, particularly against Roma, in a number of European countries
34. The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the European Union (EU) network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal.
35. In its second report on
“26. There have been consistent reports that
Roma/Gypsies, Albanians and other immigrants are frequently victims of
misbehaviour on the part of the police in
27. ECRI also encourages the Greek authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti-discrimination standards. Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ...
31. As noted by ECRI in its first report, the
Roma/Gypsy population of
34. Roma/Gypsies are also reported to experience discrimination in various areas of public life...They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ...”
36. In its third report on
ECRI notes with concern that since the adoption of its second report on
69. ECRI welcomes the fact that the government
has taken significant steps to improve the living conditions of Roma in
70. ...ECRI deplores the many cases of local authorities refusing to act in the interests of Roma when they are harassed by members of the local population. It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the Roma community to the same extent as to any other Greek citizen...
105. ECRI expresses concern over serious allegations of ill-treatment of members of minority groups, such as Roma and both authorised and unauthorised immigrants. The ill-treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody. ECRI is particularly concerned over the existence of widespread allegations of improper use of firearms, sometimes resulting in death. It is equally concerned over reports of ill-treatment of minors and expulsion of non-citizens outside of legal procedures.
106. The Greek authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses. For example, the Internal Affairs Directorate of the Greek Police was established in 1999 and is responsible for conducting investigations, particularly into acts of torture and violation of human dignity. The police –specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above-mentioned body when dealing with a case in which a police officer is implicated. The Greek Ombudsman is also competent for investigating, either on request or ex officio, allegations of misbehaviour by a police officer, but he is only entitled to recommend that appropriate measures be taken. ECRI welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill-treatment, particularly involving non-citizens, to be prevented and prosecuted with the appropriate degree of severity. The authorities have pointed out that instances of ill-treatment were primarily due to difficult conditions of detention. ECRI notes with satisfaction cases of law enforcement officials having been prosecuted, and in some cases penalised, for acts of ill-treatment. However, human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence, whose prosecution has not lead to results or even been initiated. ECRI deplores such a situation and hopes that it will no longer be tolerated.”
37. In their joint report
published in April 2003 (“Cleaning
Operations – Excluding Roma in
“ERRC/GHM monitoring of policing in
Anti-Romani sentiment among police officers often leads to instances of harassment, inhuman and degrading treatment, verbal and physical abuse, and arbitrary arrest and detention of Roma at the hands of police. The ERRC and GHM regularly document ill-treatment of Roma at the hands of the police, either at the moment of arrest or in police custody. Police officers’ use of racial epithets in some cases of police abuse of Roma is indicative that racial prejudice plays a role in the hostile treatment to which officers subject Roma...”
III. RELEVANT DOMESTIC LAW
38. According to Article 2 §
1 of the Greek Constitution, the “value of the human being” is one of the
fundamental principles and a “primary obligation” of the
39. Article 5 § 2 of the Constitution reads as follows:
“All persons living within the Greek territory shall enjoy full protection of their life, honour and liberty irrespective of nationality, race or language and of religious or political beliefs. Exceptions shall be permitted only in cases provided for by international law...”
40. Law no. 927/1979 (as amended by Law no. 1419/1984 and Law no. 2910/2001) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination.
IV. RELEVANT INTERNATIONAL LAW
41. European Union Council
Directive 2000/43/CE of
“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
3. Paragraph 1 shall not apply to criminal procedures.
5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
42. The applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality which inflicted on them great physical and mental suffering amounting to torture, inhuman and/or degrading treatment or punishment. They also complained that the Greek investigative and prosecuting authorities failed to carry out a prompt and effective official investigation into the incident. They argued that there had been a breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The submissions of the parties
43. The applicants submitted that they had suffered serious bodily harm at the hands of the police and that the investigation into the incident and the ensuing judicial proceedings were ineffective, deficient and inconclusive. They stressed that at the material time they were young and vulnerable. They had also received threats during the course of the investigation. This was the reason why, at some point, they claimed that they did not wish to pursue their complaints against the police officers.
44. The Government referred to the findings of the domestic court and submitted that the applicants’ complaints were wholly unfounded. Their moderate injuries were the result of the struggle that took place during their arrest. The applicants themselves had stated that the conduct of the police officers was justified and that they did not want to see them prosecuted. The investigation into the incident was prompt, independent and thorough, and led to a fine being imposed on Mr Tsikrikas. Criminal charges were also brought against him. Several witnesses and the applicants were heard in court. The fact that the accused was acquitted had no bearing on the effectiveness of the investigation.
B. The Court’s assessment
1. Concerning the alleged ill-treatment
45. 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
46. 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).
47. In the instant case the applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality. Admittedly, on the day of their release from police custody, the applicants bore injuries. According to the Court’s case-law, “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention” (Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996–VI, p. 2278, § 61).
48. The Court considers that in the present case the domestic authorities have failed to provide such an explanation. It notes in this respect that the three-member Patras Court of Appeal which tried the only police officer who had been committed to trial attributed the applicants’ injuries to the struggle that took place during their arrest and considered that “if the applicants had indeed been beaten by police officers during their detention, they would have reported this fact to their relatives”; in the Court’s view this reasoning is less than convincing, in particular taking into account that the administrative investigation that was conducted into the incident established that the applicants had been treated “with particular cruelty during their detention” and the acknowledgement by the Chief of the Greek Police that the applicants had been beaten by police officers during their detention.
49. The question which therefore arises next is whether the minimum level of severity required for a violation of Article 3 of the Convention can be regarded as having been attained in the instant case (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 84, ECHR 2000-VII). The Court recalls that the assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1517, § 52).
50. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will also have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).
51. In the light of the above circumstances, the Court considers that the serious physical harm suffered by the applicants at the hands of the police, as well as the feelings of fear, anguish and inferiority which the impugned treatment had produced in them, must have caused the applicants suffering of sufficient severity for the acts of the police to be categorised as inhuman and degrading treatment within the meaning of Article 3 of the Convention.
52. The Court concludes that there has been a breach of Article 3 of the Convention in this regard.
2. Concerning the alleged inadequacy of the investigation
53. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [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, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
54. As regards the present case, the Court notes that on several occasions, during both the administrative inquiry that was conducted into the incident and the ensuing judicial proceedings, it has been acknowledged that the applicants were ill-treated while in custody. However, no police officer was ever punished, either within the criminal proceedings or the internal police disciplinary procedure for ill-treating the applicants. In this regard the Court notes that the fine of less than 59 euros imposed on Mr Tsikrikas was imposed not on the grounds of his own ill-treatment of the applicants but for his failure to prevent the occurrence of ill-treatment by his subordinates (see paragraph 23 above). It is further noted that neither Mr Tsikrikas nor Mr Avgeris were at any time suspended from service, despite the recommendation of the report on the findings of the administrative inquiry (see paragraphs 20-22 above). In the end, the domestic court was satisfied that the applicants’ light clothing was the reason why the latter got injured during their arrest. Thus, the investigation does not appear to have produced any tangible results and the applicants received no redress for their complaints.
55. In these circumstances, having regard to the lack of an effective investigation into the credible allegation made by the applicants that they had been ill-treated while in custody, the Court holds that there has been a violation of Article 3 of the Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
56. The applicants complained that they had not had an effective remedy within the meaning of Article 13 of the Convention, which stipulates:
“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.”
57. In view of the grounds on which it has found a violation of Article 3 in relation to its procedural aspect (see paragraphs 53 to 55 above), the Court considers that there is no need to examine separately the complaint under Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
58. The applicants complained that the ill-treatment they had suffered, along with the subsequent lack of an effective investigation into the incident, were in part due to their Roma ethnic origin. They 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.”
A. The submissions of the parties
59. The applicants acknowledged that in assessing evidence the standard of proof applied by the Court was that of “proof beyond reasonable doubt”, but noted that the Court had made it clear that that standard had not be interpreted as requiring such a high degree of probability as in criminal trials. They affirmed that the burden of proof had to shift to the respondent Government when the claimant established a prima facie case of discrimination.
60. Turning to the facts of
the instant case, the applicants claimed that the nature of the incident
itself, the racist language used by the police and the continuous failure of
the domestic authorities to sanction anti-Roma police brutality clearly
demonstrated a compelling case of racially motivated abuse and dereliction of
responsibility. In this respect the applicants reiterated that the police
officers had explicitly used racist language and had referred to their ethnic
origin in a pejorative way. They further argued that the discriminatory
comments which the police officers shouted at them during their detention had
to be seen against the broader context of systematic racism and hostility which
law-enforcement bodies in
61. The Government emphasised that the Court had always required “proof beyond reasonable doubt” and that in the instant case there was no evidence of any racially motivated act on the part of the authorities. They firmly denied that the applicants had been ill-treated; however, even assuming that the police officers who were involved in the incident had acted in a violent way, the Government believed that their behaviour was not racially motivated but was tied to the fact that the applicants had previously committed an offence.
62. The Government further
contended that in its latest report on
B. The Court’s assessment
1. Whether the respondent State is liable for degrading treatment on the basis of the victims’ race or ethnic origin
63. 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 (Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, 6 July 2005).
64. Faced with the applicants’ complaint of a violation of Article 14, as formulated, the Court’s task is to establish whether or not racism was a causal factor in the impugned conduct of the police officers so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3.
65. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 47 above); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis. However, where it is alleged – as here – that a violent act was motivated by racial prejudice, such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude on the part of the person concerned. While in the legal systems of many countries proof of the discriminatory effect of a policy or decision will dispense with the need to prove intent in respect of alleged discrimination in employment or the provision of services, that approach is difficult to transpose to a case where it is alleged that an act of violence was racially motivated (see Nachova and Others v. Bulgaria, cited above, § 157).
66. Therefore, turning to the facts of the present case, the Court considers that whilst the police officers’ conduct during the applicants’ detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that the treatment inflicted on the applicants by the police was racially motivated. Further, in so far the applicants have relied on general information about police abuse of Roma in Greece, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 3 of the Convention. The question of the authorities’ compliance with their procedural obligation is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157).
67. In sum, having assessed all relevant elements, the Court does not consider that it has been established beyond reasonable doubt that racist attitudes played a role in the applicants’ treatment by the police.
68. It thus finds that there has been no violation of Article 14 of the Convention taken together with Article 3 in its substantive aspect.
2. Whether the respondent State complied with its obligation to investigate possible racist motives
69. The Court considers 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 to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence (see, mutatis mutandis, Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, §§ 158-59, 26 February 2004).
70. The Court further considers that the authorities’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention to secure the fundamental value enshrined in Article 3 without discrimination. Owing to the interplay of the two provisions, issues such as those in the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], cited above, § 161).
71. In the instant case the Court has already found that the Greek authorities violated Article 3 of the Convention in that they failed to conduct an effective investigation into the incident. It considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the abuse suffered by the applicants at the hands of the police.
72. The authorities investigating the alleged ill-treatment of the applicants had before them the sworn testimonies of the first applicant that, in addition to being the victims of serious assaults, they had been subjected to racial abuse by the police who were responsible for the ill-treatment. In addition, they had before them the joint open letter of the Greek Helsinki Monitor and the Greek Minority Rights Group protesting about the ill-treatment of the applicants, which they qualified as police brutality against Roma by the Greek police, and referring to some thirty oral testimonies concerning similar incidents of ill-treatment of members of the Roma community. The letter concluded by urging that precise and detailed instructions should be given to all police stations of the country regarding the treatment of Roma by the police (see paragraph 17 above).
73. The Court considers that
these statements, when combined with the reports of international organisations
on alleged discrimination by the police in
74. In the present case, despite the plausible information available to the authorities that the alleged assaults had been racially motivated, there is no evidence that they carried out any examination into this question. In particular, nothing was done to verify the statements of the first applicant that they had been racially verbally abused or the other statements referred to in the open letter alleging similar ill-treatment of Roma; nor do any inquiries appear to have been made as to whether Mr Tsikrakas had previously been involved in similar incidents or whether he had ever been accused in the past of displaying anti-Roma sentiment; nor, further, does any investigation appear to have been conducted into how the other officers of the Mesolonghi police station were carrying out their duties when dealing with ethnic minority groups. Moreover, the Court notes that, even though the Greek Helsinki Monitor gave evidence before the trial court in the applicants’ case and that the possible racial motives for the incident cannot therefore have escaped the attention of the court, no specific regard appears to have been paid to this aspect, the court treating the case in the same way as one which had no racial overtones.
75. The Court thus finds that the authorities failed in their duty under Article 14 of the Convention taken together with Article 3 to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken together with Article 3 in its procedural aspect.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
76. 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.”
1. Pecuniary damage
77. The first applicant claimed 4,540.80 euros (EUR) for loss of income over a period of twelve months after the incident. The second applicant claimed EUR 2,250 for loss of income over a period of six months after the incident. They further submitted that due to their injuries they were unable to resume their previous occupations.
78. The Government submitted that the applicants had not duly proved the existence of pecuniary damage and that their claims on this point should be dismissed.
79. The Court notes that the claims for pecuniary damage relate to loss of income, which was allegedly incurred over a period of twelve and six months respectively after the incident, and to alleged subsequent reduction of income. It observes, however, that no supporting details have been provided for these losses, which must therefore be regarded as largely speculative. For this reason, the Court makes no award under this head.
2. Non-pecuniary damage
80. The applicants claimed EUR 20,000 each in respect of the fear, pain and injury they suffered.
81. The Government argued that any award for non-pecuniary damage should not exceed EUR 10,000 for each applicant.
82. The Court considers that the applicants have 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 each applicant EUR 10,000, plus any tax that may be chargeable on that amount.
B. Costs and expenses
83. The applicants made no claim for costs and expenses.
C. Default interest
84. 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 UNANIMOUSLY
1. Holds that there has been a violation of Article 3 of the Convention in respect of the treatment suffered by the applicants at the hands of the police;
2. Holds 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;
3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;
4. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention in respect of the allegation that the treatment inflicted on the applicants by the police was racially motivated;
5. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention in that the authorities failed to investigate possible racist motives behind the incident;
(a) that the respondent State is to pay to each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in
Michael O’Boyle Nicolas
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Sir Nicolas Bratza;
(b) separate opinion of Mr Casadevall.
CONCURRING OPINION OF JUDGE
SIR NICOLAS BRATZA
I agree with the conclusions and with the reasoning of the Chamber, save that I have the same hesitations about the passage in paragraph 65 of the judgment, which draws on paragraph 157 of the Court’s Nachova judgment (Nachova and Others v. Bulgaria [GC], nos.43577/98 and 43579/98), as I expressed in the Nachova case itself.
Although it does not affect the outcome of the present case, any more than it did in the case of Nachova, I remain of the view that the paragraph is too broadly expressed when it suggests that, because of the evidential difficulties which would confront a Government, it would rarely if ever be appropriate to shift the burden to the Government to prove that a particular act in violation of the Convention (in this case, Article 3; in Nachova, Article 2) was not racially motivated. As in the Nachova case itself, I consider that circumstances could relatively easily be imagined in which it would be justified to require a Government to prove that the ethnic origins of a detainee had not been a material factor in the ill-treatment to which he had been subjected by agents of the State.
SEPARATE OPINION OF JUDGE CASADEVALL
1. I voted – albeit without great conviction – in favour of the finding that there had been no violation of Article 14 taken in conjunction with Article 3 of the Convention in respect of the applicants’ allegation that the treatment inflicted on them by the police was racially motivated (point 4 of the operative provisions). My vote was prompted by the need for solidarity and cohesion after the Grand Chamber’s recent decision in the case of Nachova v. Bulgaria, which raised an almost identical question to that of the present case, namely the existence of racial motives in the conduct of members of the security forces. I thus maintain the view that I expressed with some of my colleagues in our joint dissenting opinion annexed to the Nachova judgment.
2. Since the Court, in the present case also, found that there had been a twofold violation of Article 3, under substantive and procedural heads, it would have been sufficient, in my opinion, if the Court had also found a violation of Article 14 by adopting a holistic approach to the complaint, instead of minimising the problem by simply attaching it to the procedural aspects of Article 3.
3. The serious, precise and corroborative presumptions which emerge from the case file as a whole, together with the “plausible information available to the authorities that the alleged assaults had been racially motivated...” (paragraph 74 of the judgment) and the joint open letter of 11 May 1998 from the Greek Helsinki Monitor and the Greek Minority Rights Group to the Ministry of Public Order (paragraph 17 of the judgment), confirm the conclusion that there was a violation of Article 14 taken in conjunction with Article 3 of the Convention, without any need to distinguish between substantive and procedural aspects.