CASE OF ZELILOF v. GREECE
(Application no. 17060/03)
JUDGMENT
STRASBOURG
24 May 2007
Omvendt bevisbyrde i politiklagesag, Utilstrækkelig
efterforskning, erstatning til klageren. Krænkelse af
EMRK artikel 3.
Rul ned for at se afgørelsen gengivet uredigeret
på engelsk
Klageren var den 23.
december 2001 til fods på vej til et cafeteria, da han
ved cafeteriet ser, at nogle af hans bekendte i bil er
blevet standset af politiet. Klageren har forklaret, at
han gik hen til bilen for at spørge hans bekendte, hvad
der foregik. Da han stod ved bilen, lyste een af
politifolkene ham i hovedet med sin lommelygte og bad
ham om at vise legitimation. Han oplyser, at han derpå
forklarede, at det kunne han ikke, men at han foreslog
at de gik ind i politiets bygning, som lå lige ved siden
af stedet, hvor de stod. Der var hans identitetspapirer
udstedt, og det kunne på denne måde afklares, hvem han
var. Ved denne lejlighed skulle en betjent ifølge
klageren have spurgt, om han skulle være "smart" (tough
guy). Få sekunder senere skulle en betjent ifølge
klageren have viklet sine håndjern omkring sine
knytnæver og slået klageren i munden. Klageren følte sig
derpå svimmel og blev sparket to gange i brystet og
underlivet, da han faldt (§ 7).
I § 8 forklarer klageren videre, at det lykkedes ham og
en anden bekendt at komme væk fra stedet, da en anden
bekendt kom hen imod politifolkene og bad dem om at
ophøre med at slå klageren i hovedet, da denne havde
problemer med sit hoved. Klageren fortæller videre, at
han på dette tidspunkt hørte 3-4 skud blive affyret. (En
politimand har senere forklaret, at han affyrede 3
varselsskud op i luften på en sikker måde for at skræmme
klageren, der på dette tidspunkt var i færd med at
stikke af.) Klageren var derefter løbet ind på
politistationen ved siden af stedet, hvor han klagerede
over, hvad der var sket. To politifolk skulle have
grebet ham og slæbt ham (videre?) ind på
politistationen, hvor han skulle være blevet lagt i
håndjern og fået slag og spark forskellige steder på
kroppen. stikke af fra stedet og løbe ind på
politistationen. Dette skulle ifølge klageren have stået
på i 30 minutter, indtil en højtstående politimand var
ved at nærme sig. Derpå havde en politimand taget en
beskit gulvmobbe og med den tørret blod væk fra gulvet
og fra klagerens ansigt, medens han havde råbt: "Fald
død om".
Klageren mistede bevidstheden og blev kørt på
hospitalet, hvor han var indlagt til den 28. december
2001 (dvs. 5 dage).
Af § 10 følger det, at 4 andre bekendte til klageren,
som også var involveret i episoden, blev anholdt samme
nat. To af dem blev sigtet og tiltalt for vold mod
politiet. De havde i den senere straffsag mod dem
forklaret, at de havde været udsat for racisme. En
betjent skulle ifølge en af disse betjente under
indtransport og på politistationen have råbt mange
nærmere præciserede racistiske og fornærmende udtalelser
mod ham og have truet ham til at forlade landet.
I § 11 forklarer myndighederne, at der var tale om en
rutinemæssig kontrol af de implicerede. Da klageren kom
og blandede sig i politiforretningen, havde de bedt ham
holde sig på aftand både af hensyn til
politiforretningens gennemførelse og af hensyn til de
involveredes krav på ikke at blive offentligt udstillet.
Klageren havde imidlertid ignoreret politiets
henstilling om ikke at komme for tæt på, og politiet
havde bedt ham identificere sig. Dette havde han afvist.
Efter at en politibetjent var blevet slået i ansigtet af
klageren, var han faldet. To kollegaer havde derpå
forsøgt at ilægge klageren håndjern. Denne havde sat sig
kraftigt til modværge blandt andet ved at sparke og slå
politifolkene (§ 12).
Under forsøget på at anholde klageren, var flere unge
kommet til fra cafeteriet. De begyndte at slå på
politifolkene, og det var ved denne lejlighed lykkes
klageren at stikke af. På dette tidspunkt blev der
affyret et varselsskud for at skræmme angriberne væk (§
13).
Skudet var blevet hørt inde på politistationen, og
kollegaer kom politifolkene til undsætning. Et antal
personer, som enten var involveret i eller havde
overværet episoden løb ind på cafeen. 3 blev anholdt på
stedet og en senere. De blev sigtet for at modsætte sig
en lovlig anholdelse, for at befri en anholdt og for
vold. De var ikke blevet udsat for vold eller andet fra
politiet. Politiet havde straks efter det nødvendige
politiarbejde sørget for, at klageren kom på hospitalet,
og ingen var tilbageholdt unødigt længe (§ 14).
På klageren var der ved lægeundersøgelsen mærker på
klagerens underliv og bryst. Han havde mærker ved
øjnene, og der var sår på hans hoved og ryg, der krævede
sygning. Han havde en let hjernerystelse. Han var
indlagt mellem den 24. og den 28. december 2001.
Den 29. januar 2002 blev klageren på anklagemyndighedens
foranledning undersøgt af retsmedicinere. Han havde også
fået slået en revne i en tandkrone, og hans kæbe havde
været af led. Skaderne ventedes at ville vare mellem
18-21 dage.
Hos to af politifolkene blev der også konstareret
skader. En af dem havde været indlagt et døgn (§ 18).
En administrativ undersøgelse blev sat i værk den 9.
januar. 3 politifolk blev afhørt, og de
vidneforklaringer, som var fremkommet fra andre vidner
blev gennemgået, uden at de blev foretaget nærmere
undersøgelser vedrørende skudafgivelsen. Den 9. august
2002 konkluderedes det, at personerne havde modsat sig
at følge politiets anvisninger, og at en af de
implicerede havde haft til hensigt at kontrollere
politiets arbejde. Der blev lagt vægt på, at
politifolkene havde været udsat for angreb fra andre,
som kom til stede, og at de havde handlet korrekt under
de givne omstændigheder. Politifolkene havde været i
fare, og havde kun anvendt den fornødne magt.
Politifolkene havde været i fare (§ 20).
Myndigheden fandt det ikke bevist, at politifolkene
havde optrådt voldeligt på politistationen. De mærker,
som klageren og de andre anholdte havde pådraget sig,
havde de pådraget sig under tumulten før ankomsten til
politistationen. Deres forklaringer var i øvrigt
utroværdige. Forklaringerne var formentlig afgivet for
at stille klagerne bedre under de alvorlige
straffesager, som de kunne imødese på grund af deres
handlinger. De ville med forklaringerne blot stille
politiet i et dårligt lys (§ 21).
Rapporten var upræces, idet det fremgik, at hverken
politifolkene eller klageren var mødt op til den
retsmedicinske undersøgelse forlangt af
anklagemyndigheden. Den forholder sig ikke til klagerens
undersøgelse den 29. januar 2002 (§ 23).
I januar 2005 blev klageren idømt 14 måneders fængsel (§
26).
I juli 2002 opgav anklagemyndigheden strafforfølgning
mod politifolkene. Der var ikke afhørt vidner personligt
af anklageren (§ 29).
Denne afgørelse blev påklaget til den højere
anklagemyndighed, som fandt at klagen var grundløs, og
at der ikke var grundlag for yderligere afhøringer af
vidner. Der var ikke behov for en indenretlig
undersøgelse af sagen (§ 31).
I § 44 fastslår EMD, at bevisbyrden normalt vendes om i
sager, hvor personer er i politiets varetægt. Dette
bygger på et synspunkt om, at begivenhedsforløbet under
frihedsberøvelse fuldt ud er i myndighedernes kontrol.
I § 45 fastslår Domstolen, at den ofte ikke foretager
egentlig bevisvurdering men overlader dette til de
nationale domstole. I sager om påståede krænkelser af
EMRK artikel 2 og EMRK artikel 3 foretager EMD
imidlertid en sådan bevisvurdering.
I § 47 fastlår EMD, at alvoligheden af skaderne på
klageren vælter bevisbyrden over på regeringen. I § 50
lægger EMD vægt på, at klagerens deltagelse i
begivenhederne var begrænset, og at skaderne på
politifolkene var begrænsede. EMD lægger også vægt på,
at klagerens skader er mere alvorlige end
politifolkenes. EMD mener, at regeringen ikke har løftet
sin bevisbyrde og anser artikel 3 for krænket.
EMD vurderede også myndighedernes efterforskning af
sagen. Sagens lægeoplysninger taler efter EMDs
opfattelse for, at der er grund til at undersøge
nærmere, om der har foreligget unødig magtanvendelse (§
57).
Domstolen finder undersøgelsesorganet tilstrækkeligt
uafhængigt, idet undersøgelsen ikke blev udført af
politifolk fra den politistation, hvor de indklagede
betjente gjorde tjeneste (§ 58).
EMD fandt det kritisabelt, at politiet ikke kunne
redegøre for hver enkelt af de manglende skud fra
betjentens skydevåben (§ 59).
EMD kritiserede selve bevisbedømmelsen. Der var ikke
anvendt samme standarder ved bedømmelsen af
politifolkenes og af de civiles forskellige forklaringer
om, hvad der var foregået. EMD kritiserede blandt andet,
at de nationale myndigheder havde lagt vægt på, at de
civiles forklaringer var et led i en taktik i forhold
til den ventende straffesag mod dem. EMD fandt, at
politifolkene kunne have en tilsvarende interesse i
forhold til en mulig disciplinærsag mod dem. (§ 60).
EMD lagde også vægt på, at ingen af anklagerne havde
afhørt de implicerede vidner personligt, inden de opgav
sagen (§ 62).
Artikel 3 anses som krænket som følgen af den
utilstrækkelige efterforskning (§ 63).
Klageren fik tilkendt 3.500 EUR i ikke-økonomisk skade.
Afgørelsen i fuld tekst:
FIRST SECTION
CASE OF ZELILOF v. GREECE
(Application no. 17060/03)
JUDGMENT
STRASBOURG
24 May 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 Zelilof 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 K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar
Having deliberated in private on 3 May 2007,
Delivers the following judgment, which was adopted on
that date:
PROCEDURE
1. The case originated in an application (no. 17060/03)
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, Mr Dimitrios Zelilof (“the
applicant”), on 20 May 2003.
2. The applicant was represented by the Greek Helsinki
Monitor, a member of the International Helsinki
Federation. The Greek Government (“the Government”) were
represented by their Agent, Mr I. Halkias, Adviser at
the State Legal Council and Mr I. Bakopoulos, Legal
Assistant at the State Legal Council.
3. The applicant alleged, in particular, that he 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. He further alleged that the
impugned events had been motivated by racial prejudice,
in breach of Article 14 of the Convention.
4. On 16 September 2005 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
5. The applicant is a Greek citizen of Russian-Pontic
origin who was born in 1978 and lives in Salonika.
I. THE CIRCUMSTANCES OF THE CASE
A. Outline of the events
6. On 23 December 2001, at approximately 10.15 p.m., the
applicant was walking towards a cafeteria in Ano Toumba,
a district of Salonika, when he saw a police patrol
carrying out an identity check on the passengers of a
car. The applicant, who knew the passengers, proceeded
to ask one of them, Mr Giorgos Kalaitsidis, what was
going on.
i. The applicant's version
7. The applicant submitted that a police officer, who
was subsequently identified as Police Sergeant Apostolos
Apostolidis, flashed his torch on him and asked him to
identify himself. The applicant replied that he wanted
to know whether his friend had a problem. The applicant
was then asked by another police officer, later
identified as Police Constable Zaharias Tsiorakis, to
produce his identity card. The applicant replied that he
did not have his identity card with him and suggested
that they all go to the nearby police station for an
identity check, as his identity card had been issued
there. Then, allegedly, one of the police officers asked
him whether he was “being the tough guy”. The applicant
submitted that, seconds later, Tsiorakis wrapped his
handcuffs around his fist and then punched him in the
mouth. The applicant alleged that this made him feel
dizzy and that, as he was falling down, Tsiorakis kicked
him twice in the chest and abdomen.
8. The applicant asserted that he managed to leave the
scene when another acquaintance of his, Dimitrios
Kalaitsidis, headed towards the police officers, asking
them to stop beating the applicant on the head as the
latter was suffering from a head problem. The applicant
contended that by that time he had heard three to four
gunshots being fired. According to the testimony of
Police Officer Apostolidis, the latter fired three
warning shots in the air “in a safe way” with the
intention of intimidating the applicant as he was
escaping from the scene. The applicant then proceeded to
the nearby police station, located at a distance of
approximately forty metres from where the incident had
taken place. On his arrival there, he complained to two
policemen about his ill-treatment. The two police
officers seized him and dragged him inside the police
station. They then handcuffed him and started beating
and kicking him in various parts of his body. The
applicant asserted that the police officers who had
carried out the initial road check were among those
ill-treating him. According to the applicant, this went
on for approximately thirty minutes, until the officers
realised that a high-ranking officer was coming. Upon
hearing this, a police officer grabbed a dirty mop and
wiped the blood off the floor and the applicant's face,
repeatedly uttering the word “drop dead” (ψόφος).
9. The applicant passed out and was transferred by
ambulance to Aghios Dimitrios Hospital in Salonika,
where he remained until 28 December 2001.
10. Four other individuals of Kazakh origin,
acquaintances of Mr Zelilof, who were also involved in
the event, were arrested that night and taken to the
police station where the applicant was detained. Among
them, Dimitrios and Charalambos Kalaitsidis were charged
with assaulting police officers. In their defence
pleadings, dated 23 January and 2 April 2002, they
stated that they had been the victims of a
discriminatory attitude due to their ethnic origin. In
particular, Dimitrios Kalatsidis stated that while being
transferred and once inside the police station the
police officers had repeatedly shouted at him “F...
Russia, you are mafia, you come over here and you think
you are tough, you bastards, if you don't leave town or
if we see you again in the cafeteria, we will f... you,
f... your Christ and Virgin Mary”. Charalambos
Kalaitsidis stated that police officers had shouted at
him while he had been inside Toumba police station: “You
dirty Russians, you will never work again in your lives,
you fuckers, you bastards. I f... your mothers”.
ii. The Government's version
11. The Government maintained that the identity check on
the passengers of the car had been almost complete when
the applicant, who was passing by, headed towards the
police officers. The police officers initially warned
him not to come close to the car so as to be able to
complete the check unobstructed and not expose the
passengers to public view.
12. Despite their initial warning the three police
officers were ignored by the applicant, who approached
the car and started talking to the passengers. Police
Officer Apostolidis asked the applicant to identify
himself. The latter refused to obey and shoved the
police officer abruptly with his arm. Apostolidis fell
to the ground after being hit in the face by the
applicant. Officers Hamopoulos and Tsiorakis ran to
their colleague's assistance and tried to handcuff the
applicant. The latter resisted strongly by punching and
kicking the above-mentioned officers.
13. In the meantime Dimitrios and Lazaros Kalaitsidis
had appeared from a nearby café and got involved in the
argument between the applicant and the three police
officers. While the police officers were trying to
handcuff the applicant and arrest him, Dimitrios and
Lazaros Kalaitsidis violently shoved the police officers
with their arms and struck them with their arms and
legs. By doing so, they managed to prevent them
arresting the applicant, who fled from the scene.
Apostolidis fired a shot in the air in order to scare
his assailants away.
14. Due to the fact that the incident had been taking
place close to Toumba police station, as soon as Officer
Apostolidis had fired the shot, another group of police
officers ran to their assistance. A number of persons
who had either actively participated in or just observed
the incident ran away into the café. Charalambos and
Dimitrios Kalaitsidis and Panagiotis Galotskin were
arrested and driven to Toumba police station. The
applicant was arrested later the same day. He was also
taken to Toumba police station, where he was charged
with resisting lawful authority, releasing a prisoner
and causing unprovoked bodily injury. He was kept at the
police station just the time strictly necessary for the
preparation of the case file and then taken to hospital.
Neither he nor his acquaintances were ever abused by
police officers while at the police station.
B. Medical reports
1. With regard to the applicant
15. According to the hospitalisation information note
issued by the hospital on 2 January 2002, the applicant
bore contusions on his thorax and breast bone and a
contusion on his left cheek bone, and had an
infraorbital haematoma in both eyes. The applicant also
had wounds on his head and back that required stitching.
He was diagnosed as suffering from “head and thorax
injury, and slight brain concussion”. The note also
stated that the applicant was admitted to the hospital
on 24 December 2002 and discharged on 28 December 2002.
16. On 29 January 2002 the applicant was summoned by the
prosecutor's office to undergo a medical examination by
a forensic doctor. According to the prosecutor's order,
the Forensic Department was asked to send the forensic
report to the prosecutor's office at the earliest
opportunity.
17. According to the forensic expert's medical
examination, dated 29 January 2002, the applicant bore a
contusion in the chest area, a wound on the part of the
head covered with hair, an intumescence and an
ecchymosis on his left cheek bone. He also had an
infraorbital haematoma in both eyes. The dental
examination revealed that the applicant's crown on his
lower left canine tooth was fractured and that part of
his jaw was dislocated. The forensic expert found that
“... Zelilof suffer[ed] from a medium-intensity bodily
injury, caused by blunt instruments, and – barring any
unforeseen complication – [would] probably recover
within 18-21 [days].”
2. With regard to the police officers
18. According to the hospitalisation information note
issued by the hospital on 24 December 2001, Hamopoulos
was diagnosed with “a bruise on his left tibia”;
Apostolidis bore “heavy bruises on the outer part of
both his hands; and Tsiorakis bore “heavy bruises on the
fingers of his right hand and his right wrist”. The
hospitalisation note stated that the police officers
were admitted to the hospital on 23 December 2002 and
discharged on 24 December 2002.
19. Police Officers Hamopoulos, Apostolidis and
Tsiorakis were not subjected to a medical examination by
a forensic doctor.
C. The administrative investigation
20. On 8 January 2002 Salonika police headquarters
ordered an administrative investigation in order to
ascertain the exact circumstances in which the three
police officers had been injured and whether they were
liable for any disciplinary offence. The administrative
investigation was assigned to an officer serving at the
police's sub-directorate of administrative
investigations. As part of the investigation the
investigating police officer summoned as witnesses the
three police officers who had been involved in the
incident. The various witness statements available were
studied but no further inquiry was conducted regarding
the gunshots fired or the general legitimacy of the
initial identity check. It was observed in the report of
the administrative investigation issued on 9 August 2002
that “persons involved in the incident refused to comply
with the police officers' orders and, furthermore, one
of them [Zelilof] had intended to “control” the police
officers who were performing the identity check,
considering arbitrarily and cheekily that he had an
inexistent right .... Taking into account also the
unprovoked, violent and disproportionate assault by
other individuals on the police officers, it is
concluded that the police officers properly assessed the
relevant circumstances and acted correctly. The brawl
between the police officers and the individuals in
question was inevitable. The police officers used
necessary physical force against the civilians, mainly
in order to defend their physical integrity that was
under imminent threat. There was a clear danger that the
police officers' firearms would be snatched by the
individuals concerned in the context of a
disproportionate assault by ten to fifteen of them on
the police officers. Thus, apart from the injuries
inflicted on the police officers, which could easily
have been more serious, there was an imminent danger
that firearms would be used by civilians in an extreme
way (fatal shooting of the police officers, etc.)”.
21. As regards the alleged ill-treatment on the premises
of the police station, the report observed, among other
things, that “the violent behaviour of the police
officers transpired from the testimonies of the persons
who had provoked the illegal acts. Even if these
testimonies could not be rejected as such, their
accuracy and objectivity could not be taken for granted.
Testimonies such as those made by Kalaitsidis and
Kampanakis – cousin and friend respectively of the
accused – undoubtedly concern personal opinions and
assessments that will be of assistance to the accused
during the trial. ... Not all the testimonies have been
proven; on the contrary, the police officers (involved
in the events) have denied them. The latter insisted in
their testimonies that there was no violence in the
police station and that all the injuries sustained by
the civilians were provoked before their transfer to the
police station”. It continued as follows: “At this point
reference should be made to the allegations of
individuals concerning unprovoked ill-treatment
inflicted by 'mean' police officers against those who
just 'happened' to be there or were unrelated to the
incident. These [testimonies] could not be taken
seriously, nor could they be considered objective. On
the contrary, they had to be considered as defence
tactics by their friends/acquaintances, who faced
serious criminal charges and whose depositions aim to
cast the police officers in a bad light”.
22. Finally, the report noted that both the applicant
and the police officers had failed to submit to an
examination by the forensic doctor. It stated that “As
they failed to undergo the forensic exam (not one of the
victims went to the forensic doctor to be examined), the
seriousness of the injuries inflicted on the individuals
cannot be accurately assessed. This fact shows an
intention to prevent the disclosure of new evidence that
would have facilitated the investigation of the case.
... The same considerations could be applied to the
police officers. According to the investigating police
officer, this omission was due to negligence on the part
of the police officers. ... The disciplinary liability
that derived from that omission was obvious in the
present case, but was of minor importance in the context
of the case as a whole. Thus, no such intention could be
attributed to the police officers”.
23. The report did not make any reference to the
applicant's forensic medical examination of 29 January
2002.
D. Criminal proceedings against the applicant and the
police officers
1. Criminal proceedings against the applicant
24. On 24 December 2001 charges were brought against the
applicant for resisting arrest, assaulting a police
officer and causing grievous bodily harm. On 13 January
2004 the applicant appeared before the investigating
judge in order to testify with regard to the charges
against him. The applicant contended that Police Officer
Apostolidis had submitted his criminal record to the
investigating judge in order to establish his “criminal
and socially deviant character”. Apostolidis contended
that the files relating to the applicant's criminal
record had been compiled by the police department in
which he served. The applicant contended that the
information about his criminal record as submitted by
Apostolidis was inaccurate and not up to date.
25. On 14 January 2004 the investigating judge granted
the applicant bail for 587 euros.
26. On 14 January 2005 the Salonika Court of First
Instance sentenced the applicant to fourteen months'
imprisonment under Article 167 § 1 of the Greek Criminal
Code for resisting lawful authority. The first-instance
court established that Police Officer Apostolidis had
asked the applicant to identify himself and that the
latter had refused to obey and had shoved him violently
with his arm and then violently pushed Officers
Hamopoulos and Tsiorakis with his arms and feet. It
further considered that Police Officers Apostolidis,
Hamopoulos and Tsiorakis had been assaulted by Dimitrios
and Lazaros Kalaitsidis, who had appeared from a nearby
café in the meantime and tried to help the applicant
escape. The court accepted that the three police
officers had feared for their physical integrity as a
group of almost fifteen persons had hindered them,
either physically or verbally, in their task of carrying
out a normal police control. Finally, the court did not
accept that the aggravating circumstances described in
Article 167 § 2 of the Greek Criminal Code could be
applied in the applicant's case (judgment no. 683/2005).
27. The case is currently pending before the domestic
courts.
2. Criminal proceedings against the police officers
involved in the incident
28. On 14 January 2002 the applicant lodged a criminal
complaint with the Salonika Public Prosecutor's Office.
The complaint was lodged against the police officers who
had been involved in the incident described above and
concerned the alleged ill-treatment both during the
course of his arrest and during his detention on 23
December 2001. The applicant further complained that he
had not been given time to apply to Salonika General
Police Directorate for a copy of the police officers'
criminal and disciplinary records, whereas Police
Officer Apostolidis had been able to submit the
applicant's criminal record to the investigating judge
in order to establish his “criminal and socially deviant
character”.
29. On 2 July 2002 the Prosecutor at the Salonika Court
of First Instance dismissed the applicant's criminal
complaint as “factually unfounded”. The prosecutor
endorsed the conclusions reached in the administrative
investigation on the basis of the depositions of the
police officers. No witnesses were questioned personally
by the prosecutor. Furthermore, the prosecutor contended
that Police Officer Apostolidis had not acted improperly
in submitting the applicant's criminal record to the
investigating judge. He concluded that the investigating
judge had legitimately taken those documents into
account (decision no. 30/2002).
30. On 16 October 2002 the applicant lodged an appeal
with the Prosecutor at the Salonika Court of Appeal. On
16 November 2002 his appeal was declared inadmissible
(decision no. 240/2002).
31. On 22 November 2002 the applicant lodged a fresh
appeal with the Prosecutor at the Salonika Court of
Appeal. On 29 November 2002 his appeal was dismissed as
“factually unfounded” again. In particular, the
prosecutor confirmed the conclusions of decision no
30/2002 without personally questioning the witnesses.
The applicant's allegations of ill-treatment were
considered to be false and the prosecutor concluded that
there was no need to launch an in-depth judicial
investigation into the incident. Lastly, the prosecutor
confirmed the conclusions of the Prosecutor at the Court
of First Instance as to the admissibility of the files
which had been compiled by Police Officer Apostolidis
from the applicant's criminal record and submitted to
the investigating judge (decision no. 246/2002).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law
32. Article 167 of the Greek Criminal Code provides in
so far as relevant:
“Resistance
1. Anyone who uses or threatens to use force for the
purpose of obliging an authority or a civil servant to
carry out an act within their competence or to refrain
from carrying out a legal act, and anyone who uses
physical force against a civil servant ... shall be
punished by a term of imprisonment of at least three
months.
2. Where the punishable acts cited above occur as a
result of using a weapon or an object that may provoke
bodily injury ... or the person who is the subject of
the attack is seriously endangered, the perpetrator
shall be punished by a term of imprisonment of at least
two years ....”
B. Relevant report
33. The Greek Ombudsman issued a report on 12 October
2004 entitled “Disciplinary-administrative
investigations into allegations against police
officers”. It stated in relation to the use of medical
certificates by the police:
“This is a major issue mainly in cases that are routine
and do not contain any reference to the effect that the
existing medical certificates were taken into
consideration when deciding on the issue of disciplinary
punishment and do not provide an adequate explanation
for the conclusions of the administrative investigation,
especially in cases where, for example, the nature of
the bodily injuries attested to by the medical
certificates, would clearly warrant a more careful
examination. For instance, reference is made to [a case
where] the Ombudsman's Office noted that the extent of
bodily injuries, as borne out by the medical
certificates assessed by the police in a routine manner,
indicated that either the police officers involved had
exceeded the limits of self-defence or that [the police
officers] had breached Article 137A of the Greek
Criminal Code [Torture]. As a consequence, the Greek
Police should have assessed the evidence before it in a
more careful and substantiated way. Due to the merely
routine assessment of evidence, the validity of any
ensuing judgment of police disciplinary bodies is
justifiably rendered vulnerable and susceptible to all
kinds of criticism.
In cases like the one mentioned above, suspicions
naturally arise as to the perfunctory assessment of the
available evidence. Because of the routine assessment of
evidence, the validity of every decision of the police
disciplinary bodies becomes somewhat vulnerable and
susceptible to all kinds of criticism if [the decision]
disregards the precepts of legal science and all the
methods it employs in establishing the actual facts of a
case”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
34. The applicant complained that Police Officer
Apostolidis had used a weapon during the course of his
arrest. He also complained, under the same provision,
that the investigative and prosecuting authorities had
failed to launch a prompt, comprehensive and effective
official investigation into the legitimacy of the use of
force by Police Officer Apostolidis. He argued that
there had been a breach of Article 2 of the Convention,
which provides:
“1. Everyone's right to life shall be protected by law.
No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it
results from the use of force which is no more than
absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling
a riot or insurrection.”
Admissibility
35. The Court reiterates that use of lethal force by
State agents against a person is not a conditio sine qua
non for the application of Article 2 of the Convention.
In fact, this provision also applies when the use of
force by State agents is potentially lethal, that is,
when the fact that the victim was not killed is
fortuitous (see Makaratzis v. Greece [GC], no. 50385/99,
§§ 52 and 54, ECHR 2004-XI).
36. In the present case it is not disputed by the
parties that Police Officer Apostolidis fired three or
four warning shots into the air “in a safe way” with the
intention of intimidating the applicant as he was
escaping from the scene where the incident had taken
place. In the light of the above, the Court observes,
firstly, that the use of armed force by Police Officer
Apostolidis did not result in deprivation of life, even
as an unintended outcome. Furthermore, the use of armed
force by the latter was not even potentially lethal as
he shot in the air “in a safe way” with the sole
intention of intimidating the applicant.
37. Accordingly, it follows that this complaint must be
rejected as incompatible ratione materiae with the
provisions of the Convention pursuant to Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
38. The applicant complained that during his arrest and
subsequent detention he was subjected to acts of police
brutality which caused him great physical and mental
suffering amounting to torture, inhuman and/or degrading
treatment or punishment, in breach of Article 3 of the
Convention. He also complained that the investigative
and prosecuting authorities failed to proceed with a
prompt and effective official investigation into the
incident capable of leading to the identification and
punishment of the police officers responsible. The
applicant therefore claimed that, contrary to Article 3,
taken together with Article 13 of the Convention, he had
had no effective domestic remedy for the harm suffered
while in police custody.
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
39. 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
40. The applicant submitted that his serious injuries
were the result of the unnecessary and disproportionate
use of force by the police officers involved in the
incident. He also complained about the failure of
investigating and prosecuting authorities to proceed
with a prompt, comprehensive and effective official
investigation capable of leading to the identification
and punishment of the police officers responsible.
41. The Government pointed out that the police officers
had been trying to effect a lawful arrest and had been
prevented from doing so by the resistance displayed by
the applicant and by the actions of a group of other
young men who had been eager to assist the applicant in
his attempt to run away and avoid arrest. They submitted
that the injuries to some parts of the applicant's body
had been the result of wrestling with Police Officers
Apostolidis, Tsiorakis and Hamopoulos beforehand.
According to the Government, the police officers had
acted in self-defence when faced with an unfair and
unprovoked attack. The Government also relied on the
conclusions of all the competent prosecuting authorities,
who considered that the injuries caused to the applicant
were not severe and had been necessary in order to
protect the police officers' physical integrity. As
regards the effectiveness of the investigation and the
judicial proceedings, the Government argued that the
investigation into the incident had been prompt,
independent and thorough and that twenty-eight witnesses
had testified. Criminal charges had also been brought
against the police officers involved in the incident.
The fact that the applicant's criminal complaint had
finally been rejected as “factually unfounded” had no
bearing on the effectiveness of the investigation.
2. The Court's assessment
a. Concerning the alleged ill-treatment
i. General principles
42. 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 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 Chahal v. the United Kingdom, judgment of
15 November 1996, Reports 1996-V, p. 1855, § 79).
43. Furthermore, the Court reiterates that in respect of
a person deprived of his liberty, recourse to physical
force which has not been made strictly necessary by his
own conduct diminishes human dignity and is in principle
an infringement of the right set forth in Article 3 (see
Ribitsch v. Austria, judgment of 4 December 1995, Series
A no. 336, p. 26, § 38, and Krastanov v. Bulgaria, no.
50222/99, § 53, 30 September 2004).
44. 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).
45. Where domestic proceedings have taken place, it is
not the Court's task to substitute its own assessment of
the facts for that of the domestic courts and, as a
general rule, it is for those courts to assess the
evidence before them (see Klaas v. Germany, judgment of
22 September 1993, Series A no. 269, p. 17, § 29).
Although the Court is not bound by the findings of
domestic courts, in normal circumstances it requires
cogent elements to lead it to depart from the findings
of fact reached by those courts (see Matko v. Slovenia,
no. 43393/98, § 100, 2 November 2006). Where allegations
are made under Articles 2 and 3 of the Convention,
however, the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch, cited above,
p. 24, § 32).
ii. Application of those principles to the present case
46. It is undisputed that the applicant's injuries, as
shown by the medical reports, were caused by the use of
force by the police. In particular, the forensic expert
concluded that he had sustained medium-intensity bodily
injury, caused by blunt instruments, and that, barring
any unforeseen complication, he would recover within
eighteen to twenty-one days.
47. Against this background, given the serious nature of
the applicant's injuries, the burden rests on the
Government to demonstrate with convincing arguments that
the use of force was not excessive.
48. From the outset, the Court cannot ignore that the
applicant was injured in the course of a random
operation which gave rise to unexpected developments.
Thus, the police officers were called upon to react
without prior preparation (see, a contrario, Matko v.
Slovenia, cited above, § 102, and Rehbock v. Slovenia,
no. 29462/95, § 72, ECHR 2000-XII). Bearing in mind the
difficulties in policing modern societies, the
unpredictability of human conduct and the operational
choices which must be made in terms of priorities and
resources, the positive obligation must be interpreted
in a way which does not impose an impossible burden on
the authorities (see, mutatis mutandis, Mahmut Kaya v.
Turkey, no. 22535/93, § 86, ECHR 2000-III).
49. Furthermore, the Court observes that the parties
have given a different account of the incident,
especially as regards how both the applicant and the
police officers sustained injuries. For this reason, the
Court will set out the factual circumstances of the
incident as they are related in judgment no. 683/2005 of
the Salonika Court of First Instance. In that connection
the Court notes that the latter established that the
applicant had physically resisted his arrest. In
particular, he had refused to comply with Officer
Apostilidis's request to identify himself and had
instead shoved him violently with his arm and
subsequently violently pushed Officers Hamopoulos and
Tsiorakis with his arms and feet. Nevertheless, the
domestic court stated that the three police officers had
in fact been assaulted by the applicant's acquaintances,
who had run out of a nearby café and tried to help the
applicant escape from the scene.
50. It can be seen from the above facts thus established
that the applicant's involvement in the event was
limited up to this point as the injuries were inflicted
on the police officers by a group of ten to fifteen
youths who had run to the scene. The Court acknowledges
that the three police officers must have felt insecure
and vulnerable as they were suddenly outnumbered by a
group of persons assaulting them verbally and physically.
In the Court's view, this is an important factor that
could justify the firing of gunshots by Police Officer
Apostolidis in order to intimidate them. However, the
Court considers that acts of self-defence against the
persons who ran out from the café could not, in the
specific circumstances of the case, also justify the
infliction of serious injuries on the applicant, who, by
that time, was not the one threatening the physical
integrity of the police officers. The Court considers
that weight should be given in this respect to the
significant difference in extent of the applicant's and
the police officers' injuries: according to the medical
reports and certificates, the former was hospitalized
for five days and was expected to convalesce for
eighteen to twenty-one days, whereas the three police
officers, allegedly assaulted by a mob of ten to fifteen
people, were admitted to hospital late on 23 February
and were discharged the next day.
51. Consequently, regard being had to the applicant's
allegations, which were corroborated by the medical
reports, and to the circumstances in which the applicant
sustained the injuries, the Court considers that the
Government have not furnished convincing or credible
arguments which would provide a basis to explain or
justify the degree of force used against the applicant.
52. The Court therefore concludes that the State is
responsible under Article 3 on account of the inhuman
and degrading treatment to which the applicant was
subjected while in the police's charge and that there
has been a violation of this provision.
53. Having reached that conclusion, and since the Court
is not able to establish the facts as regards the
conduct of the police officers inside Toumba police
station as it is confronted with completely divergent
accounts of the events that are not corroborated by a
judicial decision, it does not consider it necessary to
examine the applicant's allegations in that respect (see,
mutatis mutandis, Matko v. Slovenia, cited above, §
112).
b. Concerning the alleged inadequacy of the
investigation
i. General principles
54. 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).
55. 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).
56. The investigation into arguable allegations of
ill-treatment must also be thorough. This means that the
authorities must always make a serious attempt 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).
ii. Application of those principles to the present case
57. 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 his injuries might
have been caused by excessive use of force. As such, his
complaints constituted an arguable claim in respect of
which the Greek authorities were under an obligation to
conduct an effective investigation.
58. As regards the present case, the Court observes that
both an administrative inquiry and judicial proceedings
were launched after the impugned events. As far as the
administrative investigation is concerned, the Court
notes, firstly, that it was entrusted to the special
agency of the police dealing with disciplinary
investigations and not assigned to a police officer
serving in the same police station as the persons
subjected to the disciplinary investigation. The Court
acknowledges that this is an element that reinforces the
independence of the inquiry, as the agent conducting it
was, in principle, independent of those involved in the
events.
59. However, with regard to the thoroughness of the
investigation, the Court notes some discrepancies
capable of undermining its reliability and effectiveness.
Firstly, the administrative investigation did not deal
with the issue of how many shots Police Officer
Apostolidis had fired. Accordingly, the administrative
inquiry does not show that each bullet missing from the
police officer's firearm was in fact accounted for.
60. Secondly, the Court observes a selective and
somewhat inconsistent approach to the assessment of
evidence by the investigating authority. In particular,
the Court notes that the Government claimed that
twenty-eight witnesses were examined during the
investigation. Nonetheless, the Court observes that the
administrative inquiry included excerpts from the
testimonies given mainly by the applicant, two of his
acquaintances present at the scene and some other
individuals accused of assaulting the police officers.
It is also apparent from the relevant report that the
agent based his conclusions mainly on the testimonies
given by the police officers involved in the incident.
He thus observed, initially, that the violent behaviour
transpired from the testimonies of the persons who had
provoked the illegal acts. However, he did not consider
these testimonies to be credible for two reasons:
firstly, because they undoubtedly reflected personal
opinions and assessments that would be of assistance to
the accused during the trial; and secondly, because they
could be considered as constituting defence tactics by
the applicant's acquaintances, who were already facing
grave criminal charges and whose depositions aimed to
damage the credibility of the police officers. However,
the administrative inquiry did accept as such the
credibility of the police officers' testimonies by
considering that “not all the testimonies have been
proven; on the contrary, the police officers (involved
in the events) have denied them. The latter insisted in
their testimonies that there had been no violence in the
police station and that all the injuries sustained by
the civilians had been provoked before their transfer to
the police station”. In the Court's view, the
administrative inquiry applied different standards when
assessing the testimonies as those given by the
civilians involved in the events were recognised as
subjective but not those given by the police officers.
However, the credibility of the latter testimonies
should also have been questioned as the administrative
proceedings had also sought to establish whether they
were liable on disciplinary grounds (see Ognyanova and
Choban v. Bulgaria, no. 46317/99, § 99, 23 February
2006).
61. Furthermore, the investigating authority omitted to
take into account the report on the forensic medical
examination that the applicant underwent on 29 January
2002. On the contrary, when assessing the evidence with
regard to the medical certificates, the administrative
inquiry observed that both the applicant and the police
officers had omitted to undergo a medical examination by
a forensic doctor. However, it drew a negative
conclusion only in respect of the applicant as it
accepted that this omission revealed the latter's
intention to prevent the disclosure of new evidence
facilitating the investigation of the case. As far as
the police officers were concerned, it was accepted that
“the disciplinary liability that derived from that
omission was obvious in the present case but was of
minor importance in the context of the case as a whole”.
62. Finally, as regards the judicial proceedings
instituted after the applicant had lodged his criminal
complaint against the police officers, the Court
observes firstly that the judicial investigation was not
launched ex officio by the competent authorities but
only after the applicant had lodged a criminal complaint.
Secondly, the prosecuting authorities concluded that the
applicant's allegations were “factually unfounded” by
endorsing the testimonies given in the context of the
judicial investigation carried out by the police.
Neither the Prosecutor at the Court of First Instance
nor the Prosecutor at the Court of Appeal questioned
personally the eyewitnesses mentioned in the report of
the administrative investigation or the applicant and
the police officers, who were, nevertheless, the
protagonists in the incident (see Osman v. Bulgaria, no.
43233/98, § 75, 16 February 2006). In fact, the Court
notes that both prosecutors relied heavily on the police
officers' depositions and discredited the eyewitness
evidence and the results of the applicant's forensic
examination (see, mutatis mutandis, Ergi v. Turkey,
judgment of 28 July 1998, Reports 1998-IV, p. 1778, §
83).
63. In the light of the above-mentioned shortcomings in
the administrative and judicial investigation, the Court
concludes that they were not sufficiently effective. The
Court accordingly 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.
64. 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.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
65. The applicant complained that Police Officer
Apostolidis had submitted inaccurate information from
his criminal record to the investigating judge in the
context of the criminal complaint lodged against him.
The applicant asserted that the submission of these
documents by Police Officer Apostolidis, ostensibly
proving his “criminal and socially deviant character”,
could have had an impact on the investigating judge's
decision to impose a bail requirement on him. He
contended, in particular, that the submission of these
documents violated the “equality of arms” principle as
he had been unable to obtain a copy of the police
officer's criminal or disciplinary records, as these
were confidential. He argued that there had been a
breach of Article 6 § 1 of the Convention, the relevant
part of which reads as follows:
“In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Admissibility
66. The Court's task under the Convention is to
ascertain whether the proceedings as a whole, including
the way in which evidence was taken, were fair (see Van
Mechelen and Others v. the Netherlands, judgment of 23
April 1997, Reports 1997-III, p. 711, § 50). The Court
observes that, as can be seen from the file, the
proceedings instituted against the applicant are still
pending. Hence, this complaint is premature.
67. It follows that this complaint is inadmissible under
Article 35 § 1 for non-exhaustion of domestic remedies.
It must therefore be rejected pursuant to Article 35 § 4
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 3 OF THE CONVENTION
68. The applicant further complained that the
ill-treatment he had suffered, together with the
subsequent lack of an effective investigation into the
incident, was at least partly attributable to his ethnic
origin. He 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.”
Admissibility
1. The submissions of the parties
69. The applicant 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 did not
have to be interpreted as requiring such a high degree
of probability as in criminal trials. He affirmed that
the burden of proof had to shift to the respondent
Government when the claimant established a prima facie
case of discrimination. Moreover, the applicant asserted
that, under Greek law, there was no obligation incumbent
upon either judicial officials or police officers to
examine the potentially racist animus of a perpetrator,
nor were they trained to do so.
70. Turning to the facts of the instant case, the
applicant referred to the defence pleadings of Dimitrios
and Charalambos Kalaitsidis, who stated that various
police officers had shouted racist abuse while taking
them to the police station and once inside it.
71. 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. They
firmly denied that the applicant 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 had not been
racially motivated but had been linked to the fact that
the applicants had previously committed an offence.
2. The Court's assessment
72. Discrimination is differently treating, 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, 6 July
2005).
73. Regarding the applicant's complaint under 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.
74. The Court reiterates that in assessing evidence it
has adopted the standard of proof “beyond reasonable
doubt”; 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,
cited above, § 157).
75. Therefore, turning to the facts of the present case,
the Court considers that whilst the police officers'
conduct during the applicant's arrest calls for serious
criticism, that behaviour is not of itself a sufficient
basis for concluding that the treatment inflicted on the
applicant by the police was racially motivated. Further,
in so far as the applicant has relied on the defence
pleadings of Dimitrios and Charalambos Kalaitsidis
concerning their own conditions of transfer and stay at
Toumba police station, 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
applicant was motivated by racism (see Nachova and
Others, cited above, § 155).
76. Hence, 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 applicant's treatment by the police.
77. Accordingly, it follows that this complaint must be
rejected as manifestly ill-founded pursuant to Article
35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
78. 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
1. Pecuniary damage
79. The applicant claimed 1,400 euros (EUR) for the cost
of orthodontic surgery that he has to undergo in order
to have his two teeth mended. He submitted a medical
certificate from an orthodontic surgeon in Salonika
according to which the cost of the medical operation is
estimated at the same amount.
80. The Government argued that the medical certificate
submitted by the applicant had not duly proved the
existence of pecuniary damage and that his claim on this
point should be dismissed.
81. The Court notes that there must be a clear causal
connection between the damage claimed by the applicant
and the violation of the Convention (see Mikheyev v.
Russia, no. 77617/01, § 156, 26 January 2006). In the
instant case, the Court has found that the applicant was
subjected to inhuman and degrading treatment while in
the police's charge. The authorities are thus
responsible for the consequences ensuing from the
incident on 23 December 2001. Consequently, there is a
causal link between the violation found and the
necessity for the applicant to undergo medical surgery
to mend the teeth that were damaged during the impugned
incident between the applicant and the police officers.
Furthermore, the Court notes that the applicant's claim
as regards the cost of his medical treatment is based on
a certificate delivered by an orthodontic surgeon that
is considered as a sufficient basis for the calculation
of future expenses. Thus, the Court awards in full the
claim under this head, that is, EUR 1,400, plus any tax
that may be chargeable on this amount.
2. Non-pecuniary damage
82. The applicant claimed EUR 20,000 in respect of the
fear, pain and injury he suffered.
83. The Government argued that the applicant was himself
responsible for the injuries he had sustained and that,
consequently, no compensation should be awarded to him
for non-pecuniary damage.
84. The Court considers that the applicant has
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
15,000 under this head, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
85. The applicant sought reimbursement of EUR 6,405.19,
which he broke down as follows:
(a) EUR 3,389.12 in respect of costs and expenses
incurred in the criminal proceedings in Greece. In
support of his claim the applicant produced seven bills
of costs, amounting to EUR 1,373.82 in total.
(b) EUR 3,016.07 corresponding to the costs and expenses
incurred in the proceedings before the Court. In this
connection he submitted a bill of costs drawn up by his
lawyer for an amount of EUR 2,500.
86. According to the Court's established case-law, costs
and expenses will not be awarded under Article 41 unless
it is established that they were actually incurred, were
necessarily incurred and were also reasonable as to
quantum (see Iatridis v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000-XI).
87. In the present case, having regard to the evidence
before it and the above-mentioned criteria, the Court
considers it reasonable to award the sum of EUR 3,500
for the proceedings before the domestic courts and the
Court, plus any tax that may be chargeable on that
amount.
C. Default interest
88. 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. Declares the complaints concerning Articles 3 and 13
of the Convention admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article 3 of
the Convention in respect of the treatment suffered by
the applicant at the hands of the police;
3. 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;
4. Holds that there is no need to examine separately the
complaint under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay to the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 1,400 (one thousand and four hundred
euros) in respect of pecuniary damage, EUR 15,000 (fifteen
thousand euros) in respect of non-pecuniary damage and
EUR 3,500 (three thousand and five hundred euros) in
respect of costs and expenses, plus any tax that may be
chargeable on the above amounts;
(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;
6. Dismisses the remainder of the applicant's claim for
just satisfaction.
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