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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
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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.
- 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).
- The
applicant passed out and was transferred by ambulance to Aghios
Dimitrios Hospital in Salonika, where he remained until 28 December
2001.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- Police
Officers Hamopoulos, Apostolidis and Tsiorakis were not subjected to
a medical examination by a forensic doctor.
C. The administrative investigation
- 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.)”.
- 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”.
- 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”.
- 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
- 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.
- On
14 January 2004 the investigating judge granted the applicant bail
for 587 euros.
- 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).
- The
case is currently pending before the domestic courts.
2. Criminal proceedings against the police officers
involved in the incident
- 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”.
- 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).
- 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).
- 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
- 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
- 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
- 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
- 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).
- 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.
- 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
- 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant 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
- 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).
- 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).
- 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).
- 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
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by the police in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention, requires by
implication that there should be an effective official investigation.
As with an investigation under Article 2, such investigation
should be capable of leading to the identification and punishment of
those responsible. Otherwise, the general legal prohibition of
torture and inhuman and degrading treatment and punishment would,
despite its fundamental importance, be ineffective in practice and it
would be possible in some cases for agents of the State to abuse the
rights of those within their control with virtual impunity (see
Assenov and Others v. Bulgaria, cited
above p. 3290, § 102, and Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV).
- The
investigation must be effective as well in the sense that it is
capable of leading to a determination of whether the force used by
the police was or was not justified in the circumstances (see Kaya
v. Turkey, judgment of 19 February 1998, Reports
1998-I, § 87, and Corsacov v. Moldova, no. 18944/02,
§ 69, 4 April 2006).
- The
investigation into arguable allegations of ill-treatment must also be
thorough. This means that the authorities must 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
- 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.
- 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.
- 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.
- 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).
- 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”.
- 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).
- 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.
- 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
- 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
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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).
- 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.
- 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).
- 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).
- 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.
- 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
- 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
- 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.
- 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.
- 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
- The
applicant claimed EUR 20,000 in respect of the fear, pain and injury
he suffered.
- 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.
- 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
- 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.
- 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).
- 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
- 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
- Declares the complaints concerning Articles 3
and 13 of the Convention admissible and the remainder of the
application inadmissible;
- 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;
- 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;
- Holds that there is no need to examine
separately the complaint under Article 13 of the Convention;
- 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 May 2007 pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr
Loucaides joined by Mr Malinverni is annexed to this judgment.
L.L.
S.N.
CONCURRING OPINION OF JUDGE LOUCAIDES
JOINED BY JUDGE
MALINVERNI
I
agree with the finding of the majority 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”
(see paragraph 52 of the judgment). I also agree with the basic
reasoning preceding this conclusion, according to which “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” (see paragraph 51).
In
fact I believe that this reasoning can very well cover all the
applicant's relevant allegations regarding his ill-treatment by the
police from the moment of his arrest up to the moment of his transfer
to hospital. During all that period he was in the police's charge and
his allegations of injuries sustained as a result of the conduct of
the police were corroborated by medical reports. These reports do
not, and could not, attribute the injuries to any specific period
during which the applicant was in the police's custody. Therefore, I
do not see how the majority could find that the medical reports
corroborate the applicant's allegations only in respect of the period
before he was inside Toumba police station.
In
any event, I do not understand why the majority failed to examine the
applicant's allegations as regards his ill-treatment by the police at
the station. The reasoning given by the majority does not appear at
all convincing to me. It runs as follows: “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 paragraph 53).
Neither
the fact that there were conflicting accounts of the events nor the
fact that a judicial decision does not corroborate the relevant
events are sufficient reasons to justify the finding that the Court
“does not consider it necessary to examine the applicant's
allegations”. The preceding finding of the majority regarding
the ill-treatment of the applicant was also lacking judicial
corroboration – the Salonika Court of First Instance's
conclusions went in the opposite direction to the applicant's version
of events, and, according to the majority, “the parties have
given a different account of the incident, especially as regards how
both the applicant and the police officers sustained injuries”
(see paragraph 49).
In any event, in cases involving complaints of ill-treatment by the
police the Court always faces the problem of denial by the police of
the relevant allegations, and where the applicant has exhausted
domestic judicial remedies the Court faces the problem of deciding
whether the findings of the domestic courts are the correct ones or
not. In such cases the task of the Court is to decide where the truth
lies irrespective of the account given by the police authorities or
even the domestic courts (see Ribitsch v. Austria, judgment of
4 December 1995, Series A no. 336). It is precisely because of the
scope and object of the Court's task in cases of this kind that the
judicial review it carries out ensures effective protection of the
relevant individual human rights.
I
must add that in finding myself that the State in this case is also
responsible under Article 3 on account of the inhuman and degrading
treatment suffered by the applicant as a result of the conduct of the
police officers inside Toumba police station, I took the following
facts into account as corroboration of this finding:
(a)
the finding that the applicant was ill-treated soon after his arrest
and up to his transfer to the police station, which is shared by the
majority;
(b)
the inadequacy of the investigation into the applicant's allegations
as regards his ill-treatment by the police both before he entered the
police station and afterwards; and
(c)
the lamentable explanations given in the report of the police
administrative investigation – endorsed by the prosecuting
authorities – which was confined to the depositions of the
police officers and their denials of the applicant's allegations,
without questioning the witnesses. The report even went so far as to
find that the applicant had failed to submit to an examination by the
forensic doctor, thereby turning a blind eye to the forensic medical
examination he underwent on 29 January 2002.
In
the circumstances I find that the applicant's allegations that he was
ill-treated by the police at Toumba police station are well-founded
and that the State was responsible for such ill-treatment.
