Information Note on the Court’s case-law 194

March 2016

Sakir v. Greece - 48475/09

Judgment 24.3.2016 [Section I]

Article 3

Effective investigation

Authorities’ failure to take into account local background of racist violence when investigating assault on migrant: violation

Facts – The applicant, an Afghan national, was hospitalised in 2009 with injuries to the thorax after being attacked by a group o f armed individuals in an area of central Athens known for repeated incidents of xenophobic violence. Having been discharged from hospital, and in the absence of a residence permit, he was held for about ten days in a police station pending his expulsion, before being released with an order to leave Greece.

A witness accused two individuals by name, before withdrawing his allegations. The witness was then prosecuted for having made a false statement. He later he reaffirmed his statement and was ultimately a cquitted of the charge against him.

After the police had closed the preliminary investigation the file was sent to the prosecutor, who in 2012 sent it to the archives as an offence committed by unidentified persons.

Law – Article 3

(a) Substantive aspect – The overcrowding and poor conditions of detention in the police station, which appeared to be used as a place of detention for illegal migrants for several months on end, had been noted by both the national Ombudsman during the applicant’s stay there and the UN Special Rapporteur on Torture*.

As to the applicant’s specific situation, various shortcomings could be identified: these concerned whether the police authorities had given sufficient consideration to his medical condition and his state of vulnerab ility while in detention.

Firstly, he had been placed directly in detention in the police station as soon as he left hospital, without any attempt on the part of the police to find out in advance from the hospital authorities whether his health was compati ble with immediate detention.

Secondly, the applicant was still wearing the same blood-stained clothes he was in when he was assaulted, and the police authorities had not subsequently offered him clean clothes at any point or provided him with an opportunity to take a shower and have h is wounds tended.

Thirdly, the dates indicated in the hospital medical certificate for returning the applicant for further tests had not been complied with.

In the light of the foregoing, the authorities had failed to provide the applicant with conditions of detention that were compatible with Article 3 and had not adequately secured his health and well-being.

Conclusion : violation (unanimously).

(b) Procedural aspect – The authorities had not investigated the assault on the applicant with the requisite level of diligence and effectiveness.

(i) Obtaining evidence

– From the applicant – No statement had been taken from the applicant himself, although the authorities h ad had all the time necessary to question him, given that he was detained in the police station for almost ten days. The police authorities did not even invite him to identify the two individuals initially accused by the main witness of being part of the g roup of assailants. Nor had any steps been taken to identify other persons with links to extremist groups known to have committed racist attacks in the centre of Athens.

– From the doctors – Neither the police authorities nor the prosecutor had sought to establish in detail the nature and cause of the injuries inflicted on the applicant, by ordering, for example, a forensic medical report, whose conclusions could have helped identify the perpetrators.

– From the witnesses – The police had questioned only two witnesses: a police officer present during the incident, and a compatriot of the applicant who had alerted the police about the attack. Yet, according to the former’s statement, there had been at least one other eye-witness, who was never summoned for questioning.

As to the second witness – a foreigner in police custody for not holding a residence permit when he gave his statement as an eyewitness – he was undoubtedly in a vulnerable situation. The police ought therefore to have questioned him in cond itions which could guarantee the reliability and veracity of any information he was able to give about the assault on the applicant. Yet after he retracted his initial statement identifying two – known – individuals as the main perpetrators of the attack, he was not questioned at any point about the reasons for his change in testimony at a few hours’ interval, but was instead prosecuted for making a false statement. Although the prosecution proved to be unfounded, the relevant judicial authorities took no s teps – such as summoning the two individuals identified in order to re-examine their role in the impugned incident, perhaps by organising a confrontation with the witness – to establish the veracity of his initial statement.

(ii) Failure to take the gener al context of racist violence in Athens into account – Reports by several national bodies and international NGOs consistently highlighted the clear increase in violent racist incidents in the centre of Athens since 2009, when the event in question occurred .

They referred to the existence of a recurrent pattern of assaults on foreigners, carried out by groups of extremists, the majority of the recorded incidents having taken place in two specific districts, including the district where the applicant was assa ulted.

The reports also referred to serious failings on the part of the police with regard both to their intervention when such attacks took place in the centre of Athens and the effectiveness of the subsequent police investigations.

Although the incident in the present case had occurred in one of the two districts in question and the attack had certain features resembling those of a racist attack, the police had failed entirely to assess the case from the perspective described in the above-mentioned report s and had dealt with it as an isolated incident. Thus, neither the police nor the relevant judicial bodies had taken steps to identify possible links between the incidents described in the reports and the assault against the applicant.

However, in investig ating allegations of possibly racist ill-treatment, an adequate response was to be regarded as essential to prevent any appearance of collusion in or tolerance of unlawful acts and in maintaining public confidence in the principle of legality and their adh erence to the rule of law.

Conclusion : violation (unanimously).

The Court also found, unanimously, that there had been a violation of Article 13 taken together with Article 3, owing to the lack of an effective remedy for the applicant’s conditions of deten tion in the police station.

Article 41: no claim made in respect of damage.

* See Ahmade v. Greece , 50520/09 , 25 September 2012, in which the Court had already found a violation of Article 3 under this head.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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