CASE OF ZELILOF v. GREECE
Violation of Art. 3 (ill-treatment suffered at the hands of the police and failure to conduct an effective investigation);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Loukis Loucaides
5. The applicant is a Greek citizen of Russian-Pontic origin who was born in 1978 and lives in Salonika. 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. 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”. 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. 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].” 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. 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. 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. 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). 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 ....” 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”.