CEDH · CASELAW;CLIN;ENG — 17 janvier 2012

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Greece - 12294/07 Judgment 17.1.2012 [Section I] Article 3 Torture Rape of illegal immigrant by coastguard responsible for supervising him: violation   Effective investigation Inadequacy of redress afforded by State to detainee victim of torture: violation   Facts – The applicant is a Turkish national. In May 2001 he and other migrants boarded a boat in Istanbul bound for Italy. The vessel was intercepted by the Greek coastguard and escorted to a port on the island of Crete. On 5   June 2001 the applicant reported that two coastguard officers had forced him to undress while he was in the bathroom. One of them, D., had allegedly threatened him with a truncheon and then raped him with it. On 6   June 2001 the commanding officer of the coastguard service, who had not been present during the incident, ordered an inquiry after hearing the detainees’ account. In February 2004 the applicant left Greece, travelling first to Turkey and then to the United Kingdom. In June 2006 the Naval Appeals Tribunal sentenced D. to a suspended term of six months’ imprisonment, which was commuted to a fine. Law – Article 3 (a)   Substantive aspect – The rape of a detainee by an official of the State was to be considered as an especially grave and abhorrent form of ill-treatment, given the ease with which the offender could exploit the vulnerability and weakened resistance of his or her victim. Furthermore, rape left deep psychological scars on the victim which did not respond to the passage of time as quickly as other forms of physical and mental violence. In the instant case all the domestic courts examining the case had noted that there had been forced penetration which had caused the applicant acute physical pain. An act of that kind, perpetrated, moreover, against a person in detention, was liable to leave the victim feeling debased and violated both physically and emotionally. In its judgment in Aydın v. Turkey* , the Court had found that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she had been subjected amounted to torture in breach of Article   3 of the Convention. Furthermore, a number of international courts had accepted that penetration with an object amounted to an act of torture. There could be no doubt that, owing to its cruelty and its intentional nature, the treatment to which the applicant had been subjected in the instant case had amounted to an act of torture from the standpoint of the Convention. Conclusion : violation (unanimously). (b)   Procedural aspect – The Court had doubts as to whether a thorough and effective investigation had been carried out in the context of the disciplinary proceedings brought against the coastguard officers. Following the rape, the applicant’s request to be examined by the doctor who was on the premises had been refused. Furthermore, the beating inflicted on the applicant, according to D.’s version of the incident, had not been entered in the infirmary’s patient records. The conclusion of the report on the inquiry, according to which the coastguard officers’ account appeared credible partly because the applicant did not feature in the patient records, was not satisfactory. Furthermore, the applicant’s witness evidence in the inquiry had been falsified, as the rape of which he had complained had been recorded as a “slap” and “use of psychological violence”. In addition, the events had been summarised inaccurately and the applicant had been reported as saying that he did not wish to see the coastguard officers punished. In that connection the Ombudsman, on 13   March 2007, had requested the Minister of Merchant Shipping to order a fresh disciplinary inquiry, since the first inquiry had not taken into consideration the fact that the applicant had actually been raped by the coastguard officer. Nevertheless, proceedings had been instituted in the criminal courts. Greece had enacted criminal-law provisions imposing penalties for practices contrary to Article   3, and the coastguard officer D. had been convicted both at first instance and on appeal on the basis of those provisions. Furthermore, the internal administrative inquiry and the criminal proceedings had been sufficiently prompt and diligent to meet the Convention standard. As to whether the penalty imposed had been adequate and had had a deterrent effect, the court of appeal, acknowledging that there had been extenuating circumstances in D.’s case, had sentenced him to a six-month suspended prison term which it had commuted to a fine of EUR   792. The leniency of the penalty imposed on D. was manifestly disproportionate in view of the seriousness of the treatment inflicted on the applicant. In view of that finding and of the fact that the applicant had been subjected to an act of torture, the Greek criminal-law system, as applied in the present case, had not had the desired deterrent effect such as to prevent the commission of the offence complained of by the applicant, nor had it provided adequate redress for the ill-treatment meted out to him. With regard to the State’s obligation to award compensation to the applicant or, at the very least, afford him the opportunity of seeking and obtaining redress for the harm caused by his ill-treatment, the applicant had applied to be joined as a civil party to the proceedings before the naval tribunals trying the coastguard officers. However, on account of the fact that he had been outside the country and despite his efforts to follow the progress of the proceedings with a view to participating in them, the Greek authorities had failed in their duty to inform him in time, with the result that he had been unable to exercise his rights as a civil party for the purpose of claiming compensation. Although, in Greek law, the criminal trial could take place without the civil party being present and the criminal courts did not adjourn examination of a case where the civil party was unable to appear, if the civil parties announced their intention to appear they acquired the status of party to the proceedings and enjoyed all the corresponding rights under the Code of Criminal Procedure. The fact that the applicant had been unable to attend the trial was of particular significance in the present case because even at the investigation stage, when he had applied to join the proceedings as a civil party, he had been unable to exercise his rights to the full. Accordingly, he had not been sufficiently involved in the proceedings in his capacity as a civil party. Consequently, the respondent State had not afforded sufficient redress for the treatment inflicted on the applicant in breach of Article   3. The Court therefore dismissed the Government’s objections of failure to exhaust domestic remedies on account of the applicant’s supposed waiver of his status as a civil party and lack of victim status. Conclusion : violation (unanimously). Article 41: EUR 50,000 in respect of non-pecuniary damage. * Aydın v. Turkey , no.   23178/94, 25   September 1997.     © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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