AS TO THE ADMISSIBILITY OF
Application No. 21300/93
by Abdallah MEHIAR
against Greece
The European Commission of Human Rights sitting in private on
10 April 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
B. MARXER
I. CABRAL BARRETO
N. BRATZA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 March 1992 by
Abdallah MEHIAR against Greece and registered on 1 February 1993 under
file No. 21300/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the Commission's decision of 16 May 1994 to communicate the
application;
- the observations in writing submitted by the respondent
Government on 9 September 1994 and the observations in reply
submitted by the applicant on 1 August 1995;
- the parties' oral submissions at the hearing on 10 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Lebanese national born in 1960. He is a
captain in the merchant navy and is currently detained in Larissa
prison in Greece. In the proceedings before the Commission he is
represented by Mr. K. Terpos, a lawyer practising in Larissa.
The facts of the case, as submitted by the parties, may be
summarised as follows:
On a date which has not been specified the applicant was arrested
in Piraeus for importation, transportation and possession of drugs. On
17 December 1990 the applicant was placed in detention on remand in
Koridallos prison.
On 12 May 1991 the applicant escaped together with 30 other
prisoners. He was arrested a few hours later.
The applicant claims that he was brought to a police station,
where he was told to sign a statement in Greek. As he could not
understand the language, he asked to be given permission to consult his
lawyer. However, his request was rejected and the applicant signed. He
was then taken back to Koridallos prison together with twelve other
detainees who had also attempted to escape. He was left to wait for
four hours in an unspecified area from where he could hear the screams
of the other persons who had been arrested that day. He was then
brought to the office of the "deputy director" of the prison. He was
not asked any questions. Instead, he was beaten by five wardens. The
"deputy director" beat him first with a chain all over his body and
insulted him with offensive words. Another warden beat him with sticks,
while a third kicked him in the stomach and wounded him in the left
eye-brow, which started to bleed. Finally, the last two wardens threw
a desk at him. He submits that, at this moment, he thought he was going
to die.
The applicant further claims that, later the same day, he was
beaten by fifteen wardens on the head, joints and back until he
collapsed.
After his arrest the applicant was placed in a "special cell".
The applicant claims that the cell was dark, that he was kept in
isolation for 30 days and that on the first day he received neither
food nor water. The applicant, who had been diagnosed as suffering from
a chronic kidney problem in 1991, claims that he saw blood in his urine
and that he had a strong headache. He asked to be examined by the
prison doctor. There was allegedly no response to his request.
The Government submit that the applicant was placed in the
"special cell" for five days by way of disciplinary punishment, that
he was not subjected to sensory isolation, that he could have daily
contact with a doctor and that he was regularly provided with food and
drink. They have produced a copy of the decision of 13 May 1991 of the
Disciplinary Board of Koridallos prison imposing on the applicant the
disciplinary punishment of five days' detention in the special cell.
They have also produced a letter addressed by Koridallos prison to the
Agent of the Government on 4 July 1994 to the effect that the duration
of the applicant's detention in the special cell was five days and not
three days and that the applicant "was not deprived of anything which
should have been provided to him according to the law" during that
detention.
In a certificate issued by the director of Koridallos prison on
26 September 1995 it is stated that no disciplinary penalty was imposed
on the applicant during his detention in Koridallos.
At the hearing on the admissibility and merits before the
Commission, the applicant submitted press reports to the effect that
the thirteen prisoners who had attempted to escape and had been
arrested on 12 May 1991 appeared before the public prosecutor in
connection with the escape charges on 13 May 1991. One of these
prisoners, Mr. A.H., while waiting to be examined by the prosecutor
told the journalists that he had been beaten by the prison guards when
he was trying to escape. He asked the journalists to intercede so that
he could be admitted to hospital and said that, if he returned to
Koridallos prison, his life could be in danger. A newspaper carried a
photograph of A.H. with bruises on his back. It was also reported that
on 14 May 1991 the thirteen prisoners appeared before the three-member
First Instance Criminal Court (Trimeles Plimmeliodikio) of Piraeus in
connection with some charges which could be examined under a special
procedure for in flagrante offences. The court decided to adjourn until
15 May 1991 and the accused were transported to Koridallos prison.
According to the press reports submitted by the applicant, the
thirteen prisoners re-appeared before the criminal court of Piraeus on
15 May 1991. The court decided to adjourn the examination of the case
until 20 May 1991 because the lawyers were on strike. The accused asked
not to be transferred back to Koridallos prison where they had been
subjected to ill-treatment. The thirteen prisoners re-appeared before
the criminal court of Piraeus on 20 May 1991. In the course of the
hearing, one of the accused, Mr. K.H., claimed that they were being
kept in the "special cells" in isolation and that they were not being
given food. The court decided to adjourn the examination of the case,
because some prosecution witnesses were not present. The prisoners were
transported back to Koridallos prison.
The applicant claims that he was one of the persons who appeared
before the public prosecutor on 13 May 1991. He contends that he
complained on that occasion of ill-treatment. He also claims that he
was one of the persons who appeared before the criminal court of
Piraeus.
At the hearing before the Commission, the Government submitted
that they were not in a position to state whether the above-mentioned
press reports concerned the applicant.
The applicant claims that, after he had been released from
isolation, he asked again for medical treatment without success on
22 July 1991. When he started crying in pain and asking for help he was
dragged into the "deputy director's" office. He alleges that ten
wardens, together with a Greek co-detainee, started beating him,
calling him a "trouble maker", burning the skin of his right leg with
cigarettes, punching him and threatening that they would hang him if
he were to ask again for treatment because they wanted him to die. When
the applicant fell on the floor, he was dragged back into his cell
seriously wounded.
On 30 September 1991 the applicant was brought together with an
unspecified number of other persons before the three-member First
Instance Criminal Court of Piraeus to be tried for having caused
physical harm to a warden, mutiny and escaping. He was not represented
by counsel. The applicant claims that only those who were accused of
having organised the escape had a lawyer. The applicant was found
guilty and sentenced to two years and ten months' imprisonment.
According to the applicant, those who were accused of organising the
escape and were represented by legal counsel, and many Greek co-
detainees, received lower sentences. The applicant appealed.
On 10 October 1991 the Koridallos prison administration informed
the Public Prosecutor's Office of Piraeus that the applicant had
requested an interview with a prosecutor.
On 17 October 1991 the applicant was convicted at first instance
by the three-member Court of Appeal (Trimeles Efetio) of Piraeus of
importation, transportation and possession of drugs. He was sentenced
to life imprisonment. He appealed.
On 31 October 1991 the applicant complained of strong pains in
the kidneys and head and was examined by the prison doctor who
recommended his hospitalisation. He was immediately transferred to
Nikea hospital.
According to the applicant, the results of his first examination
there confirmed the existence of serious injuries to both his kidneys
and the continuing existence of blood in his urine. As a consequence,
a general examination and treatment were prescribed. Nonetheless, he
did not receive any medical treatment nor did he obtain a more detailed
medical diagnosis, because the doctors were on strike.
On 5 November 1991 the applicant was transferred back to prison.
The applicant claims that he was not officially discharged but was
removed from the hospital at the insistence of the prison
administration.
In a certificate issued by Nikea hospital on 24 December 1991 it
is mentioned that the applicant had a kidney problem. By letter dated
18 January 1996 the Nikea hospital informed the Agent of the Government
that, during the applicant's hospitalisation between 31 October 1991
and 5 November 1991, it was established that the applicant had some
congenital kidney problems, that no operation was needed, that it could
not be said that his kidneys did not function adequately, that the
applicant had a blood count of 43,7% red blood cells which indicated
that there could not have been a lot of blood in his urine and that he
was discharged because there was no reason why he should be kept in
hospital.
On 18 December 1991 the applicant was transferred to Patras
prison. He claims that he immediately asked to be examined by a doctor
but without any success. The Government have submitted a copy of the
applicant's personal file which is being kept in Larissa prison. The
file contains the medical record of the applicant's detention in Patras
prison, where it is stated that the applicant had no health problems
when he was admitted to that prison.
On 26 February 1992 Koridallos prison addressed a letter to
Patras prison transmitting the medical record of the applicant's
detention in Koridallos prison. No copy of that medical record has been
submitted by the Government to the Commission. The Government contend
that, as opposed to other documents concerning the applicant, the
record had never been transmitted to Larissa prison and that it was
destroyed during a riot in Patras prison on 28 February 1996.
The applicant claims that on 23 March 1992 he filed an
application with the Office of the Public Prosecutor of Patras asking
for a medical examination but received no reply. On 20 July 1992 he
claims that he applied once more to the Public Prosecutor for a medical
examination but was not successful. The applicant claims that he has
sent his only copies of these letters to the Commission.
The Government contest that the applicant took any such steps.
They refer in this connection to a certificate issued on 27 June 1994
from the medical authorities of Patras prison to the effect that the
applicant never visited the prison surgery, a second certificate issued
on 28 June 1994 by Larissa prison to the effect that there is no
indication in the applicant's personal file that he ever applied to the
Public Prosecutor's Office of Patras for a medical examination and a
third certificate issued on 5 July 1994 by the Public Prosecutor's
Office of Patras to the same effect.
On 27 July 1992 the applicant submitted a criminal complaint to
the Public Prosecutor's Office of Patras complaining that some of his
belongings had been lost when he was arrested in Piraeus. The complaint
was registered and transmitted to the Public Prosecutor's Office in
Piraeus.
On 31 July 1992 the applicant was transferred to Larissa prison.
On 8 June 1993 the three-member Court of Appeal of Piraeus upheld
the applicant's conviction for mutiny and escape but acquitted him of
having caused harm to a warden. The court further decided to reduce his
sentence to fifteen months' imprisonment. The applicant submits that
he was not assisted by counsel at the hearing. He also claims that the
sentence he received on appeal was not heavier than that imposed on the
other persons whose appeal was heard on that day. He notes, however,
that the appeal of the Greek co-accused at the original trial was heard
on another day. The applicant did not appeal against the decision.
On 28 June 1993 Larissa prison transmitted to the Office of the
Public Prosecutor of Piraeus a second criminal complaint lodged by the
applicant concerning the loss of his belongings.
On 7 July 1993 the five-member Court of Appeal (Pentameles
Efetio) of Piraeus upheld the applicant's conviction for importation,
transportation and possession of drugs but reduced his sentence to
eighteen years' imprisonment. The applicant appealed in cassation. The
hearing was set for 15 February 1994.
On 2 August 1993 Larissa prison transmitted to the Office of the
Public Prosecutor of the Court of Appeal of Piraeus a request by the
applicant. In reply, the public prosecutor of the Court of Appeal of
Piraeus instructed the secretariat of the appeal court to send the
applicant a copy of the decision of 7 July 1993.
In October 1993 the applicant was admitted to Larissa hospital
for his kidney problem.
On 8 December 1993 Larissa prison transmitted to the Office of
the President of the Republic a letter by the applicant. The Office of
the President of the Republic transmitted the letter to the Ministry
of Justice on 16 December 1993. On 21 January 1994 the Ministry of
Justice wrote to the Director of Larissa prison asking him to inform
the applicant that the Ministry could not interfere with a pending
appeal and instructing him to provide for medical care for the
applicant, if such care was necessary.
On 26 January 1994 the Ministry of Justice wrote to the Director
of Larissa prison asking him to inform the applicant that the Ministry
could not deal with any of the questions raised by the applicant in a
letter he had addressed to the Ministry of Justice, since these issues
were under examination by the courts.
On 21 December 1993 Larissa prison transmitted to the Office of
the Public Prosecutor of the Court of Cassation a letter by the
applicant asking for permission to attend in person the hearing of
15 February 1994 on his appeal in cassation against the decision of
7 July 1993.
On 12 January 1994 the Public Prosecutor of the Court of
Cassation informed the applicant that he could not attend in person the
hearing of his appeal in cassation.
On 26 May 1994 the applicant addressed a letter to the Commission
in which he referred to a radio report to the effect that the chief
warden of Koridallos, Mr. A.F., had been charged with drug-trafficking
inside Koridallos prison and other offences and that he had been
arrested. The applicant claimed that A.F. was "the deputy-director" of
Koridallos prison who had beaten him on 12 May 1991.
On a date which has not been specified the applicant's appeal in
cassation was rejected.
On 25 October 1994 the applicant asked for permission to serve
the sentence imposed on him for the drug-related offences concurrently
with the sentence imposed on him for attempting to escape.
On 8 May 1995 Larissa prison transmitted to the Office of the
Public Prosecutor of the Court of Appeal of Piraeus a letter by the
applicant concerning the possibility of serving his two sentences
concurrently.
On 2 August 1995 it was reported in the Greek press that the
three-member first instance criminal court of Piraeus, sitting in
chamber, refused to order the provisional release of A.F., who had in
the meantime been charged with having attempted to murder a public
prosecutor who was investigating serious allegations of misconduct on
the part of the Koridallos prison administration.
On 11 September 1995 and 20 December 1995 Larissa prison
transmitted to the Office of the Public Prosecutor of the Court of
Appeal of Piraeus two letters by the applicant. The Government contend
that these letters related to the applicant's request for permission
to serve his two sentences concurrently but have not provided copies
of the letters. The applicant claims that he lodged with the Office of
the Public Prosecutor of Piraeus a criminal complaint against a lawyer
who had represented him in the proceedings for the drug-related
offences.
In March 1996 it was reported in the Greek press that the
sentence of A.F., who had been convicted for illegally keeping arms in
his room in Koridallos prison, was reduced on appeal to four years and
two months' imprisonment.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of
repeated ill-treatment in prison and the consistent refusal of the
prison authorities to provide him with medical assistance.
2. The applicant further alleges a violation of Article 6 para. 3
(c) of the Convention in that he was not assisted by a lawyer during
the criminal proceedings against him on the escape and other related
charges. He also complains that the court treated more favourably those
co-accused persons who were Greek nationals.
3. Finally, the applicant complains of the wrongfulness of his
conviction for drug-trafficking. He does not invoke any particular
provision of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 May 1992 and registered on
1 February 1993.
On 16 May 1994 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on admissibility and merits.
The Government's observations were submitted on 9 September 1994
after an extension of the time-limit fixed for this purpose. On
1 August 1995 the applicant submitted his observations in reply after
an extension of the time-limit fixed for this purpose.
On 27 November 1995 the Commission decided to invite the parties
to submit oral observations on the admissibility and the merits of the
application at a hearing.
The hearing took place on 10 April 1996.
At the hearing the parties were represented as follows:
For the Government:
Mr. Phokion Georgakopoulos, Acting Agent, Senior Adviser, Legal
Advisory Council of the State
Mr. Vassilios Kyriazopoulos, Legal Assistant, Legal Advisory Council
of the State
For the applicant:
Mr. Konstantinos Terpos, Representative, Barrister
THE LAW
1. The applicant complains that he was repeatedly ill-treated or
tortured in prison and that he was not given any medical assistance.
He invokes Article 3 (Art. 3) of the Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that the applicant has not exhausted
domestic remedies, because he never attempted to bring his complaints
to the attention of the prison director, the public prosecutor or the
court entrusted with supervising the execution of his penalty. Neither
did he institute civil proceedings against the State for compensation.
The Government contend that these are effective remedies and refer, by
way of example, to a decision of the three-member First Instance
Criminal Court of Piraeus which found a prison warden guilty of causing
physical harm to a prisoner.
The Government further submit that the applicant had under
domestic law the right to communicate freely and in conditions of
confidentially with all public authorities outside the prison. This is
evidenced by the fact that the applicant was able to lodge a criminal
complaint concerning the loss of his belongings at the time of his
arrest in Piraeus. He was also able to submit various other requests
to different public prosecutors.
The applicant submits that he did not attempt to raise his
complaints concerning ill-treatment in Koridallos for fear of reprisals
by the prison administration. In this connection he has submitted a
statement by a co-detainee to the effect that none of the persons who
had escaped on 12 May 1991 had attempted to complain about the ill-
treatment to which they had been subjected because they had been
threatened by the deputy prison director and his assistants. He also
refers to the press reports concerning the criminal proceedings which
were subsequently instituted against the Koridallos chief warden.
The applicant further submits that the remedies invoked by the
Government are not effective because there have been very few or no
convictions of prison officers for ill-treatment of detainees in
Greece. Moreover, the courts have very rarely or never awarded
compensation to detainees suing the State for injuries they had
suffered in prison. In any event, the public prosecutor should have
instituted criminal proceedings proprio motu when he had been informed
from the press that the persons who had attempted to escape on
12 May 1991 had complained of ill-treatment.
The applicant finally claims that his various applications for
a medical examination to the Public Prosecutor's Office of Patras were
not answered.
The Commission notes that many of the facts of the case are in
dispute between the parties. Following its standard practice, it will
examine the case on the basis of all the material before it and will
not rely on the concept that the burden of proof is borne by either the
respondent Government or the applicant. The Commission wishes, however,
to stress that the Contracting Parties have a duty to co-operate with
the Convention institutions in arriving at the truth (Eur. Court H.R.,
Artico judgment of 13 May 1980, Series A no. 37, p. 15, para. 30).
The Commission considers that the respondent Government have not
provided a satisfactory explanation for the various inconsistencies in
the records of Koridallos prison concerning the reasons for the
applicant's detention in the "special cell" and its duration as well
as for the failure of Patras prison to transmit part of the applicant's
personal file to Larissa prison. It also notes that they have not
provided copies of various letters the applicant addressed to State
authorities from Larissa prison. Moreover, at the hearing before the
Commission they claimed not to be in a position to specify whether the
applicant was among the thirteen accused persons mentioned in the
various press reports in May 1991.
The Commission considers that, in a modern society, the failure
of the domestic authorities to keep proper records cannot be relied on
by a respondent Government as a valid explanation for not being fully
able to co-operate with the Commission in the establishment of the
truth. However, the Commission considers that it has enough elements
in its possession for deciding on the admissibility of the application.
The Commission recalls that, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law". In accordance with its case-law,
compensation may in normal circumstances be an adequate and sufficient
remedy in respect of a complaint of ill-treatment in violation of
Article 3 (Art. 3) (No. 8462/79, Dec. 8.7.80, D.R. 20 p. 184). It
follows that one at least of the remedies suggested by the Government
would be in principle an effective remedy for the applicant's
complaints: lodging a criminal complaint with the public prosecutor
with a view to joining the proceedings as partie civile and asking for
damages (see, in respect of Greece, No. 23916/94, Dec. 6.4.95,
unpublished; and in respect of other jurisdictions, mutatis mutandis,
No. 10078/82, Dec. 13.12.84, D.R. 41 p. 103; Nos. 16311/90, 16312/90
and 16313/90, Dec. 11.10.91, D.R. 72 p. 200).
The Commission further considers that the applicant's allegations
concerning the rate of convictions of prison officers accused of having
ill-treated detainees are too vague to justify departing from the
above-mentioned case-law in the present case.
The Commission notes with some concern that, although the
allegations of ill-treatment of the prisoners who attempted to escape
on 12 May 1991 received extensive press coverage, the competent public
prosecutor did not take proprio motu any steps to investigate the
possibility of criminal offences having been committed. Neither did he
take any such steps when the application was communicated to the
respondent Government.
The Commission, however, considers that the failure of the public
prosecutor to institute criminal proceedings proprio motu does not
dispense the applicant from the obligation under Article 26 (Art. 26)
of the Convention to raise himself his complaints with the competent
domestic authorities. In accordance with the Commission's case-law, the
mere existence of doubt as to the effectiveness of a particular remedy
does not itself excuse an applicant from the obligation to exhaust it
(No. 9856/82, Dec. 14.5.87, D.R. 52 p. 38).
The Commission also notes the applicant's submissions concerning
threats of reprisals which had allegedly prevented him from attempting
to exhaust the particular remedy while in detention in Koridallos
prison. However, the Commission considers that the applicant could have
lodged a criminal complaint after he had been transferred from
Koridallos prison.
Finally, the Commission cannot accept the applicant's version of
events concerning his attempts to obtain a medical examination, by
complaining to the Public Prosecutor's Office, while he was detained
in Patras prison. It notes in this respect that, although the applicant
claims to have sent his only copies of the relevant letters to the
Commission, no such copies were ever received by the Commission's
Secretariat. Moreover, the Public Prosecutor's Office in Patras duly
registered another complaint by the applicant concerning the loss of
his belongings during his arrest.
It follows that the applicant has not satisfied the condition in
Article 26 (Art. 26) concerning the exhaustion of domestic remedies and
that this part of the application must be rejected in accordance with
Article 27 para. 3 (Art. 27-3) of the Convention
2. The applicant complains under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention that he was not assisted by a lawyer
during the criminal proceedings against him on the escape and other
related charges. He also complains that the court treated more
favourably those co-accused persons who were Greek nationals. He
submits that he did not appeal against the decision of the Court of
Appeal of 8 June 1993 because the proceedings before the Court of
Cassation could be expected to last at least three years.
The Commission recalls that Article 6 para. 3 (c) (Art. 6-3-c)
of the Convention guarantees the right of everyone charged with a
criminal offence to defend himself in person or through legal
assistance of his own choosing. Moreover, Article 14 (Art. 14) of the
Convention guarantees the right of everyone not to be discriminated
against in the enjoyment of the rights set forth in the Convention,
including the right to a fair hearing by an impartial tribunal in the
determination of any criminal charge against him.
The Commission is not, however, called upon to decide whether the
facts alleged by the applicant disclose an appearance of a violation
of those provisions. Under Article 26 (Art. 26) of the Convention, "the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law". Appealing in cassation against the decision of
8 June 1993 of the Court of Appeal of Piraeus would have been the most
effective way for the applicant to attempt to obtain redress for his
grievances at the domestic level. Moreover, no particular circumstances
are disclosed which would have released the applicant from the
obligation to exhaust this remedy. In particular, the applicant has not
substantiated his allegations that proceedings before the Court of
Cassation could be expected to last more than three years.
It follows that the applicant has not satisfied the condition of
exhaustion of domestic remedies and that this part of the application
must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
3. Finally, the applicant complains of the wrongfulness of his
conviction for drug-trafficking. He does not invoke any particular
provision of the Convention.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with complaints alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights or freedoms set out in the Convention
(No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,
Collection 43 p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31). The
Commission considers that, in the particular circumstances of the
applicant, this is not the case.
It follows that this part of the application must be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy