Article 3 of the ECHR prohibits torture and inhuman or degrading treatment or punishment.This right is considered to consist of two aspects, the substantive and the procedural. In its substantive aspect, states have an obligation not to permit any inhuman or degrading treatment or torture of persons in their custody. Under the procedural part of the same article, states have an obligation, in the case of an allegation of ill-treatment, to conduct a prompt, thorough and independent investigation. The investigation must be conducted impartially, in an appropriate manner and within a reasonable time period (see more on the content of Article 3 of the ECHR at 1, 2).
On 26 January 2023 the judgement in the case of B.Y. v. Greece (application no. 60990/14) was delivered.
The case concerns the refoulement of B.Y., a Turkish national, who was returned to Turkey from Greece, and alleges that he was mistreated by the Greek authorities. Relying on Article 3 of the ECHR, the applicant complained both about the treatment he had received and about the alleged ineffectiveness of the investigation conducted by the national authorities into the events in question. Invoking Article 5 of the ECHR, the applicant also complained of the unlawful deprivation of his liberty.
Considering the arguments put forward by the parties, the Court noted that the applicant’s allegations that police officers had handed him over to the Turkish authorities and subjected him to treatment contrary to Article 3 of the Convention could not be substantiated with any certainty. The ECtHR, however, held that the Greek State had failed to conduct an effective investigation and concluded that there had therefore been a violation of the procedural aspect of Article 3 ECHR (see more at paras. 63-66).
The Court took into account two elements to justify its finding that the case had not been effectively investigated. In particular, while it was established that the number plate of the vehicle involved belonged to the Greek police, the identity of the persons involved was not further investigated, nor was any police officer questioned on the matter. Moreover, the two eyewitnesses were examined by the authorities almost 8 months after the Prosecutor’s Office was informed of their existence.
Finally, it is noted that the ECtHR concluded that no evidence was found sufficient to enable the Court to draw specific conclusions about a violation of the substantive part of Article 3, while stressing, however, that this failure was largely due to the failure of the national authorities to conduct an effective and thorough investigation. The Court took a similar view of the applicant’s allegation of a breach of Article 5 para. 1 of the ECHR, with the majority concluding that there had been no violation of that Article (see more in paragraphs 96-99). On the other hand, in the opinion of the minority (see p. 27 et seq. of the judgment), there had been a violation of both the substantive part of Article 3 and Article 5 of the ECHR in this case. The applicant was awarded EUR 12 500 in damages.
Respect for fundamental rights is one of the key components of the rule of law.
The fundamental rights that every citizen should enjoy are enshrined in the European Convention on Human Rights. It is a primary and undeniable obligation of the state to respect these rights.
In this particular case, however, the European Court of Human Rights found that the failure of the Greek State to conduct an effective investigation into allegations of torture or inhuman treatment constituted a violation of the procedural aspect of Article 3 of the ECHR.
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