Case Watch: Greek Migrant Male Rape Counts as Torture

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

On January 17 the European Court of Human Rights ruled in Zontul v Greece that Greece had violated the prohibition on torture in the case of a gay asylum-seeker who was raped with a truncheon by a Greek coastguard. The Greek courts had refused to treat the crime as torture, ignored Mr Zontul’s requests to take part in the proceedings and punished the coastguard responsible with a fine of only €800 Euros ($1000).

This is the latest of a series of judgments from Europe’s supreme courts condemning Greek official treatment of asylum-seekers. At the end of December 2011, the Court of Justice of the European Union decided in its NS and ME judgment that the fundamental rights of asylum-seekers prevented them being sent by European Union countries to Greece because of conditions for them there. This followed the European Court of Human Rights judgment in MSS v Belgium and Greece that conditions for asylum-seekers in Greece are inhuman and degrading.

In 2001, Mr Zontul, a Turkish man, was travelling on a  boat intercepted by Greek coastguards. It seems that – like many asylum-seekers – the passengers had no wish to claim asylum in Greece but were trying to get to a safe European country. The coastguards stopped the passengers from travelling and then detained the passengers in  a disused school in Crete. Thirty men and one child were forcibly held in a room 2 by 2 metres large. A week into this detention, Mr Zontul was trapped by coastguard Dandoulakis and raped with a truncheon - while another guard kept lookout. Mr Zontul testified that he had been attacked because the coastguards believed him to be gay.

The detained migrants protested with a hunger strike. The coastguards responded by attacking the migrants en masse with two hours of truncheon beatings, leaving some with broken bones and hospital stays of five hours. An investigation was immediately begun, but the official interpreter deliberately falsified Mr Zontul’s evidence, downgrading his case of rape to ‘a slap’ and claiming he did not want the coastguards punished. Nevertheless, the coastguards were prosecuted and the Greek court accepted Mr Zontul’s account of the rape. Five years after the attack, the Greek courts ended the proceedings, imposing on Dandoulakis a 6 month prison sentence commuted to a daily fine of €4.40 and on his fellow coastguard an even smaller fine.

The European Court of Human Rights found three reasons why the Greek courts’ treatment of the rape case breached the prohibition on torture in article 3 of the European Convention on Human Rights.

The first violation found by the European Court was that, while the Greek court accepted the rape had been criminal, it denied that it counted as torture. The European Court held that the rape was torture—following the case law of other international courts, including the Inter-American Court of Human Rights and the International Criminal Tribunal for Former Yugoslavia. The European Court did not suggest that rape of a man is different in law from rape of a woman. The Court set out the argument of the Center for Justice and Accountability that a crime is aggravated if motivated by the sexuality of the victim, but did not rule on it.

The European Court also decided that the Greek court’s fine was too weak to count as a proper deterrent to the serious crime of rape. Lastly, the Greek court had ignored the repeated requests of Mr Zontul, by then living in England, to be informed of progress in the criminal case so that he could take part. This too was a violation of article 3. The European Court referred to its case law that a victim of torture has the right to be able to claim compensation. The court decided that this includes a right to be allowed to take part in the proceedings, and therefore also to be kept informed of the case. More than ten years after the attack, Mr Zontul was awarded €50,000 compensation by the European court.