Committee of Ministers Secrétariat Du Comité Des Ministres

SECRETARIAT / SECRÉTARIAT

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITÉ DES MINISTRES

Contact: Zoe Bryanston-Cross Tel: 03.90.21.59.62

Date: 11/05/2020 DH-DD(2020)410

Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1377th meeting (June 2020) (DH)

Communication from an NGO (Greek Helsinki Monitor) (20/04/2020) in the case of Chowdury and Others v. Greece (Application No. 21884/15)

Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

* * * * * * * * * * *

Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1377e réunion (juin 2020) (DH)

Communication d’une ONG (Greek Helsinki Monitor) (20/04/2020) relative à l’affaire Chowdury et autres c. Grèce (requête n° 21884/15) [anglais uniquement]

Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

DGI 20 AVR. 2020

SERVICE DE L’EXECUTION GREEK HELSINKI MONITOR (GHM) DES ARRETS DE LA CEDH Address: P.O. Box 60820, GR-15304 Glyka Nera Telephone: (+30) 2103472259 Fax: (+30) 2106018760 e-mail: [email protected] website: http://greekhelsinki.wordpress.com

The President of the Committee of Ministers Department for the Execution of Judgments of the European Court of Human Rights Council of Europe Strasbourg France [email protected]

20 April 2020

Communication on the execution of L.E. v. Greece (application No. 71545/12), T.I. and others v. Greece (application No. 40311/10) and Chowdury and Others v. Greece (Application No. 21884/15)

Mr President

Under Rules 9(1) and 9(2) of the Rules of the Committee of Ministers for the supervision of the execution of judgments we submit the following communication on the execution of L.E. v. Greece (application No. 71545/12), T.I. and others v. Greece (application No. 40311/10) and Chowdury and Others v. Greece (Application No. 21884/15) and request that it is also uploaded at your special website for the 1377th DH meeting (2-4 June 2020).

1. Introduction

Greek Helsinki Monitor (GHM) has been the applicants’ representative in L.E. v. Greece and T.I. and others v. Greece.

GHM was one of the two NGOs the government mentioned on 2 October 2002 in Parliament that it had consulted with, ahead of the introduction of the ground-breaking 2002 legislation against human trafficking.

The cases of L.E. v. Greece and of T.I. and others v. Greece concern human trafficking for sexual exploitation. The case of Chowdury and Others v. Greece concerns human trafficking for labor exploitation.

2. Individual measures

a. (Non-) Payment of amounts awarded as just satisfaction and costs and expenses

The reference in the Committee of Ministers information page on L.E. v. Greece in the section on “Status of Execution” that “the amount awarded to the applicant as just satisfaction for non-pecuniary damage was paid” is inaccurate. As GHM has been unable to locate the applicant the amount awarded to the applicant as just satisfaction for non-pecuniary damage was not paid. On the contrary, as mentioned in Greece’s Action Report on this case, “the amount of 3,000 Euros was credited to the bank account of the applicant’s representative in conformance with the operative part of the Court’s judgment.”

1 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. This is to be contrasted with the different handling by Greece of the payment for just satisfaction for non- pecuniary damage and for costs and expenses in the case of T.I. and others v. Greece. Again, GHM has been unable to locate the applicants and hence the amounts awarded to them as just satisfaction for non- pecuniary damage were not paid. However, as GHM reported to the Committee of Ministers on 24 February 2020, to paraphrase (with two negations) the above phrase of Greece, “the amount of 3,000 Euros was NOT credited to the bank account of the applicants’ representative in NON-conformance with the operative part of the Court’s judgment.”

Greece has failed to submit an Action Plan/Action Report on the execution of the case of T.I. and others v. Greece within six months of the judgment becoming final (on 18 October 2019).

b. Court of Cassation appeals ‘in favor of the law’ (αναίρεση υπέρ του νόμου)

As Greece has reported in its March 2020 Action Report on Chowdury and Others v. Greece, the Court of Cassation with judgment 2/2019 “has set aside the judgment … of the Patras’ Appeal Court, which has been criticized by the ECrtHR. The Greek Court of Cassation has interpreted the Article 323A΄ of the Greek CC (the previous one), as follows: … “in order to establish the constituent elements of the crime of trafficking in human beings and in particular of labor exploitation, the element of the physical domination of the victim, induced in the various forms of trafficking (recruitment etc) does not require absolute enslavement, total deprivation of the victim’s liberty or the constant and uninterrupted placement of the victim under the perpetrator’s control in order for the victim to be considered in a vulnerable situation;” … In fact, the relevant Greek legislation actually in force, as interpreted above by the Supreme Court as well, disconnects the trafficking of human beings from the consent of the victim to the intended exploitation.”

c. Failure to effectively seek out the trafficker of L.E.

In the 2016 judgment in the case of L.E. v. Greece, the ECtHR concluded that: «Enfin, en ce qui concerne notamment K.A., l’auteur principal présumé des actes de traite au détriment de la requérante, il ne ressort pas du dossier que les autorités internes ont pris, à part son inscription dans le fichier des recherches criminelles de la police, d’autres initiatives concrètes pour le repérer et l’amener devant la justice. De surcroît, même pour la période postérieure à l’audience de l’affaire par la cour d’assises d’Athènes et l’acquittement de D.J., le Gouvernement n’offre pas d’informations concrètes sur l’état de l’investigation policière sur le sort de K.A. Ainsi, à titre d’exemple, il ne ressort pas du dossier que les autorités grecques ont établi une coopération et un contact avec les autorités nigérianes dans le but de repérer et arrêter K.A (voir, a contrario, M. et autres c. Italie et Bulgarie, no 40020/03, § 169, 31 juillet 2012).»

In Greece’s Action Report on this case, submitted in mid-2017 Greece stated that “In view of the above individual measures and also the circumstances of this particular case in the light of which the Court held that violation of the Convention has occurred, no other individual measure for compliance with the said judgment is required.” Greece, by failing to make any reference, hence implied that it ignored the ECtHR’s incitement to seek him out so as to bring to justice the person that its domestic court ruled was the perpetrator of such terrible crime, showing once again that it had no interest to offer justice to L.E..

3. General measures

a. The legislative framework

The ECtHR has considered the legislative framework introduced with Law 3064/2002 (to which GHM has contributed as acknowledged by the then government – see above) was adequate to combat human trafficking. In the most recent of the three judgments, T.I. and others v. Greece (final on 18 October 2019), this was well summarized: “142. La Cour rappelle par ailleurs que dans l’affaire L.E., précité, elle a déjà constaté que la loi no 3064/2002 n’avait pas manqué à offrir à l’intéressée une protection pratique et effective. Qui plus est, dans l’affaire Chowdury et autres, précité, elle a constaté que la Grèce s’était conformée pour l’essentiel à l’obligation positive de mettre en place un cadre législatif permettant de lutter 2 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. contre la traite des êtres humains.” The Article 4 violations concerned inappropriate application of the law and/or absence of an effective investigation and/or an effective judicial procedure and/or lack of speed in taking operational measures in favor of the applicants and shortcomings with regard to the procedural obligations.

The related legislation has been amended several times since 2002. The Committee of Ministers, in its September 2018 decision on Chowdury and others v. Greece, “welcomed the adoption of legislation aimed at combatting human trafficking including labour exploitation; further welcomed the setting up of coordinating and specialised structures, as well as the provision of training to professionals tasked with combatting human trafficking and the awareness-raising activities which have taken place.”

However, legislative amendments in 2019 have introduced a significant regression that Greece has failed to report in its March 2020 Updated Action Report. It is telling that Greece lists therein that “it has been provided an increase in the sentence for the criminal acts of the new Article 323A΄ CC - up to at least three (3) years in prison and a pecuniary sentence- for those who receive the services of trafficking victims,” a significant increase from the previous sentence to at least six (6) months in prison without any pecuniary sentence. But Greece fails to list the significant reduction in the main sentences for human trafficking; in fact it is surprising that Greece makes an erroneous reference to them: “According to the relevant provisions (Article 323A CC) the sentences imposed in case of conviction for THB offences reach a maximum up to (10) years of incarceration and pecuniary fines.” The maximum sentence has never been 10 years, but it was 20 and is now 15 (see below).

The significant reduction in the main sentences for human trafficking is very well described in Court of Cassation judgment 1979/2019 with which a case was sent back to the Mixed Appeals Court of Thessaloniki for the lowering of the sentences imposed as the result of the reduction in the new Criminal Code:

In this case, the most lenient law of article 323A' par.1, 3, 5st CC [L.4619 / 2019] must be applied, pursuant to article 2 of CC. The prison sentence of five [5] years imposed on the appellant, with the frame of the then existing sentencing, i.e. at least ten [10] years to twenty [20] years of imprisonment, the recognition of mitigating circumstances of Article 84 (2d and e) CC, as well as the provision of Article 83b CC, which in this case provided for imprisonment for up to twelve [12] years or imprisonment for at least two [2] years. However, since the new CC came in force, the frame of the sentence is five [5] to fifteen [15] years in prison, and the mitigating circumstances sentence are set out in Articles 83 and 85 CC.

This description also highlights the dramatic decrease in the sentencing as a result of the recognition of mitigating circumstances. The case concerned the multiple rapes and trafficking of a young Romanian in January 2007. The convicted as “trafficker by profession” was facing in 2018 a sentence between 10-20 years of imprisonment. The then existing mitigating circumstances however immediately lowered the possible sentence to 2-12 years. The judges chose a sentence of five years that was converted into a fine. Now the Mixed Appeals Court of Thessaloniki will have to consider that the sentence faced with the new CC is between 5-15 years and with the recognition of two mitigating circumstances six [6] months to six [6] years, which means that this trafficker’s sentence will be further reduced from 5 years to probably 2-3 years converted to a fine.

The Committee of Ministers is requested to note that what was in principle an adequate frame of sentencing for such hideous crimes (trafficking including rapes), that is 10-20 years imprisonment, has been reduced to a much milder 5-15 years. While it is true that all maximum non-life sentences in the new CC were reduce to 15 years, there was no reason for the minimum sentence to also be reduced from 10 to 5 years. Additionally and most importantly, the Committee of Ministers is requested to note that the recognition of mitigating circumstances in effect cancels what appears as sever sentencing for such crimes. In the old CC, the minimum sentence of 10 years was reduced to a minimum sentence of 3 years. In the

3 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. current CC, the minimum sentence of 10 years is reduced to a minimum sentence of 6 months (when there are more than one mitigating circumstances)!

The ECtHR did not have to deal with such situation in the three trafficking judgments under examination here. However, the ECtHR dealt with a similar situation in a torture judgment. As listed in the Notes for the Makaratzis group of cases the ECtHR has ruled that there was “leniency and disproportionate sentences imposed by domestic courts on law enforcement agents, even in cases where (aggravated) torture occurred (Zontul §§ 106-108, Sidiropoulos and Papakostas §§ 90-96). In view of this, the Committee might wish to call on the authorities to provide information on measures taken or envisaged in order to redress these shortcomings and to fully align criminal law and practice with the Court’s case law.” The leniency of domestic courts in Zontul resulted from the fact that they considered it as a case not of torture but of affront to the victim’s sexual dignity (rape): the corresponding sentence was 3 – 5 years but with the recognition of the mitigating circumstance of no prior conviction the sentence was reduced to 5 months for the accomplice and 6 months for the main perpetrator of the act, sentences converted to fines. On the contrary, the lenience of domestic courts in Sidiropoulos and Papakostas (represented before the ECtHR by GHM) occurred despite the fact that this has been to this date the only case that domestic courts convicted a law enforcement agent for torture (Article 137A.1a and 2 CC) and aggravated torture because of the use of electroshocks (Article 137B.1a) of two individuals. The corresponding minimum sentence was 10 years for the torture of each individual. The mitigating circumstances of no prior conviction recognized reduced the possible sentence to 2-12 years and the court chose a sentence of 4 years per act and then its total further reduced from 8 years to 5 years, converted to a fine, because the two cases were tried in the same trial: it was the upper limit for the torturer not to spend. In fact, the domestic court could have reduced the total sentencing to 3 years for both acts! This is why the ECtHR ruled “99. La Cour estime en conséquence que le système pénal et disciplinaire, tel qu’il a été appliqué en l’espèce, s’est avéré loin d’être rigoureux et ne pouvait engendrer de force dissuasive susceptible d’assurer la prévention efficace d’actes illégaux tels que ceux dénoncés par les requérants. Dans les circonstances particulières de l’affaire, elle parvient ainsi à la conclusion que l’issue des procédures litigieuses contre le policier n’a pas offert un redressement approprié de l’atteinte portée à la valeur consacrée dans l’article 3 de la Convention (Zeynep Özcan, précité, § 45)... 100. Dès lors, il y a eu violation de l’article 3 de la Convention sous son volet procédural.”

GHM is pleased that the two issues that it is the only actor that has advocated for, i.e. the decrease in sentencing for very serious crime that fall under Article 3 and 4 of ECHR in the new Criminal Code as well as the impact of the recognition of mitigating circumstances on the sentencing for such crimes have been included in the documents UN CAT and CPT have published about Greece. In the CPT April 2020 Report on Greece, it is mentioned inter alia (emphasis in the original):

91. The CPT has … highlighted the need to review other existing provisions of the Criminal Code to ensure that acts of torture and other forms of ill-treatment are appropriately punished as there appeared to be a systematic conversion of all prison sentences for such acts into non-custodial sentences (See, for example, European Court of Human Rights, Sidiropoulos and Papakostas v. Greece, App no 33349/10, 25 January 2018). The CPT regrets that the revised Criminal Code, adopted on 6 June 2019, has not fully addressed these deficiencies… Moreover, the limitation period for acts of torture and other forms of ill- treatment remains in place (paragraph 7) and there is still the possibility to apply mitigating circumstances (Article 84) that permit the conversion of prison sentences imposed for such crimes into non-custodial sentences, including fines. It is now up to the Court of Cassation (Areios Pagos) to clarify the law by way of an authoritative interpretation, i.e. an appeal or quashing ‘in favour of the law’ (αναίρεση υπέρ του νόμου), in order to send a clear message and re-frame legal doctrine in a way that allows for an application of the relevant provisions of the Criminal Code in line with the European Court of Human Rights’ case law. The CPT would like to receive the comments of the Greek authorities on the above issues, and particularly on the rationale for the amended torture provision and related sanctions contained in the revised Criminal Code.

In UN CAT’s August 2019 Concluding observations on the seventh periodic report of Greece, it is mentioned inter alia: 4 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.

10. While noting the entry into force of a new Penal Code on 1 July 2019,… the Committee observes with concern that the maximum penalty for the basic offence of torture –without aggravating circumstances– has been reduced from 20 to 10 years of imprisonment (arts. 1 and 4).

b. Statistical data

Below is a table with statistics through 2018 available in the Hellenic Police website. In its March 2020 Updated Action Report, Greece apparently used the same data with one minor exception, the –probably erroneous- reference to 2 cases of labor exploitation for 2018 whereas the official statistics quoted here mention 1 such case. Moreover, Greece provided data for 2019 which are not in the Hellenic Police website: “Hellenic Police brought to justice (public prosecutor) (3) cases and eight (8) perpetrators of THB for forced begging and rescued eighteen (18) victims of THB,” which implied that in 2019 no case for labor trafficking was brought to justice.

The Committee of Ministers is requested to note that since 2014 there are no statistics for the number of victims assisted and of victims issued prosecutor decrees (which guarantee them with a special residence and work permit as trafficking victims in Greece until the time of the trial).

Since 2012 a considerable number of operations reported concerned labor trafficking (as opposed to none through 2011), including in 2013 the Chowdury and others case with 42 victims: however, the majority of them concerned begging and not labor.

There is an overall dramatic decline in the number of networks dismantled, of perpetrators charged and of victims involved. In the last three years 2017-2019 only one labor trafficking network was dismantled and it consisted of a mere 3 traffickers and 1 victim. Finally, the average annual number of sex trafficking victims identified since 2013 is a mere 35 as opposed and around or above 100 in most previous years.

Year Networks dismantled (of Perpetrators of Victims (of which for Victims assisted Prosecutors’ which for labor trafficking: trafficking (of which for labor trafficking: decrees begging - other) labor trafficking: begging - other) (of which for labor begging - other) trafficking) 2003 49 284 93 28 28 2004 65 352 181 46 25 2005 60 202 137 57 20 2006 70 206 83 39 34 2007 41 121 100 35 17 2008 40 162 78 36 16 2009 66 303 125 121 69 2010 62 246 92 64 30 2011 41 220 97 51 9 2012 46 171 94 (25) 39 8 2013 37 142 (40: 14 - 26) 99 (61: 6 - 55) 24 43 (35) 2014 36 (6: 4 - 2) 125 (17: 7 - 10) 64 (16: 11 - 5) n.a. 7 2015 32 (6: 3 - 3) 117 (20: 9 - 11) 50 (20: 9 - 11) n.a. n.a. 2016 25 (7: 4 - 3) 97 (18: 8 - 10) 46 (20: 11 - 9) n.a. n.a. 2017 21 (1: 1 - 0) 147 (1: 1 - 0) 38 (3: 3 - 0) n.a. n.a. 2018 27 (1: 0 - 1) 128 (3: 0 - 3) 30 (1: 0 - 1) n.a. n.a. Total 718 3023 1407 540 (2003-2013) 306 (2003-2014)

5 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. c. Current developments

The situation in Manolada (where Chowdury and others were victims of human trafficking) is monitored inter alia by the “Manolada Watch” project of the NGO Generation 2.0 with several reports every year. In the most recent March 2020 report it is stated inter alia:

As we have been informed from different sources, the camps are still in the same condition. They consist of makeshift huts, enhanced with layers of nylon that is used in greenhouses, for protection, there is no water supply and the needs are covered by small tanks, the showers and toilets remain outside and they are still makeshift. Each hut continues to accommodate approximately 10 to 20 people, depending on its size. There is no provision for immediate additional measures. There is no provision for immediate additional measures when it comes to housing conditions. In particular, the Directorate of Health and Social Welfare of the Region of Western Greece stated that this category of population (land workers) does not fall within its responsibility but within the responsibility of the Municipality. Moreover, the region has not received any formal information, in the context of the announcement of the prevention measures concerning the pandemic disease, to take action on her part. The Municipality of Andravida- Kyllini has not provided for measures, since it does not have the necessary funds and resources, and, also, has not received any specific instructions from the Central Administration on how the Municipality could implement measures to improve housing conditions.

There are several other areas around Greece where land workers face similar situations of labor exploitation including inadequate living conditions and occasional use of force against them. They are usually referred to in as the “other labor Manolades.” In the most recent example, on 2 February 2020, In.gr reported on an “Outburst of anger by migrants in Marathon against the new labor Manolades,” an incident on 27 January 2020 where a land owner in Marathon shot at two migrants from India who were refusing to go to work because they had not been paid for work they had done: hundreds of migrants from India and Pakistan live there in conditions similar to the ones in Manolada. As denounced by the General Confederation of Workers in Greece (GSEE) on 28 January 2020, “the GSEE has repeatedly sounded the alarm for the “labor Manolades” that still prevail throughout the country, demanding strict controls on working conditions and wages, as well as the investigation of possible racist motives in cases of offenses against the core of human existence and dignity.”

4. UN Committee Against Torture (CAT) on human trafficking in Greece

In UN CAT’s August 2019 Concluding observations on the seventh periodic report of Greece, it is mentioned inter alia (emphasis in the original):

Human trafficking

50.While taking note of the information provided by the delegation on the State party’s efforts to combat trafficking in persons, the Committee remains concerned at the slowness of the screening procedures to identify potential victims, especially among asylum seekers and migrants. It is further concerned about the lack of progress in the investigation into the whereabouts of over 500 children, mostly Albanian Roma street beggars, who had been rounded-up by the police in Athens prior to the 2004 Athens Olympics and disappeared from Agia Varvara, a state-run care home. The Committee regrets to learn that between 2005 and 2014 the case was reopened twice and both times closed due to lack of evidence (arts. 2 and 16).

51. The State party should:

(a) Intensify its efforts to prevent and combat trafficking in human beings, including by putting in place effective procedures for the identification and referral of victims among vulnerable groups, such as asylum seekers and migrants, including unaccompanied minors;

6 DH-DD(2020)410: Rule 9.2 Communication from an NGO in the Chowdury and others v. Greece. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. (b) Enhance the efforts to investigate claims of human trafficking, including past cases of trafficking for purposes of labour exploitation, and prosecute perpetrators and ensure that victims of trafficking obtain compensation;

(c) Ensure access to adequate protection and support for all victims of trafficking, especially secure shelters and counselling services.

5. Greek Helsinki Monitor recommendations to the Committee of Ministers

1. Welcome the Court of Cassation annulment of the domestic judgment related to the Chowdury and others case and ask for its dissemination as largely as possible among prosecutors and judges, perhaps with an explicative circular by the Prosecutor of the Court of Cassation so that judicial officials do not again search for the existence or absence of consent when investigating cases of human trafficking, be they for labor exploitation or for sexual exploitation.

2. Ask for any action taken to bring to justice the trafficker related to the L.E. v. Greece case or offer an explanation why no such action was ever taken.

3. Recommend that the minimum sentences for the crimes of human trafficking (as well as torture) prescribed by law revert to the higher levels existing before the introduction of the new Criminal Code and that the possibility to apply mitigating circumstances is either excluded or thoroughly revised in a way that will prevent the systematic conversion of all prison sentences for such acts into non-custodial sentences, so that such acts are appropriately punished in line with the ECtHR case law.

4. Urge for the provision of information about the way the Greek judicial authorities interpret and implement the legislation criminalizing human trafficking for both labor and sexual exploitation and the transmission of examples of judgments from which conclusions could be drawn about the implementation of the relevant legislation.

5. Ask for case by case statistics on convictions –with corresponding sentences and their possible suspension and/or conversion to fines- only when based on the violation of the specific trafficking articles 323A (and 351 in the old Criminal Code) that in theory carry felony prison sentences (above 5 years), as in many cases traffickers end up being convicted for lighter crimes.

6. Request for information on the prosecution and punishment of the 3,023 persons reported in the police statistics as perpetrators of trafficking between 2003 – 2018.

7. Seek information on the hundreds of victims reported in the police statistics and how many of them and how effectively were integrated in Greek society and/or did show up at the respective trials for which special residence permits were granted to them and/or were proved effective legal aid that the authorities claim is available.

8. Provide information on the reasons for the dramatic decline in recent years in the numbers of human trafficking operations, of perpetrators charged, and of victims identified and granted protection.

Yours faithfully

Panayote Dimitras Executive Director Greek Helsinki Monitor