On January 17, 2012, the European Court of Human Rights (ECtHR) issued a breakthrough ruling in light of CJA’s efforts to procure legal recognition for the principle that rape by state actors is torture. The court held that Greece violated international law when it denied proper legal recourse to Necati Zontul, a gay asylum-seeker who was brutally raped by Greek coastguard agents while being held in immigration detention.
On July 5, 2010, CJA filed an amicus brief (“written comments” in ECtHR parlance) in Zontul v. Greece. Although the ECtHR has a substantial body of jurisprudence prohibiting sexual orientation discrimination, this was the first case before the Court to address torture and discrimination on account of the victim’s sexual orientation.
The applicant in the case, Mr. Necati Zontul, was a Turkish national who was raped and beaten by officers from the Greek Coastguard while in immigration detention in June 2001. Mr. Zontul was one of 164 migrants placed in detention after a boat carrying the migrants was intercepted by the Greek Coast Guard and escorted to Crete. The detention environment was harsh, and several of the migrants suffered physical abuse. One Coast Guard cornered Mr. Zontul in a bathroom, forced him to remove his clothing, and raped him with a baton, while another official guarded the toilet door throughout the attack. Mr. Zontul believes that the officials targeted him for this aggravated form of torture because of his homosexuality. While Mr. Zontul and other detained migrants complained about their abuse, Greek authorities failed to properly investigate. Mr. Zontul was not kept informed of the proceedings, and he was accordingly denied the opportunity to participate in the trial and appeal. In addition, he was not initially provided with a Turkish-speaking court interpreter and so chose not to testify on that occasion.
“The events of 2001 made me feel terrible, psychologically and emotionally. Now I feel much stronger because my case is progressing and because my true story is being told.”
The Coast Guard official responsible for the violence was not prosecuted for rape; for “insults to human dignity,” and the Appellate Martial Court in Greece determined that the rape did not constitute torture. The official received a very lenient sentence of only six month’s suspended imprisonment with the possibility of conversion into a financial penalty.
Not only did he receive a disproportionately mild sentence for his conducts, but he has not to our knowledge served any time in prison,
and he has retained his position and rank within the Coast Guard. In response to this miscarriage of justice, Mr. Zontul, with the help of the U.K. based human rights organization REDRESS, filed a complaint in April 2008 before the ECtHR against the government of Greece.
» See more information about his application here.
In June 2010, the President of the ECtHR granted CJA the rare opportunity to intervene in this case as a third party and to offer expertise on several pressing legal issues. Our brief provided a comparative analysis of international jurisprudence recognizing that sexual violence, including rape with an object, is torture, and that even a single act of rape can amount to torture. In addition, we argued that there are specific human rights protections that apply to sexual minorities, such as the European Convention on Human Rights’ prohibition against torture and discrimination. We concluded that the Greek officials’ torture of Mr. Zontul and the Greek authorities’ subsequent failure to investigate the torture, particularly as motivated by his sexual orientation, violated these protections. In support of this argument, CJA extended ECtHR’s jurisprudence on racially-based discrimination to support the prohibition of discrimination based on sexual orientation.
Finally, we argued that for sentencing purposes, international and national trends indicate that States must treat crimes motivated by bias relating to sexual orientation as an aggravating circumstance. A recent survey of national legislation demonstrated growing consensus around the importance of protecting sexual minorities’ rights, putting an end to violent intolerance, and enforcing States’ responsibilities to protect their citizens.
With these cogent and forward-looking arguments, our intervention fortified Mr. Zontul’s claims and placed them squarely within developing human rights norms and standard international practice.
In a ruling on January 17th, 2012, the ECtHR held that rape of a detainee by state agents is indeed torture under international law. The court cited the ample case law detailed in our brief. The Court ordered Greece to pay €50,000 in redress and found that Greece had breached Article 3 of the European Convention on Human Rights in four respects. First, the Greek courts failed to recognize the rape as torture. Second, the Greek authorities failed to conduct an adequate investigation by denying
Zontul a medical examination after the assault. Third, the €800 fine imposed was an inadequate deterrent for the serious crime of torture. And finally, by ignoring Zontul’s request for information on the progress of his case, the Greek courts deprived him of his right to seek compensation and to participate in the proceedings.