Day 4: "Evidence tainted by torture in law and practice - Domestic perspectives from the European Union"

Welcome to Day 4!

During the Online Discussion, taking place in the week of 21-25 February 2022, we will publish the written contributions of a number of renowned experts on selected topics concerning the inadmissibility of evidence tainted by torture. We recommend visiting the Online Discussion page this entire week to read diverse perspectives!

Today you can read the contributions of Zoi Anna Kasapi,Centre for European Constitutional Law, Krassimir Kanev, Bulgarian Helsinki Committee and Balázs Tóth, Hungarian Helsinki Committe. Amongst others, our contributors highlight the law and practice governing the exclusion of evidence in their national contexts, namely in Greece, Bulgaria and Hungary.

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Disclaimer: The content of the contributions represents the authors’ individual experience and perspective. The opinions stated in these articles are the authors’ own and do not reflect the views of ODIHR or the LBI-GMR.


This blog attempts to analyse the legislative, practical, and policy factors linked to the observed culture of impunity within the Greek criminal justice and law enforcement system in cases involving alleged torture and ill-treatment perpetrated by police officers. By doing so, it will illuminate a potential path for tainted evidence to find their way into the criminal proceedings.

The legislative framework

The Greek legislative framework contains a number of provisions prohibiting torture and ill-treatment. As an European Union (EU) and Council of Europe Member State, Greece is subject to the relevant provisions of the EU Treaties, the Charter of Fundamental Rights, the relevant secondary EU law, as well as to the European Convention on Human Rights (ECHR) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Greece has also ratified the UN Convention Against Torture and its Optional Protocol, which establishes a system of regular visits to places of detention by independent observers.

In addition to the safeguards established in international and regional instruments, domestic laws prohibit torture and mandate the punishment of its perpetrators, starting with article 7 of the Constitution. The Criminal Code and the Code of Criminal Procedure contain specific provisions proscribing the use of torture, bodily harm, and intimidation by officers of the law conducting investigations (whether civilian or military), as well as the use of evidence obtained in such manner in criminal proceedings.

Despite the existence of the above safeguards, the Greek legislative framework has been criticised by both the Council of Europe Committee for the Prevention of Torture (CPT) and the UN Committee Against Torture (CAT) for failing to comply with international standards on the definition and punishment of torture. Although certain amendments to the framework were made in 2019, following CAT and CPT recommendations (e.g., the inclusion of a provision on the punishment of torture performed with a discriminatory motive), a number of concerns in relation to the effective and appropriate prosecution and punishment of torture were left unaddressed.

First, the newly amended Criminal Code introduces an arbitrary distinction between different types of torture, and reduces the maximum sentence allowed under the previous framework. Under the new law, torture performed “systematically”, using certain specific methods (electroshock, mock executions, etc.), incurs a prison sentence of a minimum of ten years, whereas “ordinary” torture incurs a prison sentence of up to ten years. This is a distinction with great practical significance, both in terms of the actual time served in the vast majority of cases involving torture, and in terms of the applicable rules on commuting prison sentences. It is worth noting that both these sentences constitute a regression from the previous framework, which provided for a prison sentence of up to twenty years and did not distinguish between different types of torture. Second, in addition to allowing the conversion of prison sentences for torture into non-custodial sentences, Greece also continues to apply limitation periods to the prosecution of torture, despite being strongly urged by international actors to abolish them.

Practical Barriers

While Greek authorities consistently refute allegations on the widespread use of torture and ill-treatment against persons in police custody, the CPT has recorded a multitude of suspect or confirmed incidents and considers the indications that such actions systemically take place as “overwhelming”. It has, thus, urged Greece to take concrete action, going as far as warning to set in motion the procedure of Article 10, paragraph 2 of the Convention, and issue a statement publicly condemning the State’s practices (see the CPT Report on its visit to Greece from 28 March to 9 April 2019).

The CPT has highlighted the following key areas of concern:

  • Inadequate investigations, which are not carried out promptly, expeditiously or thoroughly;
  • Ineffective mechanisms for the gathering of forensic medical evidence in instances of alleged torture; and
  • Systematic conversion of all prison sentences into non-custodial sentences.

Similar concerns have been raised by the CAT, in the context of its concluding observations on the seventh periodic report of Greece. Despite the CAT specifically requesting it, Greece has failed to provide complete information on the number of complaints of torture or ill- treatment, the corresponding investigations and prosecutions, or disciplinary action taken against the offenders, including their removal from public service pending the outcome of the investigations against them. Greece has also failed to provide any examples of cases dismissed by the courts due to the submission of evidence or testimonies/confessions having been obtained through torture or ill treatment.

The above mentioned legislative deficiencies and problematic practices in relation to the investigation and prosecution of torture perpetrated by law enforcement officers have led to the establishment of a culture of impunity, as observed by the CPT and corroborated by a number of convictions by the European Court of Human Rights for lenient sentencing and ineffective investigations (see cases of Zontul and Makaratzis, among others). This culture leaves open the possibility of evidence obtained through torture to be used in criminal proceedings, especially in cases involving migrants, Roma, and other vulnerable groups.

Policy barriers - The National Mechanism

Despite the fact that it does not officially acknowledge the issues raised above, the Greek State has established a “National Mechanism for the Investigation of Arbitrary Incidents by Law Enforcement and Prison Officers” within the Ombudsman’s Office. The Mechanism began its operation in June 2017 with a mandate to collect, record, assess and further transmit to the competent bodies complaints about the actions of law enforcement officers regarding a) torture and other violations to human dignity; b) intentional and unlawful violations against life, physical integrity, health, personal or sexual freedom; c) unlawful use of a firearm; or d) racial or hate-motivated crimes.

On the basis of his mandate as the Mechanism, the Ombudsman evaluates complaints and may decide to either investigate them himself, refer the incident to the competent disciplinary body and oversee the investigation, or inform the state prosecutors, if there are indications of criminal liability. Moreover, the Mechanism follows up on the implementation of relevant judgments by the European Court of Human Rights, and may order the re-opening of investigations pursuant to the finding of a violation of article 3 ECHR.

The Mechanism examines a large number of cases within its mandate (321 cases in 2017-18, 208 cases in 2019, 263 cases in 2020) and has reverted approximately half of these to the competent disciplinary bodies for supplementary evidence, corrections, re-evaluation of evidence, reasoning or outcome, and lack of compliance with substantive or procedural rules. Nevertheless, a number of barriers related to the scope of its mandate and the resources available to it render the Mechanism largely ineffective. The Mechanism does not have the power to compel action by the police but can only make recommendations, which are oftentimes ignored. In addition, it lacks the necessary capacity to properly oversee the disciplinary proceedings or to investigate cases on its own, as the posts envisaged in the law establishing it were never filled and its work is carried out by the Ombudsman’s non-specialised personnel.

In November 2019, the Minister for Citizen Protection, pressed by the outcry caused by a surge in public displays of police brutality – often filmed by citizens - established an independent “unofficial” Committee, tasked with observing the implementation of the Mechanism’s recommendations by the police. The Committee submitted a report to the Greek Parliament, confirming:

  • The culture of impunity for law enforcement officers involved in incidents of violence and ill- treatment;
  • The unwillingness of the police to collaborate with the Mechanism, as evidenced by the constant delays in delivering requested documents and information;
  • Deficiencies in the exercise of investigative duties by the police, such as neglecting to take depositions from material witnesses, including the doctors who were charged with the care of the victims, or to ask key questions;
  • The existence of bias in the investigations performed by the disciplinary bodies, demonstrated by the fact that “strikingly similar” statements made by the police officers involved in the incidents were accepted without question and awarded much greater weight than the statements made by citizens usually are; and, finally,
  • The incomplete or faulty reasoning of disciplinary decisions, in particular in relation to the investigation of potential racist motives.

The report concluded on a number of recommendations to the Minister, including the establishment of the Committee as a permanent, independent body, and the reinforcement of the National Mechanism. However, the Committee was disbanded shortly after the submission of its report.


The above points paint a clear albeit grim picture on the use of torture and ill-treatment by the Greek police. The systematic resort to these methods during the initial stages of the criminal investigation, to coerce confessions, obtain information or plainly intimidate – often vulnerable – suspects, accused persons or witnesses, combined with the apparent absence of examples of cases dismissed by the Greek courts on these grounds, leads to the inevitable conclusion that evidence obtained through torture often seeps through the cracks of the Greek criminal justice system and is potentially used to convict persons accused of crimes.

Zoi Anna Kasapi (LL.M.), Greek lawyer and scientific officer at the Centre for European Constitutional Law

Zoi Anna Kasapi (LinkedIn) regularly contributes to the work of the European Union Agency for Fundamental Rights, through the multidisciplinary research network FRANET. Her work focuses in the areas of justice and fundamental rights.


Ill-treatment by the police during arrest and inside the police stations is widespread in Bulgaria. Over the past seven years the Bulgarian Helsinki Committee conducted several surveys on representative samples of prisoners about their experiences during pre-trial proceedings. According to the most recent survey conducted in the period June-November 2021 on a representative sample of 1 010 convicted prisoners from all the prisons in Bulgaria, whose pre-trial proceedings started after 1 July 2019, 24% of the respondents stated that physical force had been used against them during arrest and 21% - that such force had been used against them inside police custody during their 24-hour police detention. Two representative surveys among prisoners, conducted in the period 2015-2017 came up with very similar results. The European Court of Human Rights (ECtHR) has pronounced dozens of judgments against Bulgaria relating to ill-treatment of detainees, some of which resulted in their death. In March 2015, the European Committee for the Prevention of Torture (CPT) issued a public statement concerning Bulgaria in which it stated that “men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning” (CPT/Inf (2015) 17, § 5).

While the use of proportional force during arrest may be justified in some cases, its use in the police station is very hard to justify. In-depth interviews with prisoner -victims of ill-treatment by the police reveal its methods. In most of the cases police operatives beat up detainees with fists, kicks, truncheons and other hard objects all over the body. Occasionally, they use more “sophisticated” methods, e.g., generators of electricity, connected to their immobilized fingers with wires. The interviews also reveal its purpose, which in most cases is to obtain information: either self-incriminating confessions or information about the involvement in the particular crime of third parties.

Police detention and “explorative interviews”

Under the Bulgarian law, the 24-hour police detention is not part of the criminal proceedings and, in theory, the self-incriminating statements of the detainees cannot be included in the criminal file and cannot be relied on by the court for conviction. But in 2018 the ECtHR found a violation of Article 6 §§ 1 and 3 © of the Convention in the case Dimitar Mitev v. Bulgaria where a detainee was questioned without the presence of a lawyer by police operatives to whom he made a confession. The operatives were subsequently questioned by the court in the criminal proceedings against him and their testimonies served as a basis for his conviction.

According to the Ministry of Interior Act (MIA), police may detain a person for 24 hours if there is data that he/she had committed a criminal offense. Such a person however is not considered a “suspect” within the meaning of the EU Roadmap directives by the Bulgarian law and doctrine, which are thus deemed inapplicable to police detention. This is why the safeguards they envisage are not implemented at that stage. In the 2021 survey, more than 61% of the respondents stated that they did not have a lawyer at all during their 24-hour police detention. Another 22% stated that they had a contact with a lawyer at the end of this detention when the latter came to participate in the opening of the formal investigation. Thus, more than 83% of the respondents said that they did not have effective participation of a lawyer during their police detention.

Though not part of the formal criminal proceedings, the 24-hour police detention in Bulgaria is the period when most of the evidence against the detainees is gathered. Article 10, para. 1 of the MIA provides for the possibility of the police operatives to conduct “explorative interviews” with the detainees. Although the statements obtained during these interviews (often under torture or other forms of coercion) cannot be used as such in the subsequent formal criminal proceedings, the evidence derived as a result is valid if properly processed. E.g., the operatives torture a detainee to confess a theft and ask where he/she hid the stolen items. After confession, they conduct a search in the framework of the formal criminal proceedings. The items found are valid evidence, which can be relied on by the court in the subsequent proceedings. Moreover, faced with the high probability of a conviction, the detainee repeats the confession obtained during the “exploratory interview” after the opening of the formal criminal proceedings in order to get a more lenient treatment and sentence and refrains from complaining against his/her torturers.

Concluding remarks

The problem with the use of evidence obtained through torture and other forms of coercion in Bulgaria is serious. It is multi-dimensional, rooted in the legislation, in the established methods to investigate crimes, in the attitudes of the law-enforcement officials, as well as in those of the public in general. It has to be dealt with in all of these fields. As a first step, all actions involving a person detained by the police should be made part of the formal criminal proceedings with all the necessary safeguards. No “exploratory interview” should be allowed without the presence of a lawyer. There should be systematic video recording of interrogations of suspects by the police, as well as obligatory medical checks by an independent doctor upon police detention. There should also be a wider legislative prohibition on the use of derivative evidence, obtained through any form of ill-treatment. All this requires a comprehensive reform of the legislation. Despite repeated recommendations by the CPT, the UN Committee against Torture and other international bodies, this has not happened yet and there does not seem to be sufficient political will to implement such a reform at present.

The oversight of police detention by independent monitors should also be strengthened. The National Preventive Mechanism in Bulgaria is a modest operation, insufficiently staffed and poorly funded. It does not have the capacity to visit all police stations in Bulgaria, as well as other places of detention where it can obtain information on police ill-treatment. Human rights NGOs should be allowed to visit places of police detention and carry out effective monitoring. A good practice is the establishment of independent complaint boards against unlawful actions by the police at the level of each territorial police department.

Krassimir Kanev, Director of the Bulgarian Helsinki Committee

The Bulgarian Helsinki Committee is a human rights NGO based in Sofia, Bulgaria. Krassimir Kanev has published extensively on torture prevention and in capacity building of civil society to monitor closed institutions in Bulgaria and in other countries of Europe, Central Asia and the Middle East.

As in the case of so many other issues, the Hungarian law is in compliance with the basic international human rights requirements with regard to evidence obtained by torture as well. The Criminal Procedure Act provides that facts derived from evidence obtained by the court, the prosecution service, the investigating authority or any other authority by means of a criminal offence, by other prohibited means or by substantial violation of the rights of the participants in criminal proceedings shall not be admissible as evidence. And even though the concept of torture is not defined and consequently not penalized in the domestic Criminal Code, coercive interrogation is defined as an official applying violence, threats, or using other similar methods with the aim of extracting a confession or declaration, or forcing a person not to make one, and that is sanctioned by the criminal law. This is an acceptable formulation of criminalizing the obtaining of evidence by torture, although with different wording than the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Were it not for the concept of coercive interrogation included in the Criminal Code, the exclusionary provision would still apply to any act of torture as understood by the relevant international human rights bodies, since any kind of torture unquestionably constitutes a substantial violation of the rights of the participants in criminal proceedings.

Evidence obtained via torture can be excluded (i) if the respective officials have been already convicted for the coercive interrogation; (ii) if the defendant or the witness already reported the ill-treatment or coercive interrogation, but the criminal procedure is ongoing and no indictment or judgment has been reached yet; and (iii) the judge can exclude evidence even if the defendant or the witness himself/herself does not claim that he/she was ill-treated, but the judge comes to this conclusion ex officio. The typical version of the latter case is when a defendant alleges in the judicial phase of the criminal procedure that his/her statement or confession was obtained by force and therefore should be excluded from the evidence. In such a case the judges usually summon all those police officers, prosecutors or others who were present at the hearing where the defendant allegedly was subjected to torture, who will be obliged to testify under the penalty of perjury. In addition, the judge might turn to the head of the given police authority and request information about any internal investigation carried out into the circumstances of the interrogation. Based on these pieces of information, the judge shall decide whether to exclude the given evidence or not.

This means that in an ideal reality it could never happen that evidence obtained via any kind of torture would be used in a criminal procedure in Hungary. If we were to rely only on statistics, they would show that coercive interrogation is almost non-existent in this country. Between 2016 and 2020, 174 reports for coercive interrogation were rejected, and 369 investigations were terminated. The number of indictments submitted during this five-year period was 8, all of which happened in the same year, in 2017. This means that according to the official evaluation of the reports into such cases, 98.5% of the reports are unfounded, and in four out of five years’ coercive interrogation did not take place at all in Hungary. As for the judgements, between 2016 and 31 August 2021, there were 9 convictions and 3 acquittals altogether, however, in the last five years of that six-year period the total number of convictions was 3.

This means that in a country of ten million people and hundreds of thousands of crimes per year, the average number of coercive interrogations is close to zero. Considering that number, one should not be surprised that the area of exclusion of evidence obtained through torture is virtually non-researched at all. It is reasonable to assume that in a country where years can pass by without a single conviction for coercive interrogation, nothing meaningful could be found by only analysing the decisions excluding evidence obtained by torture; and researching cases where allegations of torture were made (or should have been made) by the defence but were dismissed by the judge would pose multiple methodological difficulties.

What can be reasons for the rare occasions of successful investigations into coercive interrogation cases?

As shown by the judgments of the European Court of Human Rights, it is a recurring issue in Hungary that investigations into police ill-treatment, conducted by the prosecution service, are not effective. Shortcomings identified in this regard include not hearing the victim, the suspected police officers or witnesses; and the lack of genuine efforts by the authorities and/or the courts to resolve contradictions between testimonies and medical reports. But, as the Hungarian Helsinki Committee has also repeatedly raised in its communications submitted to the Committee of Ministers of the Council of Europe with regard to the non-implementation of said judgments, there are many more factors that contribute to this phenomenon. Here is a short list of the most pressing ones:

  • Installing recording devices in all police detention facilities is still not obligatory. The lack of such a legal obligation resulted in the fact that as of February 2020, there were only 114 cameras recording in the 297 custody suites in the country.
  • Police vehicles are not equipped with operational image and sound recording devices in adequate numbers, and police body cameras are rare exceptions. As of October 2021, only 1.4% of all police vehicles were equipped with recording devices capable of recording both image and sound, and there were only 70 body cameras in the whole country.
  • Video recording of interrogations is not obligatory and can only be initiated if the defendant advances the costs of that. In practice, in most of the interrogation facilities it would technically be almost impossible to carry out the proper recording of the interrogations and covering the costs of it might also be difficult for indigent defendants.
  • Victims of alleged police abuse are not examined by an independent doctor with training in forensic medicine, and it is not obligatory to take photographs of the injuries.
  • As a rule, medical examinations (whether they are carried out in police establishments or in hospitals) are conducted in the presence of police staff, many of whom may have committed the abuse.

In light of all these shortcomings, it is no wonder that reports are mostly unsuccessful, and investigations rarely lead to indictments and convictions. Accordingly, the rule on excluding torture-tainted evidence can be rarely applied by the courts on the basis of an ongoing criminal procedure against the police officers or on the basis of their conviction.

It is of no avail either that coercive interrogation can be reported by anybody (i.e. not just the person who was subject to torture), as these acts mostly happen out of sight of third persons. Neither is the explicit obligation of officials to report and initiate a criminal procedure if they become aware of a criminal offence, since the loyalty among police officers seems to be most often stronger than the sense of legal obligation.

Regarding a lack of evidence corroborating the occurrence of torture, it does not help either that procedural or evidentiary rules – i.e. level of certainty required for the decision to exclude an evidence – do not complicate the issue, as there is no separate procedure or evidentiary rule pertaining to the exclusion of evidence. Without evidence, even the best judge cannot make a good decision, even if the legal system makes it easy for them to do so from a procedural point of view.

Balázs Tóth, attorney-at-law, Hungarian Helsinki Committee

Balázs Tóth (LinkedIn) has been working for the Hungarian Helsinki Committee since 2004 (Facebook- HHC). Since 2014 he has also been a journalist and lawyer for the investigative online portal, the (Facebook-atlatszo). He is the coordinator of several research projects and author of more than 30 academic publications.

Balazs Toth

Thank you Zoi, Krassimir, and Balázs for contributing to this forth day of the Online Discussion “The Inadmissibility of Evidence Tainted by Torture” with your interesting contributions!

We would like to invite also others to share any thoughts on other practical challenges, but also promising practices or success stories from your countries.