EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 34373/97

Christos Goutsos

against

Greece

REPORT OF THE COMMISSION

(adopted on 3 March 1999)

I. INTRODUCTION

(paras. 1-16) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-11) .................................................... 1

C. The present Report

(paras. 12-16) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-21) ....................................................... 3

A. The particular circumstances of the case

(paras. 17-20) .................................................. 3

B. Relevant domestic law

(para. 21) ...................................................... 3

III. OPINION OF THE COMMISSION

(paras. 22-41) ....................................................... 6

A. Complaints declared admissible

(para. 22) ...................................................... 6

B. Points at issue

(para. 23) ...................................................... 6

(paras. 24-34) .................................................. 6

CONCLUSION

(para. 35) ...................................................... 8

(paras. 36-38) .................................................. 8

CONCLUSION

(para. 39) ...................................................... 9

(paras. 40-41) .................................................. 9

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ................... 10

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Greek citizen, born in 1949 and resident in Petrupoli , Attiki .  He was represented before the Commission by Mr P. Bitsaxis , a lawyer practising in Athens.

3 . The application is directed against Greece.  The respondent Government were represented by their Agent, Mr L. Papidas , President of the Legal Advisory Council of the State ( Nomiko Simvulio tu Kratus ), by Mr V. Kontolemos and subsequently Mr M. Apessos , Senior Advisers ( Paredri ) of the Legal Advisory Council of the State, as well as by Mr K. Georgiadis , Legal Assistant ( Dikastikos Antiprosopos ) of the Legal Advisory Council .

4 . The case concerns the fairness of the proceedings relating to the applicant's compensation claim for his detention and the availability of effective remedies in this connection.  The applicant invokes Articles 6 para. 1 and 13 of the Convention .

B. The proceedings

5 . The application was introduced on 12 December 1996 and registered on 8 January 1997.

6 . On 10 September 1997 the Commission (First Chamber) decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 25 November 1997, after an extension of the time-limit fixed for this purpose.  The applicant replied on 15 February 1998.

8 . On 16 April 1998 the Commission declared the application admissible.

9 . The text of the Commission's decision on admissibility was sent to the parties on 28 April 1998 and they were invited to submit further observations. The applicant submitted his observations on 21 May 1998 and the Government theirs on 1 June 1998.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

11 . Pursuant to the entry into force of Protocol No. 11 to the Convention the application was transferred to the Commission sitting in plenary.

C. The present Report

12 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13 . The text of this Report was adopted on 3 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

14 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15 . The Commission's decision on the admissibility of the application is annexed hereto.

16 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17 . On an unspecified date towards the end of 1992, criminal proceedings were instituted against the applicant in Iraklio for fraud. On 3 November 1993 the investigating judge ordered the applicant's detention on remand. On 17 December 1993 the investigating judge ordered the applicant's release on bail. The applicant was released on 21 December 1993.

18 . On 29 March 1996 the applicant appeared, together with a number of co-defendants, before the three-member Court of Appeal ( trimeles efetio ) of Crete, which was competent to hear the case at first instance because of the nature of the charges. Having heard evidence from both sides as well as the parties' final submissions on the question of the applicant's and his co-defendants' guilt, the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict some of the co-accused.

19 . According to the minutes of the trial hearing, the relevant decision was pronounced on 1 April 1996.

20 . On 2 April 1996 the court heard submissions on the sentences to be imposed on the applicant's co-defendants who had been found guilty. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that "the applicant should not be compensated for the time he spent in detention on remand". The relevant decision was pronounced on the same day. It was "finalised" on 18 June 1996.

B. Relevant domestic law

21 . The Code of Criminal Procedure provides as follows:

Article 533 para. 2

"Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained."

Original

Άρθρο 533 παρ. 2

«Όσοι κρατήθηκαν προσωρινά και κατόπιν αθωώθηκαν ... έχουν το δικαίωμα να ζητήσουν αποζημίωση .... αν από την διαδικασία προέκυψε ότι δεν τέλεσαν την αξιόποινη πράξη για την οποία κρατήθηκαν προσωρινά ή ότι δεν υπάρχει γι’ αυτό κάποια βάσιμη ένδειξη.»

Article 535 para. 1

"The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention."

Original

Άρθρο 535 παρ. 1

«Το δημόσιο δεν έχει υποχρέωση για αποζημίωση αν εκείνος που … κρατήθηκε προσωρινά έγινε από πρόθεση ή βαριά αμέλεια υπαίτιος της … προσωρινής κράτησης.»

Article 536

"1.  Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State's obligation to pay compensation in a separate decision delivered at the same time as the verdict.  However, the court may also make such a ruling proprio motu . ...

2.  The ruling on the State's obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed."

Original

Άρθρο 536

«1. Σχετικά με την υποχρέωση του δημοσίου για αποζημίωση αποφαίνεται το δικαστήριο που εξέδωσε την απόφαση για την υπόθεση, με ιδιαίτερη ταυτόχρονη απόφαση, ύστερα από προφορική αίτηση εκείνου που αθωώθηκε.  Μπορεί όμως να ενεργήσει έτσι και αυτεπαγγέλτως. …

2. Η απόφαση για την υποχρέωση αποζημίωσης δεν προσβάλλεται αυτοτελώς με ένδικο μέσο και παύει να ισχύει με την εξαφάνιση της απόφασης για την κύρια ποινική υπόθεση.»

Article 537

"1.  A person who has suffered loss may seek compensation at a later stage from the same court.

Original

Άρθρο 537

«1. Εκείνος που ζημιώθηκε μπορεί να υποβάλει και αργότερα την αίτησή του για αποζημίωση στο ίδιο δικαστήριο.

2. Στην περίπτωση αυτή η αίτηση παραδίδεται στον εισαγγελέα του δικαστηρίου αυτού μέσα σε ανατρεπτική προθεσμία σαράντα οκτώ ωρών από την απαγγελία της απόφασης στο ακροατήριο.»

Article 539 para. 1

"Where it has been decided that the State must pay compensation, the person entitled thereto may bring his claim in the civil courts, which shall not call in question the existence of the State's obligation."

Original

Άρθρο 539 παρ. 1

«Αφού αναγνωριστεί η υποχρέωση για αποζημίωση από το δημόσιο, ο δικαιούχος μπορεί να εγείρει αγωγή στα πολιτικά δικαστήρια, που δεν μπορούν να εξετάσουν πάλι την ύπαρξη αυτής της υποχρέωσης.»

Article 540 para. 1

"Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention.  They must also be compensated for non-pecuniary loss..."

Original

Άρθρο 540

«1. Αντικείμενο της αξίωσης για αποζημίωση είναι κάθε ζημία που προκλήθηκε από την ολική ή μερική εκτέλεση της … προσωρινής κράτησης στην περιουσιακή κατάσταση εκείνου που άδικα κρατήθηκε προσωρινά ή καταδικάστηκε.  Αναγνωρίζεται επιπλέον σ’ αυτόν και χρηματική ικανοποίηση της οποίας το ποσό καθορίζεται κατά την κρίση του δικαστηρίου …»

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

22 . The Commission has declared admissible the applicant's complaints:

- that the court decided not to compensate him in respect of his detention on remand without hearing him and without providing adequate reasons for its decision; and

- that there exists no effective remedy in this connection.

B. Points at issue

23 . Accordingly, the points at issue are:

- whether there has been a violation of Article 6 para. 1 of the Convention; and

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 6 para. 1 of the Convention

24 . Article 6 para. 1 of the Convention, insofar as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”

25 . The applicant considers that Article 6 para. 1 is applicable and refers in this connection to the Georgiadis v. Greece judgment of 29 May 1997 of the Court (Eur. Court HR, Reports of Judgments and Decisions 1997-III, p. 949).

26 . The applicant is prepared to accept that the decision on his acquittal and the decision on his entitlement to compensation were issued on different dates, the first on 1 April 1996 and the second on 2 April 1996.  However, he does not accept that he was present in court on 2 April 1996. Moreover, the applicant contends that by 2 April 1996 he had lost the right to address his compensation claim directly to the court of appeal.  His trial ended on 1 April 1996 and on that date he ceased being a party to the proceedings.  Under domestic law, once the accused's acquittal has been pronounced, the accused must address his compensation claims to the public prosecutor and not to the court which has acquitted him.  The applicant had a two-day time-limit for doing so.  The court, by taking proprio motu a decision on this matter before this time-limit had expired, effectively prevented the applicant from exercising this right.  In any event, before deciding on his entitlement to compensation, the court was obliged under the Convention to invite him to make observations.

27 . The applicant also submits that the Convention does not allow any room for reasons which "indirectly" transpire from the court's decision.  In any event, he considers that any doubts the court might have had as to his innocence cannot justify on their own the conclusion that he was responsible for his detention.

28 . The Government submit that Article 6 para. 1 of the Convention did not apply to the proceedings at issue.  The applicant did not have a "right" to be compensated, because the courts enjoy unfettered discretion in this connection under domestic law.  The question concerning compensation for detention on remand is not of a "civil" but of a public law nature; the State acts jure imperii and the unlawful character of the detention is not a precondition.  Neither is there a "dispute", since the court may decide proprio motu and the State is not represented at the hearing - the role of the prosecutor not being that of State's counsel.

29 . In any event, the Government submit that the applicant could have been heard if he had so wished and this is what Article 6 para. 1 of the Convention requires.  The applicant had the opportunity to apply for compensation before his acquittal.  Moreover, he had the opportunity to apply for compensation after his acquittal especially since he was present in court on 2 April 1996. However, he chose not to do so.  The proceedings in the applicant’s case were formally concluded on 2 April 1996.  It follows that the decision on his entitlement to compensation was issued on the same day as the decision on his acquittal as envisaged in Article 536 para. 1 of the Code of Criminal Procedure.

30 . Finally, the Government contend that the court refused the applicant compensation because it must have considered that he had been responsible for his own detention.  As it indirectly transpires from the court's decision, the reason for the applicant's acquittal was that the court had doubts as to his guilt.

31 . As regards the argument drawn by the Government from the fact that no claim for compensation was ever lodged, the Commission recalls that, according to Article 537 of the Code of Criminal Procedure, the applicant had the right to apply for compensation within forty-eight hours from the delivery of the judgment acquitting him in open court.  However, before the expiry of this time-limit the court decided that the applicant should not be compensated.  This ruling was read in open court on 2 April 1996. According to Article 536 of the Code of Criminal Procedure, it was final.  As a result, the Commission fails to see what useful purpose lodging a claim for compensation could have served given the court of appeal's proprio motu ruling and its final character.  It follows that there was a "dispute" for the purposes of Article 6 para. 1 of the Convention.

32 . The Commission also recalls that the Court in its Georgiades v. Greece judgment of 29 May 1997 found that Article 533 para. 2 of the Code of Criminal Procedure creates a "right" for a person having been detained to claim compensation following his or her acquittal.  It also found that this right is of "a civil character" (op. cit., p. 959, paras. 32 and 34).  The Commission considers that the Government have submitted nothing that would justify departing from these conclusions.  It follows that the question of the application of Article 533 to the applicant's case fell within the ambit of Article 6 para. 1 of the Convention.

33 . As regards compliance with Article 6 para. 1 of the Convention, the Commission notes that the parties do not agree on whether the applicant was present in court on 2 April 1996.  They also appear to disagree as to whether the court, by pronouncing on the applicant’s entitlement to compensation one day after his acquittal, acted in compliance with domestic law which prescribes that such a decision, if taken proprio motu , must be delivered at the same time as the verdict.  However, the Commission considers that these questions are immaterial to the issue under consideration.  The Commission recalls in this connection that the Court in its above-mentioned Georgiades v. Greece judgment considered that no decision on the question of compensation should have been taken without affording the applicant an opportunity to submit to the courts his arguments on the matter.  According to the Court, a procedure whereby civil rights are determined without ever hearing the parties' submissions cannot be considered to be compatible with Article 6 para. 1 (op. cit., p. 960, para. 40).  The Commission considers that the same considerations apply in the present case.  Moreover, it notes that the court's ruling proprio motu on the question of compensation effectively precluded the applicant from making an application himself.  Moreover, it was not open to him to challenge these rulings.  It follows that there has been a violation of Article 6 para. 1 of the Convention in respect of the court of appeal's failure to hear the applicant.

34 . As regards the applicant’s complaint concerning the reasoning of the domestic court’s decision on his entitlement to compensation, the Commission recalls that, according to the Court’s case-law, the extent to which a court’s duty to give reasons applies may vary, inter alia , according to the nature of the decision (see the above-mentioned Georgiades v. Greece judgment, p. 960, para. 43).  However, in the applicant’s case the domestic court did not invoke any reasons for discarding the State's liability for his detention.  It follows that there had been a violation of Article 6 para. 1 of the Convention also as a result of the absence of any reasoning in the decision on his entitlement to compensation.

CONCLUSION

35 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

D. As regards Article 13 of the Convention

36 . Article 13 of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

37 . The applicant submits that, since the domestic court’s decision concerning compensation could not be challenged, no effective remedy under national law for the violation of his rights under the Convention was available to him.  The Government have not made any detailed submissions in this respect.

38 . In view of its findings concerning Article 6 para. 1 of the Convention, the Commission does not consider it necessary to examine the case under Article 13.

CONCLUSION

39 . The Commission concludes, unanimously, that it is not necessary to examine in the present case whether there has been a violation of Article 13 of the Convention.

E. Recapitulation

40 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 35).

41 . The Commission concludes, unanimously, that it is not necessary to examine in the present case whether there has been a violation of Article 13 of the Convention (para. 39).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term « former » refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.