EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 32397/96

Andy Sinnesael

against

Greece

REPORT OF THE COMMISSION

(adopted on 1 July 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-20) 3

A. The particular circumstances of the case

(paras. 16-19) 3

B. Relevant domestic law

(paras. 20) 3

III. OPINION OF THE COMMISSION

(paras. 21-32) 5

A. Complaint declared admissible

(para.  21) 5

B. Point at issue

(para. 22) 5

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

(paras. 23-31) 5

CONCLUSION

(para. 32) 7

APPENDIX :DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 8

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 Belgian citizen, born in 1970 and resident in Kachtem , Belgium. He was represented before the Commission by Mr P. Verbist , 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 ), Mr Ph . Georgakopoulos , Member ( Nomikos Simvulos ) of the Legal Advisory Council of the State, and Mrs K. Grigoriou , Legal Assistant ( Dikastikos Antiprosopos ) of the Legal Advisory Council of the State.

4. The case concerns the fairness of the proceedings relating to the applicant's compensation claim for his detention. The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 25 June 1996 and registered on 24 July 1996.

6. On 9 April 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 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 30 June 1997.  The applicant replied on 12 September 1997.

8. On 3 December 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 18 December 1997 and they were invited to submit such further information or observations on the merits as they wished. No such observations were submitted by the parties.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 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.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 1 July 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to 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.

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

15. 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

16. On 30 May 1993 the applicant was arrested together with J.C.D. and R.R.V. for drug-related offences in Greece. The applicant was placed in detention on remand. On 19 April 1994 the Indictments Chamber of the Court of Appeal of Thrace authorised the applicant's continued detention until 30 November 1994.

17. On 31 October 1994 the applicant and his two co-accused appeared before the three-member Court of Appeal of Thrace ( trimeles efetio ), which was competent to hear the case on first instance because of the nature of the offences. The court found the applicant guilty and sentenced him to 20 years imprisonment. His two co-accused were found guilty as well. They all appealed.

18. The appeal was heard by the five-member Court of Appeal of Thrace ( pentameles efetio ) on 25 January 1996. The court heard the evidence and the parties' submissions on the question of the accused's guilt. Then it withdrew for deliberations, in the course of which it reached the following decision in respect of the applicant: "He must be given the benefit of doubt and be declared innocent and the court must find that he should not be compensated" (" Πρέπει επoμέvως vα κηρυχθεί λόγω αμφιβoλιώv αθώoς τωv πράξεωv για τις oπoίες κατηγoρείται και απoφαvθεί τo Δικαστήριo ότι δεv συvτρέχει περίπτωση απoζημιώσεώς τoυ "). This verdict was read in open court together with the court's verdict concerning J.C.D. and R.R.V. who were found guilty.

19. Then the court heard submissions on the penalty to be imposed on  J.C.D. and R.R.V. When sentencing J.C.D. and R.R.V. the court also stated that the applicant was not to be compensated because he was himself responsible for his detention and, as a result, Article 535 para. 1 of the Code of Criminal Procedure applied.

B. Relevant domestic law

20. 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. Persons who have been detained following conviction by (a) court shall be considered for the purposes of this article as persons who have been detained on remand, if their conviction is quashed following an appeal."

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."

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."

Article 537

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

2.  In those circumstances the application must be submitted to the prosecutor at that court no later than forty-eight hours after the delivery of the judgment in open court."

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."

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..."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant's complaint that the five-member court of appeal decided not to compensate him in respect of his detention without hearing him, without providing adequate reasons for its decision and without there being any possibility of appealing against this decision.

B. Point at issue

22. The issue to be determined is whether Article 6 para. 1 of the Convention was violated by reason of the five-member court of appeal's final decision not to compensate the applicant for his detention without hearing him, and the manner in which the relevant decision was reasoned.

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

23. 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 .... by a .... tribunal ..."

24. The applicant refers to the Georgiades v. Greece judgment of the Court, where it was considered that there is a "right" to be compensated under domestic law, that this right is "civil" and that there had been a violation of Article 6 of the Convention because Mr. Georgiades had not been heard in connection with his entitlement to compensation and the decision of the court did not contain any reasons (Eur. Court HR, Georgiades v. Greece judgment of 29 May 1997, Reports 1997-III, p. 949). The applicant submits that his case is not different in any significant respect. He also submits that he could not have applied for compensation after the court had "decided" after its first round of deliberations that he should not be compensated.

25. The Government submit that 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 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. As a result, Article 6 para. 1 of the Convention did not apply.

26. The Government further argue that the applicant was not heard because he never applied for compensation for his detention. They submit that, after its first round of deliberations on the applicant's guilt, the appeal court simply expressed an indication as to the applicant's entitlement to compensation. It was then for applicant's counsel to take the floor and formally apply for compensation. However, he failed to do so and the court, when sentencing the co-accused, confirmed that the applicant should not be paid any compensation.

27. Finally, the Government submit that the court was right in considering that the applicant was responsible for his detention and point in this connection to his criminal record and to the fact that the reason for his acquittal was that the court had doubts as to his guilt.

28. As regards the Government's allegation that no claim for compensation was ever lodged, the Commission recalls that when the five-member court of appeal first deliberated on the applicant's guilt it decided that he should be acquitted but not compensated. According to Article 536 of the Code of Criminal Procedure, the ruling on the applicant's entitlement to compensation was final and it was read in open court. The repetition of this ruling in the decision concerning the penalties to be imposed on the applicant's co-accused was a mere formality. Accordingly, 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.

29. 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.

30. As regards compliance with Article 6 para. 1 of the Convention, the Commission recalls that the Court in its above-mentioned Georgiades v. Greece 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 five-member court of appeal'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 had been a violation of Article 6 para. 1 of the Convention in respect of the five-member court of appeal's failure to hear the applicant.

31. As to the alleged lack of adequate reasons in the decision of the five-member court of appeal, the Commission notes that, in discarding the State's liability for the applicant's detention, the domestic court referred to the applicant own responsibility. In doing so, it repeated the wording of Article 535 para. 1. However, in the above-mentioned Georgiades v. Greece judgment the Court considered that this could not constitute adequate reasoning for rejecting the applicant's claim for compensation (op. cit., p. 960, para. 43). The Commission considers that the same holds true in respect of the present case. It follows that there had been a violation of Article 6 para. 1 of the Convention also as a result of the manner in which the decision of the five-member court of appeal was reasoned.

CONCLUSION

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

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary       President

to the First Chamber of the First Chamber