Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34373/97

by Christos GOUTSOS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 December 1996

by Christos GOUTSOS against Greece and registered on 8 January 1997

under file No. 34373/97;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 November 1997 and the observations in reply submitted by the

applicant on 15 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek national born in 1949. He is an

economist and resides in Petrupoli, Attiki. In the proceedings before

the Commission he is represented by Mr. P. Bitsaxis, a lawyer

practising in Athens.

The facts of the case, as they have been submitted by the

parties, can be summarised as follows:

A. Particular circumstances of the case

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.

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.

According to the minutes of the trial hearing, the relevant

decision was pronounced on 1 April 1996. The applicant claims that it

was pronounced on 2 April 1996.

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

The Code of Criminal Procedure provides as follows:

Article 533 para. 2

"Persons who have been detained on remand and subsequently

acquitted ... have the right to request compensation ...,

if it has been established in the proceedings that they did

not commit the criminal offence for which they have been

detained on remand ... A person who has been detained

following conviction by (a) court should be considered for

the purposes of this article to be a person who has been

detained on remand, if his conviction is quashed following

an appeal."

Article 535 para. 1

"The State does not have any obligation to compensate a

person who ... has been detained on remand if the latter,

intentionally or by gross negligence, was responsible for

his own detention."

Article 536 paras. 1 and 2

"Upon an application submitted orally by the person who has

been acquitted, the court which heard the case shall decide

on the State's obligation to pay compensation in a separate

decision issued at the same time as the verdict. However,

the court may also issue such a decision proprio motu ...

The decision regarding the obligation of the State to pay

compensation cannot be challenged separately; it is,

however, quashed when the decision on the principal issue

of the criminal trial is reversed."

Article 537 paras. 1 and 2

"The person who has suffered prejudice may request

compensation at a later stage before the same court.

In these circumstances, the application must be submitted

to the public prosecutor of this court strictly within

forty-eight hours from the pronouncement of the judgment in

open court."

Article 539 para. 1

"After it has been decided that the State must pay

compensation, the person entitled thereto may bring his

claim before the civil courts, which may not re-examine the

existence of the State's obligation."

Article 540 para. 1

"Persons who have been unfairly ... detained on remand must

be compensated for any material prejudice they have

suffered as a result of their ... detention. They must also

be compensated for moral damage ...".

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the Court of Appeal refused to compensate him in respect of his

detention without hearing him and without providing adequate reasons

for its decision.

2. The applicant also complains under Article 13 of the Convention

that he has no effective remedy, as the decision of the Court of Appeal

is the final decision on the matter.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 December 1996 and registered

on 8 January 1997.

On 10 September 1997 the Commission decided to communicate the

application.

The Government's written observations were submitted on

25 November 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 15 February 1998.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Court of Appeal refused to compensate him in

respect of his detention without hearing him and without providing

adequate reasons for its decision. He also complains under Article 13

(Art. 13) of the Convention that he has no effective remedy, as the

decision of the Court of Appeal is the final decision on the matter.

Article 6 para. 1 (Art. 6-1) 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 ..."

Article 13 (Art. 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."

2. The Government submit that the application was not lodged within

the six-month period provided for under Article 26 (Art. 26) of the

Convention. Although the decision of the Court of Appeal on the

applicant's entitlement to compensation was "finalised" on 18 June

1996, the applicant was present in court on 2 April 1996. As a result,

he must have heard that he was being refused compensation. He must also

have known that the "finalised" text of the decision would not contain

any particular reasons. As the applicant himself admits on the

application form, it is the practice of the Greek courts not to reason

their decisions refusing compensation for detention on remand. At most,

they repeat the letter of the law to the effect that the accused

"intentionally or by gross negligence, was responsible for his own

detention."

The applicant considers that the six-month period should be

calculated from the date of the "finalisation" of the Court of Appeal's

judgment.

The Commission notes that the applicant complains, inter alia,

of the inadequacy of the reasons contained in the decision of the Court

of Appeal refusing him compensation. However, it is only by consulting

the "finalised" version of the decision that the applicant could have

assessed whether "adequate" reasons had been included. As a result, the

Commission considers that, even assuming that the applicant was present

at court on 2 April 1996, the six-month period should be calculated,

at the earliest, from the date of the "finalisation" of the Court of

Appeal's decision. This decision was finalised on 18 June 1996 and the

application was lodged on 12 December 1996.

It follows that the application cannot be rejected for failure

to respect the six-month requirement of Article 26 (Art. 26) of the

Convention.

3. The Government further submit that the applicant failed to apply

for compensation, although he had the opportunity to do so before and

after his acquittal. The Government insist that, while the decision on

the applicant's acquittal was pronounced on 1 April 1996, the decision

on his entitlement to compensation was pronounced on 2 April 1996. This

is clearly stated in the minutes of the trial and, since the applicant

failed to challenge them for forgery, he is prevented under Greek law

from questioning the accuracy of their content. The applicant was

present in court on 2 April 1996. However, he chose to remain silent.

It follows that the applicant has failed to exhaust domestic remedies

under Article 26 (Art. 26) of the Convention.

The applicant claims that both decisions were taken on

2 April 1996. However, even assuming that the Government's version of

the facts is correct, the applicant submits that on 2 April 1996 he had

no right to address his compensation claim directly to the court of

appeal. 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, the applicant contends that a domestic court

cannot under any circumstances decide on a person's entitlement to

compensation without inviting that person to make submissions in this

connection.

The Commission considers that the question of whether the

applicant had a real opportunity of applying for compensation is linked

to the merits of his complaint and, as a result, it should be examined

at a later stage in the proceedings.

It follows that the Commission cannot at the present stage reject

the application on the ground that the applicant has failed to exhaust

domestic remedies as required under Article 26 (Art. 26) of the

Convention.

4. As regards the substance of the complaints, the Government submit

that Article 6 para. 1 (Art. 6-1) 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. 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 (Art. 6-1) of

the Convention requires. The court refused him 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.

The applicant considers that Article 6 para. 1 (Art. 6-1) is

applicable and refers in this connection to the Georgiadis v. Greece

judgment of 29 May 1997 of the Court (Reports 1997-III, p. 949). He

claims that, before deciding on his entitlement to compensation, the

court was obliged under the Convention to invite him to make

observations. He 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.

In the light of the parties' observations the Commission

considers that the application raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. The application cannot, therefore, be

regarded as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground

for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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GOUTSOS v. GREECE

GOUTSOS v. GREECE

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