Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32397/96

by Andy SINNESAEL

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 25 June 1996 by

Andy SINNESAEL against Greece and registered on 24 July 1996 under file

No. 32397/96;

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

30 June 1997 and the observations in reply submitted by the

applicant on 12 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Belgian national born in 1970. He is a worker

and resides in Kachtem, Belgium. In the proceedings before the

Commission he is represented by Mr. P. Verbist, 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 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.

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.

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" ("Prepei epomenos na kirixthei logo

amfi volion athoos ton prazeon gia tis opoies katigoreitai kai

apofanthei to dikastirio sti den sintrexei periptosi apozimioseos

ton"). 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.

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

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 ..."

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..."

COMPLAINTS

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. He also complains that this is the final decision on

the matter.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 June 1996 and registered on

24 July 1996.

On 9 April 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

30 June 1997. The applicant replied on 12 September 1997.

THE LAW

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 that this 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

established by law."

The Government argue that the applicant has not exhausted

domestic remedies because he never applied for compensation for his

detention on remand. 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 two co-accused persons, confirmed that the

applicant should not be paid any compensation. As for the rest, 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. In any event, the question concerning

compensation for detention on remand is not of a "civil" law nature.

As a result, Article 6 para. 1 (Art. 6-1) of the Convention did not

apply. 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.

The applicant submits that he could not have applied for

compensation after the court had "decided" after its round of

deliberations that he should not be compensated. As for the rest, he

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 (Art. 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, No.

38). The applicant submits that his case is not different in any

significant respect.

The Commission notes the parties' disagreement as to whether the

applicant was given the chance to apply for compensation. It considers

that this question is related to the substance of the applicant's

complaints. It also considers that the applicant's complaints raise

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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SINNESAEL v. GREECE

SINNESAEL v. GREECE

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