Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23516/94

by Hasan KOSAR

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 22 February 1995, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 30 July 1993 by

Hasan KOSAR against Greece and registered on 21 February 1994 under

file No. 23516/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in

1962. He is a political refugee and resides at the Relief Centre for

Refugees (Kentro Perithalpsis Prosfygon) in Lavrion, Greece. Before the

Commission he is represented by Mrs. Ioanna Kourtovik, an attorney-at-

law practising in Athens.

The facts of the case as submitted by the applicant may be

summarised as follows.

1. The particular circumstances of the case

On 16 January 1992, while visiting a friends' house, the

applicant and three other persons were arrested by the police. A

search of the appartment was carried out and the police found the seals

of an underground organisation and of the Athens airport, jack-knives

and forged passports.

On 17 January 1992 the Public Prosecutor of Athens charged the

applicant with forgery and terroristic acts. The applicant appointed

Mrs. Kourtovik as his lawyer and was given five days to prepare his

defence (apologia).

On 22 January 1992, after having heard the applicant, who was

assisted by an interpreter and by his lawyer and had already been

informed in detail of the accusations against him, the investigating

judge of the Athens Court ordered his detention on remand.

On 26 February 1992 the applicant applied to the investigating

judge of the Athens Court for provisional release. His request was

rejected on 2 March 1992 on the ground that he was dangerous and

suspected to flee the country.

On 19 May 1992 the First Instance Court of Athens, sitting in

chambers (Symvoulio Plimmeliodikon), committed the applicant for trial.

On 23 June 1992 the applicant lodged with the above-mentioned

court a request for provisional release. His request was rejected on

23 July 1992 by the Appeal Court of Athens, sitting in chambers

(Symvoulio Efeton), on the ground that he was dangerous and that there

was a considerable risk of absconding.

On 20 September 1992 the applicant lodged with the Appeal Court

a new request for provisional release. His request was rejected on

27 October 1992 on the same grounds as the previous one.

On 23 December 1992 the Appeal Court of Athens, sitting in

chambers, ordered the continuation of the applicant's provisional

detention.

On 8 February 1993 the applicant was acquitted by the Criminal

Court (Mikto Orkoto Dikastirio) of Athens. The Court further decided

that no compensation should be given to the applicant for the time

spent in prison between 16 January 1992 and 8 February 1993, because

his detention "was due to his gross negligence".

2. Relevant domestic law and practice

a. Under Article 282 of the Code of Criminal Procedure, a person

accused of a crime punishable with sentence of imprisonment of at least

three months may be detained on remand if there exist serious

indications of guilt and if this is strictly necessary to prevent the

accused from committing further crimes or from absconding, or if the

accused is considered to be particularly dangerous.

b. According to Article 285 para. 1 of the Code of Criminal

Procedure, the accused may challenge, within five days, the warrant of

detention on remand.

c. Under Greek law, the maximum time of detention on remand is 18

months (Articles 6 para. 4 of the Greek Constitution and 287 para. 2

of the Code of Criminal Procedure).

d. Article 533 para. 2 of the Code of Criminal Procedure reads as

follows:

"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 ....".

Article 535 para. 1 of the same Code provides the following:

"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."

COMPLAINTS

1. The applicant complains under Article 5 para. 1 c) of the

Convention of his detention on remand which was unlawful in that there

were no reasonable suspicions against him.

In particular, the applicant complains that the investigating

judge and the Indictment Chambers did not respect national law when

ordering his arrest and detention on remand and when rejecting his

requests for conditional release, in that they failed to provide

adequate reasons as required by Article 282 of the Code of Criminal

Procedure.

2. The applicant complains that all legal documents concerning his

arrest, his detention on remand and his committal for trial were

notified to him in Greek, a language which he does not understand. He

invokes Articles 5 para. 2 and 6 para. 3 a) of the Convention.

3. The applicant claims that the duration of his detention on remand

exceeded the "reasonable time" and complains that he was not

conditionally released. He invokes Articles 5 para. 3 and 6 para. 1 of

the Convention.

4. The applicant complains that he did not receive compensation for

having been unlawfully detained in breach of Article 5 para. 5 of the

Convention.

THE LAW

1. The applicant complains under Article 5 para. 1 c) (Art. 5-1-c)

of the Convention of his detention on remand which was unlawful in that

there were no reasonable suspicions against him.

In particular, the applicant complains that the investigating

judge and the Indictment Chambers did not respect national law when

ordering his arrest and detention on remand and when rejecting his

claims for conditional release, in that they failed to provide adequate

reasons as required by Article 282 of the Code of Criminal Procedure.

Article 5 para. 1 c) (Art. 5-1-c) reads as follows:

"Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and

in accordance with a procedure prescribed by law:

(...)

c. the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so (...)"

The Commission notes that nothing in the file indicates that the

applicant challenged the warrant of detention on remand, pursuant to

Article 285 para. 1 of the Code of Criminal Procedure. However, even

assuming that the applicant has exhausted domestic remedies, this part

of the application is manifestly ill-founded for the following reasons:

The Commission recalls that the first condition laid down in

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention is that the

detention must be ordered "in accordance with a procedure prescribed

by law" and that it must be "lawful" within the meaning of this

provision. In accordance with the case-law of the Commission and the

Court, the provision refers back essentially to domestic law and lays

down the obligation to conform to the substantive and procedural rules

thereof (see Eur. Court H.R., Wassink judgment of 27 September 1990,

Series A no. 185, p. 11, para. 23).

The Commission also recalls, however, that it is for the national

authorities in the first place, and especially the courts, to interpret

and apply domestic law and to settle any disputes arising therefrom

(see Eur. Court H.R., Kemmache judgment of 24 November 1994, Series A

no. 296-C, para. 37).

In the present case, insofar as the applicant complains that he

was arrested, although there could not have been any reasonable

suspicion against him, the Commission notes that the applicant bases

himself on the fact that neither the order remanding him in detention

nor the orders rejecting his claims for conditional release mention any

elements which would have justified such a conclusion and alleges that

the only reason for his arrest was his presence at the apartment where

the three other persons were arrested.

In accordance, however, with the Commission's case-law, the

Convention does not stipulate that the reasons for a person's arrest

should be stated in the text of the decision authorising detention.

Article 5 para. 2 (Art. 5-2) does not even require the reasons to be

given in writing to the detained person (see No. 8098/77,

Dec. 13.12.78, D.R. 16 p. 111). Moreover, the reasonable suspicion in

Article 5 para. 1 c) (Art. 5-1-c) of the Convention does not mean that

the suspected person's guilt must at that stage be established and

proven, and it cannot be a condition for arrest and detention pending

trial that the commission of the offence with which the person

concerned is charged has been established. It is precisely the purpose

of the official investigation, which detention is intended to

facilitate, to prove the reality and nature of the offences charged

(see Eur. Court H.R., Murray judgment of 28 October 1994, Series A

no. 300, para. 55; No. 8224/78, Dec. 5.12.78, D.R. 15 p. 211; No.

9627/81, Dec. 14.3.84, D.R. 37 p. 15; No. 10803/84, Dec. 16.12.87,

D.R. 54 p. 35).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains that all legal documents concerning his

arrest, his detention on remand and his committal for trial were

notified to him in Greek, a language which he does not understand. He

invokes Articles 5 para. 2 and 6 para. 3 a) (Art. 5-2, 6-3-a) of the

Convention.

Article 5 para. 2 (Art. 5-2) of the Convention reads as follows:

"Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his arrest and

of any charge against him."

Article 6 para. 3 a) (Art. 6-3-a) of the Convention provides the

following:

"Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him.

(...)"

Insofar as the applicant complains under Article 5 para. 2

(Art. 5-2) of the Convention, the Commission notes that from the outset

of the proceedings, namely his defence to the investigating judge of

the Athens Court, the applicant was assisted by an interpreter and by

his lawyer. The Commission considers that in these circumstances the

applicant's complain is wholly unsubstantiated.

Insofar as the applicant complains under Article 6 para. 3 a)

(Art. 6-3-a) of the Convention, the Commission recalls that this

provision lists in a non-exhaustive manner a certain number of rights,

in the area of criminal law, which constitute essential elements of the

general notion of a fair trial contained in Article 6 para. 1

(Art. 6-1) (see no. 8403/78, Dec. 14.12.81, D.R. 27 p. 61). Moreover,

the Commission recalls that the question whether or not the right to

a fair hearing has been respected should depend on an evaluation of the

proceedings as a whole (see no. 10300/83, Dec. 12.10.84, D.R. 40

p. 180).

In this context, the Commission notes that the applicant was

acquitted by a first instance court and that, therefore, he can no

longer claim to be a victim of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant claims that the duration of his detention on remand

exceeded the "reasonable time" and complains that he was not

conditionally released. He invokes Articles 5 para. 3 and 6 para. 1

(Art. 5-3, 6-1) of the Convention.

Article 5 para. 3 (Art. 5-3) of the Convention provides the

following:

"Everyone arrested or detained in accordance with the provisions

of paragraph 1 c) of this Article shall be brought promptly

before a judge or other officer authorised by law to exercise

judicial power and shall be entitled to trial within a reasonable

time or to release pending trial. Release may be conditioned by

guarantees to appear for trial."

Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:

"In the determination (...) of any criminal charge against him,

everyone is entitled to a (...) hearing within a reasonable time

(...)"

The Commission recalls at the outset that Article 6 para. 1

(Art. 6-1) applies to all parties to court proceedings and its aim is

to protect them against excessive procedural delays. Article 5 para.

3 (Art. 5-3), for its part, refers only to persons charged and

detained. It implies that there must be special diligence in the

conduct of the prosecution of cases concerning such persons (see

Eur. Court H.R., Stögmüller case, judgment of 10 November 1969, Series

A no. 9, The Law para. 5).

In the present case the Commission notes that the applicant was

detained between 16 January 1992 and 8 February 1993, namely less than

18 months which is, under Greek law, the maximum duration of detention

on remand.

The Commission does not find, in this case, that there were

unexplained delays, caused by the failure of the authorities to conduct

the proceedings with the necessary diligence.

Furthermore, the Commission notes that the applicant's requests

for conditional release were rejected because he was considered to be

dangerous and suspected to flee the country. In view of these factors,

the Commission considers that the decisions to maintain the applicant

in detention on remand were not unreasonable.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant complains that he did not receive compensation for

having been unlawfully detained in breach of Article 5 para. 5

(Art. 5-5) of the Convention.

Article 5 para. 5 (Art. 5-5) of the Convention provides the

following:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have

an enforceable right to compensation."

The Commission recalls that, in accordance with its constant

case-law, complaints based on Article 5 para. 5 (Art. 5-5) of the

Convention may be examined directly by the Commission only if the

domestic authorities have found a violation of any of the provisions

of paragraphs 1 to 4 of this Article. In the absence of such a finding,

the Commission itself must first establish the existence of such a

violation (see No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213). In the

present case, however, no such violation has been established by either

the domestic authorities or the Commission. In the absence of such a

finding, no issue arises under Article 5 para. 5 (Art. 5-5) of the

Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Acting President of

First Chamber the First Chamber

(M.F. BUQUICCHIO) (J. LIDDY)

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KOSAR v. GREECE

KOSAR v. GREECE

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