FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2507/02 by Astrit KURTI against Greece

The European Court of Human Rights (First Section), sitting on 6 May 2004 as a Chamber composed of:

Mr G. Bonello , President , Mr C.L. Rozakis , Mrs F. Tulkens , Mr E. Levits , Mrs S. Botoucharova, Mr A. Kovler, Mr V. Zagrebelsky, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 2 January 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Astrit Kurti, is an Albanian national who was born in 1976 and lives in Thessaloniki. He was represented before the Court by Mr Y. Yannacou, a lawyer practising in Thessaloniki. The respondent Government were represented by Mr M. Apessos, Senior Adviser at the State Legal Council and Mr K. Georghiadis, Legal Assistant at the State Legal Council.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 April 2000 the applicant was driving his motorbike in Thessaloniki. He was stopped by another Albanian, V.G., who asked him to drive him to the railway station. After a while they were stopped by the police who searched them and found 261 grams of heroine under V.G.'s belt. They were both arrested and placed in detention on remand. V.G. testified against the applicant and claimed that he had delivered drugs to him in the past. The applicant repeatedly claimed to be innocent and applied for release but his applications were dismissed.

On 10 July 2001 the Thessaloniki first-instance criminal court heard the case. V.G. stated that the first time he ever met the applicant was the day of arrest. The court acquitted the applicant by a majority. One judge expressed the opinion that he was guilty. The Court further held that the State was under no obligation to compensate the applicant for his detention, because his detention was due to his own gross negligence (judgment no. 694/2001).

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure read as follows:

Article 533 § 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 § 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...”

COMPLAINTS

The applicant complains under Articles 5 § 5 and 6 § 1 of the Convention that although he was unlawfully detained for fifteen months the first-instance court refused him compensation without giving any reasons.

THE LAW

1. The applicant complains that he did not receive compensation for his allegedly unlawful detention. He invokes Article 5 of the Convention which, insofar as relevant, reads as follows:

“1. 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;

...

5. 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 Court observes that Article 5 § 5 guarantees an enforceable right to compensation only to those who have been victims of arrest or detention in contravention of the provisions of Article 5 ( Benham v. the United Kingdom , judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 755, § 50; Steel and Others v. the United Kingdom , judgment of 23 September 1998, Reports 1998-VII, p. 2740, § 81).

In the present case, no violation of Article 5 paragraphs 1 to 4 has been established by any domestic organ. It is up to the Court therefore to examine whether there has been a violation of one of the above paragraphs before examining the applicant's right to compensation under paragraph 5 of Article 5.

The Court considers that the applicant's detention falls to be examined under Article 5 § 1 (c). The applicant seems to suggest that the fact that he has been acquitted automatically rendered his detention unlawful. However, the measure complained of complied with domestic law and aimed at facilitating the proper conduct of the investigation. There is no indication in the file that the applicant's detention was not “lawful” within the meaning of Article 5 § 1 (c). Further, there is no indication of a violation of any of the other paragraphs of Article 5.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains that he did not have a fair hearing in the matter of compensation for his allegedly unlawful detention. He invokes Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

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

The Government submit that the first-instance court's decision was adequately and sufficiently reasoned. They recall that V.G. had testified against the applicant who was proven to be his friend. The court's refusal to compensate the applicant was based on these circumstances. The Government further stress that one of the members of the court found the applicant guilty; they consider that the other members of the court showed a high degree of leniency towards him.

The applicant refutes the Government's arguments.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint that he did not have a fair hearing in the matter of compensation for his detention;

Declares the remainder of the application inadmissible.

Søren Nielsen Giovanni Bonello Registrar President