SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50385/99 by Christos MAKARATZIS against Greece

The European Court of Human Rights, sitting on 18 October 2001 as a Chamber composed of

Mr A.B. Baka , President , Mr C.L. Rozakis , Mrs V. Stráznická , Mr P. Lorenzen , Mr E. Levits , Mr A. Kovler,

Mr V. Zagrebelsky , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 2 June 1998 and registered on 18 August 1999,

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 Christos Makaratzis, is a Greek national, born in 1967 and living in Athens. He is represented before the Court by Ms I. Kourtovik, a lawyer practising in Athens.

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

On 13 September 1995 the police tried to stop the applicant who had driven through a red traffic light in the centre of Athens. The applicant did not stop but speeded up. He was pursued by several police officers in cars and motorcycles. While running away, the applicant’s car collided with several other vehicles. Two drivers were injured. After the applicant had broken through five police roadblocks, the police officers started firing at his car.

Eventually the applicant’s car stopped at a petrol station but the applicant locked the car doors and refused to get out. The police officers continued firing. The applicant alleges that they were firing at his car, whereas the Government allege that they were firing in the air. One of them threw a pot on the windscreen. Finally, the applicant was arrested by a police officer who managed to break in the car. The applicant was immediately driven to the hospital, where he remained for nine days. He was injured in the right arm, the right foot, the left buttock and the right part of the chest. He claims that he was shot on the sole of his foot while being dragged out of his car. The Government contest this argument. The applicant’s mental health has deteriorated considerably since the accident.

Following the incident, an administrative investigation was carried out, during which thirty-five sworn witness depositions were taken. Laboratory tests were conducted in order to examine thirty-three police firearms and the bullets found. The applicant’s car was also examined. Following the administrative investigation, the public prosecutor instituted criminal proceedings against seven police officers for causing serious bodily harm and unauthorised use of weapons. At a later stage, the applicant joined the proceedings as a civil party claiming a specific amount by way of damages. Criminal proceedings were also instituted against the applicant who was sentenced to forty days imprisonment for bodily harm (judgment no. 16111/2000 of the first instance criminal court of Athens).

On 5 December 1997 the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Athens acquitted the seven police officers. The court found that it had not been established that they were the ones who had injured the applicant. A number of police officers who had taken part in the incident had left the scene after the applicant’s apprehension without revealing their identity and disclosing the necessary information concerning their weapons. Two bullets found in the applicant’s car had been fired from the weapons of two of the accused. However, it had not been shown beyond reasonable doubt that these officers had used their weapons for a purpose other than trying to immobilise a car whose driver they reasonably considered to be a dangerous criminal.

The applicant, who was present when the judgment was pronounced, did not have the right to appeal under domestic law.

The text of the decision was finalised on 20 May 1999.

COMPLAINTS

The applicant complains that the police officers used excessive firepower against him putting his life at risk. He submits that none of the bullets was aimed at the tyres of the car, which appeared intact in the photographs taken after the incident. He also complains of the absence of an adequate investigation into the incident. The police did not collect any of the bullet shells found outside the car. A number of police officers and vehicles were allowed to leave the scene without leaving any trace as to their identity. The verdict of the court was questionable, especially since the wound on his foot could only have been inflicted after his apprehension, and the length of the proceedings unreasonable. The applicant invokes Articles 2, 3 and 6 of the Convention.

THE LAW

1 . Invoking Articles 2 and 3 of the Convention the applicant complains that he was subjected to a life-threatening attack by police officers and that the authorities failed to carry out an adequate and effective investigation into the attack. The Court considers that the applicant’s complaints concerning the lack of any effective investigation by the authorities into the cause of his injuries fall to be dealt with in this case under Article 2, taken together with Article 13 of the Convention.

Article 2 of the Convention provides as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

The Government submit that the use of force pursued the objective of effecting a lawful arrest and was not disproportionate to that aim, given the dangerous conduct of the applicant.

The Government further submit that in the present case there has been a thorough administrative investigation. They stress that the criminal proceedings against the police officers were instituted on the public prosecutor’s initiative. In their view, the procedural requirement which might be read into Article 2 § 1 of the Convention was more than satisfied.

The applicant responds that the State authorities tried to cover up the case.

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 should depend on 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.

2 . The applicant further complains about the acquittal of the police officers who were accused. He invokes Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:

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

In so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, ECHR 1999–I, p. 98, § 28).

In the present case, the Court notes that the applicant had the benefit of adversarial proceedings and was able to submit the arguments he considered relevant to his case. There is no evidence to suggest that the proceedings were not fair.

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

3 . Lastly, the applicant complains under Article 6 § 1 of the Convention of the time lapsed until the finalisation of the text of the decision of the first instance criminal court. In particular, the applicant alleges that, although the proceedings before that court were not lengthy, the delay in finalising the text of the decision delayed his application to the Court.

The Government affirm that the case was rather complex and that the first instance criminal court heard it and issued its decision within a reasonable time in the particular circumstances. As regards the time lapsed until the finalisation of the text of the decision, the Government observe that this delay did not affect the applicant’s rights since the latter did not have the right to appeal under domestic law.

The Court first observes that it is not disputed by the parties that the proceedings up to the judgment were conducted within a reasonable time. It is, nevertheless, true that the text of the decision of the first instance criminal court was finalised more than seventeen months after the domestic court gave judgment. The Court notes, however, that the applicant was present when the judgment was pronounced and that, in any event, he did not have the right to appeal under domestic law. In the circumstances, there is no indication of a violation of the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.

The Court has also examined this complaint under Article 34 of the Convention which guarantees the effective exercise of the right of individual petition. However, and having regard to what has been stated above, it finds that the applicant was not thereby prevented from applying to the Court and arguing his case effectively before it.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the injuries inflicted on him and the absence of an effective investigation into the accident of 13 September 1995;

Declares inadmissible the remainder of the application.

Søren Nielsen András Baka              Deputy Registrar President