SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45138/98 by Marios GEORGIOU against Greece

The European Court of Human Rights ( Second Section ) sitting on 13 January 2000 as a Chamber composed of

Mr M. Fischbach, President , Mr C.L. Rozakis, Mr B. Conforti, Mr G. Bonello, Mrs V. Strážnická, Mrs M. Tsatsa-Nikolovska, Mr E. Levits, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 November 1998 by Marios Georgiou against Greece and registered on 22 December 1998 under file no. 45138/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Cypriot national, born in 1971 and living in Paphos ( Cyprus ). He is represented before the Court by Mr A. Demitriadis , Mrs E. Georgiou- Taliotou and Mrs V. Loizides , lawyers practising in Cyprus .

A. Particular circumstances of the case

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

In October 1990 the applicant went to Greece to study law at the University of Athens .

In the night of 17-18 February 1996, he was with some friends at a night club celebrating carnival. At about 5.20 a.m. he left the club with a friend of his. He had had a number of drinks (mix of wine and ouzo) and was intoxicated when he left the club.

At a flat, a few meters away from the club, a robbery and attempted murder of an old lady had taken place at about that time. The neighbours had called the police because they heard loud cries and the lady, after the arrival of the police was transferred to hospital where she died from her wounds caused by a broken glass about six hours later.

The applicant was arrested by the police at 5.30 a.m. on 18 February 1996 at the home of the victim, in a state of unconsciousness due to his intoxication. The applicant’s leather jacket, golden chain and ring, watch, lighter and wallet were missing.

As soon as he recovered, the applicant was informed that he was being arrested for attempted murder of the lady. He maintained that he did not know the lady and that he could not remember the events of the previous morning or how he was found at the scene of the crime. He also requested to undergo a blood test to verify the level of alcohol in his blood, but the police refused to do so until eighteen hours following the arrest.

At the police station, the applicant was not allowed to meet with his lawyer and the police put pressure on him to confess. As he refused to do so, he was beaten, taken to a special room and handcuffed, beaten on the soles of his feet and the wrists and on other parts of his body and the police threw urine over his body. During the interrogation, the police swore at him and his country. The applicant was kept at the police station for four days where at night he was taken to a special cell. He was tied up all night half naked, without any blankets (even though it was winter) or food and was not allowed to go to the toilet. At times the police opened the cell and they spat at him and cold water was thrown over him.

On 19 February 1996, at about 11.00 a.m. the applicant was transferred to the Public Prosecutor’s office. Allegedly, the police took no steps to ensure his safety and this gave the opportunity to a relative of the victim to strike the applicant on the head and other parts of his body. On 22 February the applicant was sent to the Transfer Center of Pireus , where he was detained in a room with no beds or blankets, full of rubbish and with no toilets or heating facilities.

On 24 February 1996 the applicant was transferred to the prison of Ioannina . For the first two weeks the applicant was locked in a corridor as there was no space in any of the cells in the prison. There was neither heating nor access to a toilet or a shower. Then the applicant was transferred to an overcrowded cell, where many inmates, apparently ill, were left without any medical care. The applicant alleges that one of the inmates was left to die from his illness in that cell since the prison authorities refused to send him to the hospital, although they had been repeatedly invited to do so.

In February 1997, the applicant was transferred to the Korydallos prison, as his trial before the Assize Court of Athens was scheduled in March 1997.

The applicant appointed a lawyer specialising in criminal cases and paid him 2 500 000 drachmas. However, three days before the trial, the applicant maintains that the lawyer suggested to him to pay 5 000 000 drachmas more, of which amount three million would be for the lawyer and two million for the judge ; the plan was for the applicant to plead guilty and the judge to impose a sentence of only twelve years. As the applicant completely disagreed with this method, he changed lawyer.

On 3 March 1997, the proceedings started before the Assize Court of Athens. In view of the recent change of his lawyer, the applicant requested an adjournment of the hearing in order to permit the lawyer to study the case file. However, the Assize Court noted that the new lawyer had assisted the previous one throughout the investigation proceedings and adjourned the hearing until 7 March. On that date, the applicant requested a further adjournment until 11 March, because he had in the meantime appointed a second lawyer who was unable to attend the hearing on 7 March due to another professional obligation. The Assize Court granted the request and also ordered the Criminal Department of the Police to submit its report on the finger prints which was missing from the case file. Furthermore, the Assize Court decided to summon the coroner who examined the body of the victim.

During the hearing, the applicant complained that certain vital evidential elements had not been provided to the Public prosecutor’s office or to him. Namely, the coroner’s report which showed that the victim had died from a wound that was caused by a stable hand. Counsel for the defence also complained that the evidence file did not contain the report on the finger prints found on the glass by which the old lady was wounded and that this report had been hidden. The Public Prosecutor proposed to call as witnesses the man who heard the screams of the victim and the Chief Inspector of the police station of the place in which the robbery was perpetrated. However, the Assize Court refused to hear them on the ground that their testimony could not add any elements to the facts as they had already been established.

Counsel for the defence pleaded the acquittal of the applicant for lack of evidence. He stressed that, although the wounds of the lady had been caused by a broken glass, there were no excoriation on the hands of the applicant and his shirt bore only a few blood stains of the victim. In addition, a sum of money belonging to the victim was missing and not found on the applicant.

On 17 March 1997 the Assize Court , by five votes to two, found the applicant guilty of intentional homicide and sentenced him to fifteen years imprisonment. The minority did not contest that it was the applicant who committed the homicide but concluded to the absence of criminal responsibility owing to his state of drunkenness. The applicant appealed before the Assize Court of Appeal against this judgment.

The applicant maintains that following the conclusion of the trial, he ascertained that one of the judges of the Assize Court was a close relative of one of the prosecution witnesses. He also maintains that during his detention he had very little support in his effort to obtain his law books in order to finish his studies and that he was not allowed to attend the exams despite being legally entitled to do so. Furthermore, the Minister of Justice, in an interview he gave on the television in March 1998, stated that the applicant being a criminal should not be allowed to be a student.

On 20 May 1998, the Assize Court of Appeal quashed the judgment of the Assize Court for lack of evidence. The Court of Appeal stressed that the finger prints found on the broken glass by which the lethal blows were carried did not belong to the applicant and the damages to the apartment of the victim could not have been caused by a single person in such a short time. However, the Court of Appeal refused to grant the applicant any compensation for his detention and imprisonment. It held that the applicant had been detained and convicted for a “very immoral and dishonest offence” on the basis of evidence that he had actually committed the offence ; consequently, his detention and conviction were not attributable to a breach of law on the part of the judges and the jury who had pronounced them (articles 533 § 2, 535 and 536 of the Code of Criminal Procedure). The Public Prosecutor had invited the Court not to grant such a compensation and the applicant’s lawyers, as well as the applicant himself, had stated that they were leaving it to the Court to decide on that issue.

On 22 May 1998 the applicant returned to Cyprus . In the meantime, his grandfather to whom he was very close had died on 23 December 1997 and the applicant had not been allowed to attend the funeral. His mother’s condition, who was ill, deteriorated because of the events that took place in relation to the applicant and she died on 5 October 1998.

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; 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 [ Epitropos ] at that court no later than forty-eight hours after the delivery of the judgment in open court."

Article 539 § 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 § 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 ..."

Article 543

“The provisions of Articles 533-542 are applicable to foreigners, if a similar right to compensation is recognised in their country to the Greek nationals ...”

COMPLAINTS

1. The applicant alleges a violation of Article 5 § 1 of the Convention : his pre-trial detention and his detention after conviction have been unlawful as there was undisputed factual evidence that the applicant could not have committed the crime he allegedly committed. Part of this evidence was withheld from the applicant by the competent authorities.

2. As the Assize Court of Appeal refused to award him compensation for unlawful detention, there has also been a breach of Article 5 § 5 of the Convention.

3. In the event that the above-mentioned allegations do not constitute a violation of Article 5, the applicant maintains that they violate the right to a fair trial as guaranteed in Article 6 of the Convention : the presiding judge of the Assize Court committed “gross negligence” and the reasoning of the judgment was not at all detailed or based on adequate reasons. It follows that the trial before the Assize Court was neither fair nor impartial and the right of the applicant to be presumed innocent was violated.

4. In determining whether the applicant was entitled to compensation, the Assize Court of Appeal did not afford him the possibility to prepare and present his position concerning this matter, nor did it explain the reasons for not granting compensation. Furthermore, no possibility of appeal exists on the issue of compensation in view of the applicant’s acquittal. At last, Article 543 of the Code of Criminal Procedure discriminates against foreigners. Thus, the applicant has been a victim of a violation of Articles 6 and 14 of the Convention.

5. The failure of the Assize Court of Appeal to grant the applicant compensation, following his acquittal, constitutes a violation of Article 3 of Protocol N o 7.

6. The conditions of the applicant’s arrest, the treatment which he faced by the police following his arrest and the conditions of his detention in prison, constitute inhuman and degrading treatment contrary to Article 3 of the Convention.

7. The fact that the applicant was not entitled to prepare for and take the final examination for his law diploma at the University and the comments which the Minister of Justice made on a television program in March 1998 constitute a violation of Article 2 of Protocol N o 1.

8. The applicant has also been a victim of discrimination contrary to Article 14 of the Convention. The torture which the applicant faced as well as the impediments to his access to his lawyer and family were due to the fact that he is a Cypriot citizen. The applicant has also faced discrimination because he was an inmate in prison and therefore not allowed to take the examination at the University which, had he been free, he would have been permitted to take.

9. The fact that the applicant had not been allowed to attend his grandfather’s funeral and to visit his mother who was ill constitute a breach of his right to family life enshrined in Article 8 of the Convention.

10. The applicant complains of a violation of Article 10 of the Convention because he was not allowed to receive and impart information relating to his law studies.

THE LAW

1 . The applicant alleges a violation of Article 5 § 1 of the Convention which reads as follows in its relevant part :

“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:

(a) the lawful detention of a person after conviction by a competent court;

...

(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 him from committing an offence or fleeing after having done so;

...”

He maintains that his pre-trial detention and his detention after conviction had no basis under domestic law and were arbitrary, as it transpires from the facts, and can not be considered to have been lawful for the purposes of Article 5 § 1, as there was undisputed factual evidence that the applicant could not have committed the crime he allegedly committed. Part of this evidence was withheld from the applicant by the competent authorities. In addition, the applicant’s right to liberty and security was infringed by the blatantly illegal conduct of the presiding judge of the Assize Court who was willing to receive through the applicant’s lawyer a certain amount of money so as to impose a lighter sentence after the applicant would have pleaded guilty. The applicant invokes the judgment of the Court in the case of Tsirlis and Kouloumpas v. Greece of 29 May 1997 (Reports of Judgments and Decisions 1997-III, p.909).

In the first place, the Court notes that the applicant was arrested on 18 February 1996 and brought to trial before the Assize Court of Athens on 3 March 1997. Consequently, he remained in custody for more than one year. However, it does not transpire from the file that during that period he lodged an application for release or took proceedings “by which the lawfulness of his detention [could] be decided speedily by a court and his release ordered if the detention [was] not lawful”. Neither did he argue before the Assize Court that his detention had been arbitrary. It follows that, in regard to the detention before conviction, the applicant has not exhausted domestic remedies in this respect, within the meaning of article 35 § 1 of the Convention.

As regards the detention after conviction, the Court notes that the applicant was convicted by the Assize Court of Athens and then acquitted on appeal by the Assize Court of Appeal. The Court recalls that according to its case-law, a period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For that reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their conviction sentences were found by the appellate courts to have been based on errors of fact or law (see, among other authorities, the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 753, § 42).

In the case of Tsirlis and Kouloumpas - in which the applicants were detained after conviction and then acquitted - the Court found a violation of Article 5 § 1 on the ground that their conviction was arbitrary. However, the circumstances of that case differed radically from those in the present case. Mr Tsirlis and Mr Kouloumpas , both Jehovah witnesses, were detained following their conviction for insubordination, although they should not have been convicted for such a charge as they were ministers of a “known religion” according to the case-law of the Supreme Administrative Court . In the present case, the applicant was a suspect of having committed intentional homicide. He was arrested when he was found lying next to the body of the old lady. The Assize Court convicted him after having heard a great number of witnesses and examined all the evidence before it. Even the minority reached the same conclusion but on the ground that the applicant committed the crime in a state of drunkenness. Nothing in the proceedings or in the reasoning of the Assize Court enables the Court to conclude that the conviction of the applicant was arbitrary.

Accordingly the applicant’s detention cannot be considered to have been unlawful for the purposes of Article 5 § 1 of the Convention.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 et 4.

2. The applicant submits that as the Assize Court of Appeal refused to award him compensation for unlawful detention, there has also been a breach of Article 5 § 5 of the Convention, which reads as follows :

“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 recalls that a violation of Article 5 § 5 presupposes that a violation of any of the other provisions of Article 5 has been established either by the European Court itself or by a domestic court. In this case, neither the domestic court nor the European Court have found any such violation.

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

3. The applicant invokes a violation of Article 6 § 1 of the Convention, taken alone and in conjunction with Article 14 of the Convention. These Articles provide as follows :

Article 6 § 1

“In the determination (...) of any criminal charge against him, everyone is entitled to a fair (...) public hearing (...) by an independent and impartial tribunal (...).”

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant maintains that there has been a violation of his right to a fair trial : the presiding judge of the Assize Court committed “gross negligence” and the reasoning of the judgment was not at all detailed or based on adequate reasons. The trial before the Assize Court was neither fair nor impartial and the right of the applicant to be presumed innocent was violated. Furthermore, in determining whether the applicant was entitled to compensation, the Assize Court of Appeal did not afford him the possibility to prepare and present his position concerning this matter, nor did it explain the reasons for not granting compensation. No possibility of appeal exists on the issue of compensation in view of the applicant’s acquittal. At last, Article 543 of the Code of Criminal Procedure discriminates against foreigners. Thus, the applicant has been a victim of a violation of Article 6 taken together with Article 14 of the Convention.

As regards the applicant’s complaint relating to the fairness of the proceedings and the lack of reasoning of the judgment of the Assize Court, the Court recalls that, in examining the equitable character of the proceedings, it considers them as a whole including the decision of the appellate court (see, among other authorities, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 34, § 34). Even assuming that there were some defects in the proceedings before the Assize Court , these defects were cured as a result of the Assize Court of Appeal’s decision to acquit the applicant of all charges.

As to the allegation that the Assize Court did not afford the applicant the opportunity to prepare and present his arguments concerning the issue of compensation, the Court recalls that the Public Prosecutor raised the issue at the end of the hearing and invited the Assize Court not to allow any compensation neither for the applicant’s pre-trial detention nor for his detention following his conviction. On this point, the applicant’s lawyers and the applicant himself stated that they left the matter to the Court’s discretion.

Finally, as regards the allegation that the applicant had not been granted compensation because of a discrimination instituted by Article 543 of the Code of Criminal Procedure and applying to Cypriot nationals, the Court notes that the Assize Court of Appeal based its decision on Articles 533 § 2, 535 and 536 of the aforementioned Code and not on Article 543. There is no evidence of discrimination against the applicant.

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

4. The applicant also alleges a violation of Article 3 of Protocol N o 7, which reads as follows :

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non ‑ disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Court recalls that Article 3 of Protocol N o 7 provides for a right to compensation for miscarriages of justice, when an applicant has been convicted of a criminal offence by a final decision and suffered consequential punishment. The condition for Article 3 to apply is that the conviction has been overturned or a pardon granted because new or newly discovered facts showed conclusively that there has been a miscarriage of justice. Article 3 does not apply where an accused person is acquitted by a higher court on appeal, as in the present case.

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

5. The applicant alleges a violation of Article 3 of the Convention, which reads as follows :

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

He maintains that the conditions of his arrest, the treatment which he faced by the police following his arrest and the conditions of his detention in prison, constitute inhuman and degrading treatment.

The Court takes note of the gravity of the treatment allegedly suffered by the applicant during police custody. However, the Court observes that the applicant’s statements in this respect are not corroborated by any evidence in the file, such as medical certificates or reports by other witnesses. In any event, the applicant did not take any proceedings against the police officers who allegedly subjected him to the treatment complained of. Consequently the applicant has not exhausted domestic remedies, as required by Article 35 § 1 of the Convention.

As to the conditions of his detention in the various prisons, especially in the Ioannina prison, even assuming that they were as unsatisfactory as described by the applicant, the Court notes that his detention in that prison was terminated in February 1997, when he was transferred in the Korydalos prison, and that the applicant lodged his application with the Court in November 1998, thus after the expiry of the six month time-limit provided for in Article 35 § 1 of the Convention. Finally, as regards the detention in the Transfer Center of Pireus , it lasted for a short period of time and cannot be considered as having attained the threshold of severity required to fall within the ambit of Article 3 of the Convention.

In these circumstances, the Court concludes that this part of the application is inadmissible under Article 35 §§ 1 and 3 of the Convention and must be rejected under Article 35 § 4.

6. The applicant alleges a violation of Article 8 of the Convention, which reads as follows :

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant contends that, as a result of his unlawful arrest, conviction and detention, he had not been allowed to attend his grandfather’s funeral and to visit his mother who had been ill and whose condition had been deteriorating because of her son’s ordeal.

The Court recalls its prior conclusion according to which the detention of the applicant was “lawful” within the meaning of Article 5 of the Convention. It considers that Article 8 does not guarantee to a person detained in conformity with the Convention an unconditional right to visit his relatives. There is no appearance of a violation of Article 8 of the Convention.

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

7. The applicant alleges that the fact that he was not entitled to prepare for and take the final examination for his law diploma at the University and the comments which the Minister of Justice made on a television program in March 1998 constitute a violation of Article 2 of Protocol N o 1, which provides as follows :

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

The Court recalls that Article 2 of Protocol N o 1 provides that “no one shall be denied the right to education”. As the Court observed in the Belgian Linguistic case (judgment of 23 July 1968, Series A no.6), this right serves merely to guarantee “to persons subject to the jurisdiction of the Contracting Parties the right, in principle to avail themselves of the means of instruction existing at a given time. The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation”. The European Commission of Human Rights has concluded that the right envisaged in Article 2 is concerned primarily with elementary education and not necessarily advanced studies (application N o 5962/72, X. v. the .United Kingdom , decision of 13 March 1975, D.R. 2, p. 50).

The Court notes that the applicant was only prevented during a short period (fourteen months), corresponding to his lawful detention after conviction by a court, to take an exam at the University. He was not otherwise deprived of access to the educational institution of his choice or of his right to an effective education.

In the circumstances of the case, the Court considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

8. The applicant alleges a violation of Articles 3 and 8 of the Convention and 2 of Protocol N o 1 taken in conjunction with Article 14 of the Convention.

The Court finds that the applicant has not substantiated his allegation and it does not appear from the file that he has been discriminated on grounds of national origin.

It follows that this part of the application must be rejected as being manifestly ill-founded with the provisions of the Convention, within the meaning of article 35 § 3.

9. Finally, the applicant alleges a violation of Article 10 of the Convention because he had been unable to receive or impart information relating to his law studies.

The Court notes that the applicant lodged this complaint in a separate document which was received to the registry on 19 March 1999, after the expiry of the six month time-limit prescribed by Article 35 § 1 of the Convention.

It follows that this complaint is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Marc Fischbach Registrar President