THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38194/97 by Charilaos KARAKASIS against Greece

The European Court of Human Rights ( Third Section ) sitting on 30 November 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr C. Rozakis Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, judges ,

and Mrs S. Dollé , 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 19 June 1997 by Charilaos Karakasis against Greece and registered on 14 October 1997 under file no. 38194/97;

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

Having regard to the observations submitted by the respondent Government on 19 June 1998 and the observations in reply submitted by the applicant on 31 August 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek national, born in 1934 and living in Patras .

He is represented before the Court by Mr K. Mavroidis , a lawyer practising in Athens .

A. Particular circumstances of the case

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

On 25 October 1990 and 9 November 1990 criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds. The prosecutor instituted criminal proceedings against him.

In 1994 the investigating judge ordered the applicant's provisional detention (warrant No. 22/94). However, the applicant evaded arrest.

On 5 August 1994 the indictments chamber of the first instance criminal court ( simvulio plimmeliodikon ) of Athens decided to commit the applicant for trial to the three-member Court of Appeal ( trimeles efetio ) of Athens, sitting as a first instance court, on the above charges. The chamber confirmed the investigating judge's warrant concerning the applicant's detention.

On 2 February 1995 the indictments chamber decided to commit the applicant for trial on a number of supplementary charges.

The applicant was arrested on 2 September 1995. Until 30 October 1995 it was deemed that the applicant was serving a sentence that had been imposed on him for unrelated offences in 1989. As a result, the applicant's detention on remand on the fraud and other charges mentioned above officially started on 30 October 1995.

On 17 July 1996 the applicant applied for his provisional release. On 22 August 1996 the indictments chamber of the Court of Appeal of Athens rejected his application.

On 2 September 1996 the applicant appeared, together with MB, JK and DK, before the three-member Court of Appeal of Athens . He was represented by counsel who also acted for MB and JK. The trial lasted until 3 September 1996 when the court heard the final submissions of the parties on the question of the applicant's and his co-defendants' guilt. Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict MB and JK.

The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on MB and JK. Counsel who represented the applicant, as well as MB and JK, were heard in this connection. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that “the applicant should not be compensated for the time he spent in detention on remand”. The relevant decision was pronounced on the same day, i.e. on 3 September 1996.

However, its text was finalised ( katharographi ) on 9 December 1996. The applicant claims that he was informed of this development later on and obtained a certified copy on 28 July 1997.

B. Relevant domestic law

The Code of Criminal Procedure provides as follows:

Article 533 § 2

“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 § 1

“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.”

Article 536 §§ 1 and 2

“Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State's obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ...

The decision regarding the obligation of the State to pay compensation cannot be challenged separately; it is, however, quashed when the decision on the principal issue of the criminal trial is reversed.”

Article 537 §§ 1 and 2

“The person who has suffered prejudice may request compensation at a later stage before the same court.

In these circumstances, the application must be submitted to the public prosecutor of this court strictly within forty-eight hours from the pronouncement of the judgment in open court.”

Article 539 § 1

“After it has been decided that the State must pay compensation, the person entitled thereto may bring his claim before the civil courts, which may not re-examine the existence of the State's obligation.”

Article 540 § 1

“Persons who have been unfairly ... detained on remand must be compensated for any material prejudice they have suffered as a result of their ... detention. They must also be compensated for moral damage ... .”

COMPLAINTS

1. The applicant complains under Article 5 § 5 of the Convention that he was not compensated for his detention.

2. The applicant complains under Article 6 § 1 of the Convention that he was deprived of the possibility to submit a request for compensation and that the relevant court decision did not contain adequate reasons.

PROCEDURE

The application was introduced on 19 June 1997 and registered on 14 October 1997.

On 16 April 1998 the European Commission of Human Rights (First Chamber) decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 19 June 1998. The applicant replied on 31 August 1998.

On 15 September 1998 the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Article 5 § 5 of the Convention that he was not compensated for his detention. He also complains under Article 6 § 1 of the Convention that he was deprived of the possibility to submit a request for compensation and that the relevant court decision did not contain adequate reasons.

The Government submit that the application has not been lodged within the six-month time-limit provided for in Article 35 § 1 of the Convention. This time-limit must be calculated from the date when judgment was pronounced in open court in the applicant's presence, i.e. from 3 September 1996.

The applicant argues that the decision of 3 September 1996 was not final because the prosecutor had the right to appeal in cassation against it within ten days from the finalisation of its text. As a result, the time-limit of Article 35 § 1 of the Convention did not start running before 20 December 1996.

The Court recalls that under Article 35 § 1 of the Convention it “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court further recalls that, in accordance with its case-law, the six-month period does not start running before the finalisation of the text of the relevant domestic court decision (see the Papachelas v. Greece judgment of 25 March 1999, to be published in Reports of Judgments and Decisions 1999, §§ 30-31). The Court has interpreted Article 35 § 1 of the Convention in such a manner because it is after the finalisation of the text of the decision that the parties are able to find out its content. The Court considers that such an interpretation is particularly appropriate in a case involving a complaint concerning the adequacy of the reasons contained in the court decision.

Moreover, the Court recalls that in the applicant's case the text of the decision of the Court of Appeal of Athens was finalised on 9 December 1996. The applicant claims that he was not informed of this development immediately and that he obtained a certified copy only on 28 July 1997. The Court is disinclined to believe that the applicant was first apprised of the contents of the decision after he lodged his application with the Commission on 19 June 1997. However, the Court would also find it surprising if the applicant was so apprised in the ten days that followed the finalisation of the text. The Court recalls in this connection that, in accordance with its case-law, parties to a set of proceedings cannot be required to enquire day after day whether a judgment has been delivered (the Papageorgiou v. Greece judgment of 22 October 1997, Reports 1997-VI, p. 2287, § 32) or, by analogy, whether its text has been finalised.

The Court considers that, in the particular circumstances, the case cannot be rejected for failure to comply with the six-month requirement in Article 35 § 1.

2. The Court will thus examine the a pplicant's complaint under Article 5 § 5 of the Convention that he was not compensated for his detention.

Article 5 § 5 of the Convention provides 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 notes that the applicant never applied for compensation. In any event, the Court recalls that, in accordance with the Convention organs' case-law, it can examine directly a complaint based on Article 5 § 5 of the Convention 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 Court itself must first establish the existence of such a violation (application No. 7950/77, decision on admissibility 4.3.80, D.R. 19, p. 213). In the present case no such violation has been established by either the domestic authorities or the Court. In the absence of such a finding no issue arises under Article 5 § 5 of the Convention.

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

3. The Court also notes that the applicant complains under Article 6 § 1 of the Convention that he was deprived of the possibility to submit a request for compensation and that the relevant domestic court decision did not contain adequate reasons .

Article 6 § 1 of the Convention, in so far as relevant, provides as follows:

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

The Government submit that there is no “civil right” to compensation for detention on remand under domestic law. In any event, they point out that the applicant, who was represented by counsel, could have asked, following his acquittal, to be heard on his entitlement to compensation. However, he chose not to make any submissions in this connection and the court had to address the issue proprio motu . The reasons for not granting the applicant compensation were related to the fact that he had in the past evaded justice. As a result, he had become himself responsible for his detention. It follows that the applicant has not exhausted domestic remedies and, in any event, his complaint is manifestly ill-founded.

The applicant submits that the right to compensation is by its very nature “civil”. He refers to the Court's Georgiades v. Greece judgment of 29 May 1997 ( Reports 1997-III, p. 949). The applicant considers that the domestic court, before deciding on his entitlement to compensation, should have expressly invited him to develop his arguments in that connection. Finally, he points out that the domestic court decision did not contain any reasons. It simply refused him compensation.

The Court considers that the issue of exhaustion of domestic remedies is linked to the merits of the applicant's complaint. The same holds true in respect of the Government's argument that the complaint is incompatible ratione materiae with the Convention.

In the light of the parties' remaining observations, the Court considers that this part of the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and 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 complaints that he was not heard in connection with his entitlement to compensation for his detention on remand and that the relevant decision did not contain reasons;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza Registrar President