SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42154/98

by Turgut DEMIR

against Greece

The European Court of Human Rights ( Second Section) sitting on 6 July 1999 as a Chamber composed of

Mr M. Fischbach , President ,

Mr C. Rozakis ,

Mr B. Conforti ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr E. Levits , Judges ,

with Mr V. Berger, 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 30 April 1998 by Turgut Demir against Greece and registered on 10 July 1998 under file no. 42154/98;

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 Turkish national, born in 1960 and living in Langenthal , Switzerland.

He is represented before the Court by Mr B. Habegger , a lawyer practising in Langenthal , Switzerland.

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

A. Particular circumstances of the case

The applicant arrived in Greece in 1985 where he remained in a camp for refugees until 1987. Then he was transferred with the aid of the UNHCR to Switzerland, where he was granted asylum.

On 6 July 1997 the applicant was arrested in Greece for a series of larceny allegedly committed in that country in 1993. He was detained on remand until 28 July 1997, when he was released on bail by the indictment chamber of the Court of Appeal ( simvulio Efeton ) of Athens, which was competent to hear the case at first instance because of the nature of the offences. However, the court ordered that the applicant should remain in Greece until his trial.

On 24 October 1997 the indictment chamber of the Court of Appeal considered that there could be no serious suspicion that the applicant had committed the offences he had been charged with because at the relevant time he was in Switzerland, as it transpired from a series of official documents produced by him. It authorised the applicant to leave Greece.

On 3 December 1997 the applicant was acquitted by the Court of Appeal ( Efetio ) of Athens.

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 ... 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 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...”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that he was arrested although there existed no reasonable suspicion against him. He also complains under Article 5 § 5 of the Convention that his request for compensation for his unlawful arrest and detention was rejected by the Court of Appeal, which acquitted him on 3 December 1997.

2. The applicant complains under Article 6 § 1 of the Convention of the fairness of the proceedings against him.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that he was arrested although there existed no reasonable suspicion against him. He also complains under Article 5 § 5 of the Convention that his request for compensation for his unlawful arrest and detention was rejected by the Court of Appeal, which acquitted him on 3 December 1997.

The Court recalls that under Article 35 § 1 of the Convention it “may only deal with (a) matter after all domestic remedies have been exhausted”.

The Court notes that persons who have been detained on remand and subsequently acquitted have the right under Article 533 § 2 of the Code of Criminal Procedure to request compensation if it has been established in the proceedings that they did not commit the criminal offence for which they were detained.

The Court further notes that the applicant claims that he applied for compensation under Article 533 § 2 of the Code of Criminal Procedure but his application was rejected by the Court of Appeal on 3 December 1997. However, the copy of the Court of Appeal decision acquitting the applicant that was appended to the application form bears no mention of the fact that the applicant applied for compensation under the above-mentioned provision. On 21 August 1998 the Secretariat of the Commission, before which the case was pending prior to the entry into force of Protocol No. 11, requested the applicant for evidence that he had indeed applied for compensation to the Court of Appeal. However, the applicant reacted to this request by submitting another copy of the decision which had been originally appended to the application form.

In these circumstances, the Court considers that the applicant has failed to substantiate his allegation that on 3 December 1997 he applied for compensation for his arrest and detention. It follows that it cannot be considered that he has exhausted domestic remedies in accordance with Article 35 § 1 of the Convention.

This part of the application must, therefore, be rejected under Article 35 § 4 of the Convention.

2. The applicant complains under Article 6 § 1 of the Convention of the fairness of the proceedings against him.

Article 6 § 1 of the Convention provides as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing …”

However, in accordance with the Convention organs’ case-law, an acquitted defendant may not claim to be a victim of violations of Article 6 of the Convention which, according to him, took place in the course of the proceedings as a result of which he was acquitted (No. 8083/77, Dec. 13.3.80, D.R. 19, p. 223).

The Court notes that the criminal proceedings complained of resulted in the applicant’s acquittal. It follows that the applicant cannot claim to be a victim of a violation of Article 6 § 1 of the Convention.

This part of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Marc Fiscbach Registrar President