Published on 30 January 2023

THIRD SECTION

Application no. 55998/18 Mihael VLACHOS against Greece lodged on 26 November 2018 communicated on 10 January 2023

SUBJECT MATTER OF THE CASE

The application concerns the lawfulness of the applicant’s detention initially on remand and then following a conviction.

The applicant was detained on remand from 28 November 2017 based on order no. 33/2017 of the investigating judge of Thessaloniki. On 2 March 2018 his provisional detention was interrupted, as his detention on the basis of judgment no. 13626/2017 of the One-Member Misdemeanour Court of Thessaloniki, sentencing him to ten months’ imprisonment, started.

According to Article 43 of Law no. 4489/2017, prisoners who had been sentenced to up to 3 years’ imprisonment, could be released by an order of the prosecutor upon completion of at least 1/10 of their sentence. On 3 April 2018 the prison director compiled a document detailing that the applicant had served one month and one day of his sentence. Based on that document, the Piraeus Prosecutor issued order no. 442 dated 24 July 2018 for the applicant’s conditional release. The applicant continued being detained on the basis of the order no. 33/2017 concerning his provisional detention that had been interrupted.

On 1 and 3 August 2018 the applicant lodged requests under Article 572 of the Code of Criminal Procedure with the supervising public prosecutor responsible for Korydallos Prison complaining that his detention was unlawful as: a) he was a drug addict who was following therapeutic programme and therefore, his days within prison were counted beneficially (two days instead of one), which meant that he had served the 1/10 of his sentence already on 18 March 2018; and b) that he had completed serving his sentence on 18 March 2018, which meant that the provisional detention which had restarted had reached the six-month time-limit on 13 June 2018. However, no decision had been taken within thirty days to extend his provision detention, which meant that his detention had been unlawful since 13 July 2018.

On 23 August 2018 the Judicial Council of the Thessaloniki Court of Appeal extended the applicant’s provision detention for another six months. It considered that the applicant’s provision detention had been running from 28 November 2017 until 2 March 2018, when it was interrupted, and had resumed running again on 25 July 2018, after the applicant’s release for the imposed sentence. The applicant was convicted to 6 years’ imprisonment on 17 October 2018.

The applicant complains under Articles 5 and 13 of the Convention that his detention was unlawful from 13 July 2018 until 23 August 2018, as the domestic authorities had failed to take into account the beneficial calculation of his prison sentence and had failed to act speedily to order his release which in the end was ordered on 24 July 2018.

QUESTIONS TO THE PARTIES

1. Having regard to the fact that the applicant voiced the grievances about the unlawfulness of his detention before the supervising public prosecutor responsible for Korydallos Prison, in a criminal complaint dated 3 August 2018 and also in his memorandum to the Judicial Council of the Thessaloniki Court of Appeal, has he exhausted domestic remedies as regards his complaint under Article 5 § 1 of the Convention?

2. In the affirmative, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the alleged non beneficial calculation of the applicant’s days in prison and the authorities’ delay in issuing order no. 442 dated 24 July 2018 affect the lawfulness of the deprivation of the applicant’s liberty given that he was entitled to conditional release months before that order?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 4 of the Convention (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 132-133, 15 December 2016)? If so, did it ensure the existence of adequate safeguards against arbitrary detention and allow the applicant to initiate a judicial review of that detention, including by lodging a request for release, of his own motion (see X. v. Finland , no. 34806/04, § 170, 3 July 2012)?