Published on 3 June 2024
THIRD SECTION
Application no. 31038/19
Faramars AHMADI
against Greece and Austria
lodged on 5 June 2019
communicated on 16 May 2024
SUBJECT MATTER OF THE CASE
The application concerns the detention of the applicant in Austria and Greece following a European Arrest Warrant (EAW) issued by the Greek authorities.
In December 2016 criminal charges were pressed against the applicant for the offence of committing a murder and a EAW against him was issued on 5 January 2017.
The applicant was arrested by the Austrian authorities on 9 February 2017 in execution of the EAW and was surrendered to Greece on 5 September 2017. Following his written defence statement on 11 September 2017, the applicant was released under the conditions that he would not exit the country and that he would appear before the police at his place of residence three times per month. Subsequently, on 17 October 2017, the Athens Misdemeanour Council issued order no. 4256/2017 by which the criminal charges against the applicant were dropped as the offence had become time‑barred.
On 23 November 2018, the applicant lodged an application under Article 533 of the Code of Criminal Procedure, as applicable at the time, requesting compensation from the Greek authorities for his detention from 9 February 2017 until 11 September 2017. His request for compensation was rejected by order no. 1498/2019 of the Athens Misdemeanour Council on the grounds that domestic law provided for compensation for anyone who had been irrevocably acquitted; however, in the applicant’s case the offence had become statute barred and thus, was not falling within the scope of Article 533 of the Code of Criminal Procedure.
Following the modifications in the Code of Criminal Procedure in 2019, the applicant re-submitted three times his request for compensation before the Athens Misdemeanour Council. His requests were either not answered at all or rejected.
The applicant complains under Article 5 § 1 of the Convention against both Austria and Greece that his detention was unlawful as the offence with which he was charged had already been time barred at the time the EAW was issued. In his view, the authorities of both Contracting Parties should have verified that aspect and not proceed with issuing or executing the EAW.
He further complains under Articles 5 § 5 and 6 § 2 of the Convention about the rejection of his request for compensation by the Greek authorities on the grounds that the fact that the offence had become statute barred did not mean that he had been irrevocably acquitted.
QUESTIONS TO THE PARTIES
Questions in respect of the complaint against both Austria and Greece
1. Has the applicant exhausted the domestic remedies in respect of his complaints against Austria and Greece? In the negative, what were the remedies at the applicant’s disposal that he did not make use of?
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 9 February and 11 September 2017? In particular, was the deprivation of his liberty during that period of time lawful within the meaning of Article 5 § 1 of the Convention? Did the European arrest warrant issued against him have any legal basis under Greek law at the time of his arrest, taking into account that the offence for which he was accused had already become statute barred? Did the Austrian authorities have the obligation to verify that either ex officio or following a remedy lodged by the applicant?
Questions in respect of the complaints against Greece
3. Did the applicant have an effective and enforceable right to compensation for his arrest and detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
4. In cases of unlawful detention following a European Arrest Warrant, does the responsibility for compensation lie with the issuing or the executing State? In particular, did the Austrian authorities have the obligation to compensate the applicant for his detention, in view also of its length and of the non-respect of the time-limits set by the EAW Framework Decision? Did Greece have the obligation to compensate the applicant for his whole period of detention given that he had been detained on the basis of a EAW issued by the Greek authorities?
5. Has there been a violation of the presumption of innocence as guaranteed by Article 6 § 2 of the Convention on account of the reasoning included in order no. 1498/2019 of the Athens Misdemeanour Council and the grounds of rejection of the applicant’s request for compensation?