AS TO THE ADMISSIBILITY OF
Application No. 23169/94
by Georgios ANOMERITIS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
F. ERMACORA
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 December 1993
by Georgios ANOMERITIS against Greece and registered on 4 January 1994
under file No. 23169/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen born in 1935, residing in Athens
and a Member of Parliament. Before the Commission he is represented by
Messrs. P. Bitsaxis and I. Stamoulis, attorneys-at-law practising in
Athens.
The facts of the case as they have been submitted by the
applicant may be summarised as follows.
In 1987 the applicant was appointed by a socialist government
Governor of the National Real Estate Bank of Greece (Ethniki Ktimatiki
Trapeza tis Ellados - hereafter "the Bank"). On 11 January 1988 the
Board of Directors of the Bank, under the chairmanship of the
applicant, approved the terms of settlement of a loan which the Bank
had granted to the "Akti Plepi" hotel company.
On 18 May 1989, some days before the elections of June 1989 in
which the applicant was a candidate, two Members of Parliament of the
opposition party lodged a criminal complaint with the Public Prosecutor
of the First Instance Criminal Court of Athens against the members of
the Board of Directors of the Bank, claiming that, by agreeing to the
above-mentioned settlement, the latter had acted against the interests
of the Bank.
In November 1989, some days before a new parliamentary election
in which the applicant was again a candidate, a magistrate
(ptaismatodikis) examined witnesses in the context of a preliminary
enquiry into the "Akti Plepi" affair.
Further examinations were carried out by the Public Prosecutor
of the First Instance Criminal Court of Athens just before the
parliamentary elections of 8 April 1990. Having decided to institute
criminal proceedings against the applicant and the other members of the
Board of Directors of the Bank, the Public Prosecutor sent the case-
file to the Special Investigating Judge of Athens. The latter summoned
the applicant to present himself before him on 24 April 1990. Having
failed to serve the summons on the applicant personally, the court
bailiff pinned them on the door of the applicant's office in Athens.
The applicant, who was campaigning in his electoral district at the
time, claims not to have found the summons when he returned to Athens
after the elections.
Having been informed about the institution of the criminal
proceedings by other members of the Board of Directors of the Bank, the
applicant's lawyer visited the investigating judge on 17 April 1990 to
find out that his client had been charged with an aggravated form of
malpractice and that he would be notified of the contents of the case-
file when he appeared for examination on 24 April 1990. According to
the applicant, the prosecutor told his lawyer that the examination of
the applicant would be postponed to enable him to prepare his defence.
When the applicant appeared in the morning of 24 April 1990
before the investigating judge, the latter ordered his arrest "in order
to be brought before the investigating judge for examination". The
applicant applied for the arrest warrant to be revoked, inviting the
investigating judge to introduce this request before the Indictments
Chamber of the First Instance Criminal Court (Dikastiko Symvoulio
Plimmeleiodikon) of Athens. The investigating judge rejected his
request.
On 25 April 1990 the applicant was notified of the contents of
the case-file. On 26 April 1990 he appeared again before the
investigating judge. Having examined the applicant, the investigating
judge issued an order remanding him in custody.
The applicant challenged the investigating judge's order before
the Indictments Chamber of the First Instance Criminal Court of Athens,
asking for leave to be heard in person.
The applicant's challenge was heard on 11 May 1990. The Chamber
considered that it could not hear the applicant in person under
national law. It further considered that the investigating judge's
failure to introduce the applicant's application for the revocation of
the arrest warrant before the Chamber did not vitiate the judge's
subsequent order remanding the applicant in custody. Under the Code of
Criminal Procedure, the investigating judge was empowered to examine
the applicant's request himself. The Chamber considered, however,
that, despite the existence of serious indications of guilt, the
applicant could be released on bail, which the Chamber fixed at GDR
10.000.000. The Chamber finally ordered the applicant not to leave the
country.
On 5 November 1990 the Indictments Chamber of the Appeal Court
(Symvoulio Efeton) of Athens decided to commit the applicant for trial
before the three-member Court of Appeal of Athens, which it considered
competent to hear the case at first instance because of the nature of
the offence at issue, an aggravated form of malpractice. Although the
applicant had applied to be heard in person, the chamber did not
consider this necessary.
On 23 December 1991 the Court of Appeal acquitted, by majority,
the applicant and ordered the return of the GDR 10.000.000 which had
been paid to obtain the applicant's provisional release. The court
decided, however, not to grant the applicant compensation for the
period he spent in detention on remand, since the investigating judge
had acted lawfully when ordering the applicant's arrest and detention
on remand and "it could not be said that there did not exist at the
time of his arrest any serious indication of guilt".
On 2 January 1992 the Head of the Public Prosecutor's Office by
the Athens Court of Appeal appealed against this decision. On
10 June 1993 the five-member Court of Appeal of Athens confirmed the
first instance decision, considering unanimously that there existed
doubts as to the applicant's guilt.
Immediately after the pronouncement of the decision of the court
on the merits, the Public Prosecutor proposed that the applicant should
not be granted compensation for the period he had spent in detention
on remand. The applicant's counsel submitted that the court should not
address the issue on that day, as the defence would consider whether
to apply formally for compensation within the three day period
following the judgment, as prescribed by national law. The court
nevertheless decided that the applicant should not be granted
compensation, since the investigating judge had acted lawfully when
ordering the applicant's arrest and detention on remand and there
existed at the time of his arrest serious indications of guilt.
The text of the decision of the five-member Court of Appeal was
finalised (katharographi) on 1 October 1993. The Public Prosecutor's
Office did not appeal in cassation within the thirty day period
prescribed by national law.
COMPLAINTS
1. The applicant complains of a violation of Article 5 para. 1 (c)
in that he was unnecessarily placed under arrest on 24 April 1990, as
he had appeared on his own free will before the investigating judge.
He further submits that, contrary to the requirements of the above-
mentioned provision of the Convention, there could have been no
reasonable suspicion against him, as the order of arrest did not refer
to a such a suspicion. He also argues that national law was breached
as well since the order of arrest did not contain any reasons, nor was
it mentioned that it had been issued to prevent the applicant from
committing new offences or fleeing.
The applicant finally complains that the investigating judge
breached national law and the Convention when he ordered the
applicant's detention on remand on 26 April 1990, without referring to
any indications which would have justified the judge's conclusion that
there was a reasonable suspicion that the applicant had committed a
criminal offence, or that he was dangerous, or that there was a
reasonable suspicion that he would flee.
2. The applicant complains of a violation of Article 5 para. 5 of
the Convention in that he was not awarded compensation, despite the
fact that he had been illegally detained on remand.
3. By letter of 25 April 1994 the applicant raised the following
additional complaints:
a) He was not informed of the nature of the charges against him when
arrested on 24 April 1990. The investigating judge did not communicate
to him the contents of the file nor did he refer to any circumstances
which would justify a reasonable suspicion that he had committed a
criminal offence, or his conclusion that the applicant could flee or
commit a new criminal offence. He invokes in this connection Article
5 para. 2 of the Convention.
b) He could not challenge under national law the lawfulness of the
original order of arrest. He invokes in this connection Articles 5
para. 4 and 13 of the Convention.
c) He was unlawfully ordered to pay a sum of money as bail, in
breach of Article 1 of Protocol No. 1.
d) He was unlawfully ordered not to leave the country, in violation
of Article 2 of Protocol No. 4.
e) The second instance court decided not to award him compensation
in respect of the period he spent in detention on remand without
hearing him. There was no possibility to appeal against this decision
under national law. He invokes in this connection Articles 6 para. 1
and 13 of the Convention.
f) The investigating judge did not respect in his case the
presumption of innocence guaranteed under Article 6 para. 2 of the
Convention, as he ordered his arrest without hearing him or informing
him of the nature of the charges against him. He was given 48 hours
within which to prepare his initial statement before the investigating
judge, a period of time which was clearly inadequate under Article 6
para. 3 (b) of the Convention, given the complicated nature of the
charges against him.
g) He was persecuted and subjected to inhuman and degrading
treatment on political grounds, in breach of Articles 3 and 14 of the
Convention.
THE LAW
1. The applicant complains that his arrest and detention on remand
were not justified under Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention.
Article 5 para. 1 (Art. 5-1) of the Convention provides the
following:
"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:
..........
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 his committing an offence or fleeing after having
done so ...."
The Commission notes that the applicant first complains that the
investigating judge did not respect national law when ordering his
arrest and detention on remand in that he failed to provide adequate
reasons as required by Articles 276 and 282 of the Code of Criminal
Procedure.
The Commission recalls that the first condition laid down in
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention is that the
detention must be ordered "in accordance with a procedure prescribed
by law" and that it must be "lawful" within the meaning of this
provision. In accordance with the case-law of the Court, the provision
refers back essentially to domestic law and lays down the obligation
to conform to the substantive and procedural rules thereof (Eur. Court
H.R., Wassink judgment of 27 September 1990, Series A no. 185, p. 11,
para. 23). Moreover, under Article 60 (Art. 60) of the Convention,
nothing in the Convention shall be construed as limiting or derogating
from any human rights and fundamental freedoms which may be ensured
under the laws of the Contracting Party concerned.
The Commission also recalls, however, that it is for the national
authorities in the first place, and especially the courts, to interpret
and apply domestic law and to settle any disputes arising therefrom
(Eur. Court H.R., Kemmache judgment of 24 November 1994, Series A no.
296-C, para. 37). Insofar as the present case is concerned, the
Commission notes that the applicant was initially arrested on the basis
of a warrant issued by the investigating judge, who remanded him in
custody two days later. Both the first and second instance courts, when
pronouncing on the applicant's entitlement to compensation, considered
that the judge had acted in full compliance with domestic law. The
Commission does not consider that there emerge from the case-file any
elements which cast doubt on this conclusion. As a result, it considers
that the deprivation of the applicant's liberty was "lawful" and
ordered "in accordance with a procedure prescribed by law".
Insofar as the applicant complains that he was arrested, although
there could not have been any reasonable suspicion against him, the
Commission notes that the applicant bases himself on the fact that
neither the arrest warrant nor the order remanding him in custody
mention any elements which would have justified such a conclusion.
In accordance, however, with the Commission's case-law, the
Convention does not stipulate that the reasons for a person's arrest
should be stated in the text of the decision authorising detention.
Article 5 para. 2 (Art. 5-2) does not even require the reasons to be
given in writing to the detained person (No. 8098/77, Dec. 13.12.78,
D.R. 16 p. 111). Moreover, the reasonable suspicion in Article 5 para.
1 (c) (Art. 5-1-c) of the Convention does not mean that the suspected
person's guilt must at that stage be established and proven, and it
cannot be a condition for arrest and detention pending trial that the
commission of the offence with which the person concerned is charged
has been established. It is precisely the purpose of the official
investigation and detention the reality and nature of the offences laid
against the accused should be definitely proved (Eur. Court H.R.,
Murray judgment of 28 October 1994, Series A no. 300-B, para. 55;
No. 8224/78, Dec. 5.12.78, D.R. 15 p. 211; No. 10803/84, Dec. 16.12.87,
D.R. 54 p. 35).
In the present case, before deciding to institute criminal
proceedings, the Public Prosecutor conducted a preliminary inquiry in
the context of which several witnesses had been examined and other
evidential material produced. The case-file, which the public
prosecutor transmitted to the investigating judge, was so voluminous
that the applicant complained that 48 hours could not suffice for the
preparation of his initial statement before the investigating judge.
Faced with what appears to be a thorough preliminary inquiry and in the
absence of any indications to the contrary, the Commission is satisfied
that the investigating judge could reasonably conclude that there
existed a reasonable suspicion that the applicant had committed a
criminal offence.
The Commission finally notes that the applicant complains that
his arrest was abusive, since he was deprived of his liberty on the
basis of an arrest warrant which was purportedly issued to ensure his
appearance before the investigating judge, notwithstanding his clearly
manifested intention to submit himself to the proceedings instituted
against him.
The Commission recalls that the applicant was facing serious
charges, rendering him liable to life imprisonment. When remanding him
in custody, two days after his arrest, the investigating judge
considered that he was dangerous and that there was a reasonable
suspicion that he would flee. Moreover, the applicant was not
provisionally released until he paid a substantial amount of money as
bail.
In the light of all the above and its case-law to the effect that
the reasons for the suspect's arrest need not be mentioned in the text
of the decision which authorises it, the Commission considers that the
investigating judge acted reasonably when he originally ordered the
applicant's arrest.
As a result, the above complaints do not disclose any appearance
of a violation of the rights and freedoms set out in Article 5 para.
1 (c) (Art. 5-1-c) of the Convention. The Commission concludes that
this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains of a violation of Article 5 para. 5
(Art. 5-5) of the Convention in that he was not awarded compensation
despite the fact that he had been unlawfully detained on remand.
Article 5 para. 5 (Art. 5-5) of the Convention provides the
following:
"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 Commission recalls that, in accordance with its constant
case-law, complaints based on Article 5 para. 5 (Art. 5-5) of the
Convention may be examined directly by the Commission 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 Commission itself must first establish the existence of such a
violation (No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213). In the present
case, however, no such violation has been established by either the
domestic authorities or the Commission. In the absence of such a
finding, no issue arises under Article 5 para. 5 (Art. 5-5) of the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The Commission notes that by letter of 25 April 1994 the
applicant raised a number of complaints which he had not included in
his original application form. The applicant submits that these
complaints have been introduced within the six month time-limit
provided for under Article 26 (Art. 26) of the Convention, since the
last domestic court decision issued in his case became final on 1
November 1993, when the time limit for the lodging of an appeal in
cassation by the public prosecutor expired.
The Commission does not consider it necessary to pronounce on the
issue whether the applicant has complied with the requirements of
Article 26 (Art. 26) of the Convention, as the complaints introduced
on 25 April 1994 are in any event manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention for the
reasons mentioned below.
a) Insofar as the applicant complains that he was not informed of
the nature of the charges against him when he was arrested, the
Commission recalls that Article 5 para. 2 (Art. 5-2) of the Convention
provides that everyone who is arrested shall be informed promptly, in
a language which he understands, of the reasons for his arrest and of
any charge against him.
The Commission notes that the applicant complains in essence of
the alleged failure of the investigating judge to communicate to him
before ordering his arrest the contents of the file and to substantiate
his conclusion that there was a reasonable suspicion that the applicant
had committed a criminal offence and that he could flee or commit a new
criminal offence.
In accordance, however, with the constant case-law of the
Commission and the Court, although Article 5 para. 2 (Art. 5-2)
requires that sufficient information must be provided to the accused
to facilitate the pursuit of the remedy envisaged by Article 5 para.
4 (Art. 5-4) of the Convention, it does not require that a complete
description of all the charges should be given to the accused at the
moment of his arrest. Neither does it require the disclosure of the
complete case-file (Eur. Court H.R., Fox, Campbell and Hartley judgment
of 30 August 1990, Series A no. 182, p. 19, para. 40; No. 8098/77, Dec.
13.12.78, D.R. 16 p. 111; No. 9614/81, Dec. 12.10.83, D.R. 34 p. 119).
The Commission notes that the applicant does not dispute that he
was told immediately in general terms why he was apprehended. Neither
does he dispute that the entire case-file was disclosed to him on the
following day, ie one day before making his initial statement before
the investigating judge. The applicant finally accepts that in the
remand in custody order which was issued after his initial examination,
the investigating judge referred to the grounds which rendered, in his
view, the applicant's detention necessary.
In these circumstances, the Commission considers that the
applicant was promptly and sufficiently informed of the reasons for his
arrest and of the charges against him in accordance with Article 5
para. 2 (Art. 5-2) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b) Insofar as the applicant complains that he could not challenge
the lawfulness of the original order of arrest on the basis of which
he had been detained for two days before being remanded in custody
after his examination by the investigation judge, the Commission
recalls that Article 5 para. 4 (Art. 5-4) of the Convention provides
that everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful.
The Commission recalls that the applicant was detained on the
basis of an arrest warrant for two days and on the basis of a remand
in custody order thereafter. The applicant could and did apply to the
investigating judge for provisional release during the two day period
at issue. Thereafter he acquired the right to seize the Indictments
Chamber with the question of the lawfulness of his detention further
to the remand in custody order.
The Commission considers that, in these circumstances, no
appearance of a violation of Article 5 para. 4 (Art. 5-4) of the
Convention is disclosed (cf. Eur. Court H.R., Fox, Campbell and Hartley
judgment of 30 August 1990, Series A no. 182, p. 20, para. 45;
No. 11256/84, Dec. 5.9.88, D.R. 57 p. 47). It follows that this part
of the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
c) Insofar as the applicant complains under Article 1 of Protocol
No. 1 (P1-1) that he had been ordered to pay a sum of money as bail,
the Commission recalls that the applicant was placed in detention on
remand on the basis of a reasonable suspicion of having committed a
criminal offence.
It further recalls that Article 5 para. 3 (Art. 5-3) of the
Convention expressly authorises the release on bail of persons detained
on remand and that Article 1 para. 2 of Protocol No. 1 (P1-1-2)
authorises the control of the use of property in accordance with the
general interest.
Recalling that the amount of money, which was paid as bail in
this case, was returned to the applicant after his acquittal, the
Commission considers that the applicant's complaint is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
d) Insofar as the applicant complains of a violation of Article 2
of Protocol No. 4 (P4-2), which provides that everyone shall be free
to leave any country, including his own, the Commission recalls that
Greece has not ratified this Protocol. As a result, this part of the
application must be rejected as incompatible with the provisions of the
Convention.
e) Insofar as the applicant complains that the second instance court
refused to grant him compensation for the period he spent in detention
on remand and invokes Article 6 para. 1 (Art. 6-1) of the Convention,
the Commission recalls that this provision guarantees the right to be
heard by the court which will determine one's civil rights.
The Commission notes that in the present case the domestic court
decided to exercise its power to address the issue proprio motu
immediately after the pronouncement of its decision acquitting the
applicant. The applicant was invited to submit his observations
thereon, which he chose not to. In these circumstances the Commission
does not consider that, assuming that Article 6 (Art. 6) applies, the
applicant was deprived of his right to be heard.
His complaint is therefore manifestly ill-founded and must be
rejected, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
f) Insofar as the applicant complains of a violation of Article 6
para. 2 and 3 (b) (Art. 6-2, 6-3-b) of the Convention, the Commission
notes that at the end of the proceedings the applicant was acquitted
of the offences with which he had been charged.
The outcome of the trial has been favourable for the applicant
and any defects the proceedings might have had must be considered to
be remedied. It follows that the applicant can no longer claim to be
a victim, within the meaning of Article 25 (Art. 25), of a violation
of Article 6 of the Convention (cf. No. 8083/77, Dec. 13.3.80,
D.R. 19 p. 223 and No. 15831/89, Dec. 25.2.91, D.R. 69 p. 317). His
complaint is, therefore, manifestly ill-founded and must be rejected,
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
g) The applicant finally complains of a violation of Articles 3 and
14 (Art. 3, 14) of the Convention.
However, insofar as the matters complained of have been
substantiated and are within its competence, the Commission finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
This part of the application must be, therefore, rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Acting President of
First Chamber the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy