AS TO THE ADMISSIBILITY OF
Application No. 34373/97
by Christos GOUTSOS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
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 12 December 1996
by Christos GOUTSOS against Greece and registered on 8 January 1997
under file No. 34373/97;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 November 1997 and the observations in reply submitted by the
applicant on 15 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek national born in 1949. He is an
economist and resides in Petrupoli, Attiki. In the proceedings before
the Commission he is represented by Mr. P. Bitsaxis, a lawyer
practising in Athens.
The facts of the case, as they have been submitted by the
parties, can be summarised as follows:
A. Particular circumstances of the case
On an unspecified date towards the end of 1992 criminal
proceedings were instituted against the applicant in Iraklio for fraud.
On 3 November 1993 the investigating judge ordered the applicant's
detention on remand. On 17 December 1993 the investigating judge
ordered the applicant's release on bail. The applicant was released on
21 December 1993.
On 29 March 1996 the applicant appeared together with a number
of co-defendants before the three-member Court of Appeal (trimeles
efetio) of Crete, which was competent to hear the case at first
instance because of the nature of the charges. Having heard evidence
from both sides as well as the parties' final submissions on the
question of the applicant's and his co-defendants' guilt, the court
withdrew for deliberations in the course of which it decided to acquit
the applicant and convict some of the co-accused.
According to the minutes of the trial hearing, the relevant
decision was pronounced on 1 April 1996. The applicant claims that it
was pronounced on 2 April 1996.
On 2 April 1996 the court heard submissions on the sentences to
be imposed on the applicant's co-defendants who had been found guilty.
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. It was
"finalised" on 18 June 1996.
B. Relevant domestic law
The Code of Criminal Procedure provides as follows:
Article 533 para. 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 ... A person who has been detained
following conviction by (a) court should be considered for
the purposes of this article to be a person who has been
detained on remand, if his conviction is quashed following
an appeal."
Article 535 para. 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 paras. 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 paras. 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 para. 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 para. 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 6 para. 1 of the Convention
that the Court of Appeal refused to compensate him in respect of his
detention without hearing him and without providing adequate reasons
for its decision.
2. The applicant also complains under Article 13 of the Convention
that he has no effective remedy, as the decision of the Court of Appeal
is the final decision on the matter.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 December 1996 and registered
on 8 January 1997.
On 10 September 1997 the Commission decided to communicate the
application.
The Government's written observations were submitted on
25 November 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 15 February 1998.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Court of Appeal refused to compensate him in
respect of his detention without hearing him and without providing
adequate reasons for its decision. He also complains under Article 13
(Art. 13) of the Convention that he has no effective remedy, as the
decision of the Court of Appeal is the final decision on the matter.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing by a ... tribunal ..."
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
2. The Government submit that the application was not lodged within
the six-month period provided for under Article 26 (Art. 26) of the
Convention. Although the decision of the Court of Appeal on the
applicant's entitlement to compensation was "finalised" on 18 June
1996, the applicant was present in court on 2 April 1996. As a result,
he must have heard that he was being refused compensation. He must also
have known that the "finalised" text of the decision would not contain
any particular reasons. As the applicant himself admits on the
application form, it is the practice of the Greek courts not to reason
their decisions refusing compensation for detention on remand. At most,
they repeat the letter of the law to the effect that the accused
"intentionally or by gross negligence, was responsible for his own
detention."
The applicant considers that the six-month period should be
calculated from the date of the "finalisation" of the Court of Appeal's
judgment.
The Commission notes that the applicant complains, inter alia,
of the inadequacy of the reasons contained in the decision of the Court
of Appeal refusing him compensation. However, it is only by consulting
the "finalised" version of the decision that the applicant could have
assessed whether "adequate" reasons had been included. As a result, the
Commission considers that, even assuming that the applicant was present
at court on 2 April 1996, the six-month period should be calculated,
at the earliest, from the date of the "finalisation" of the Court of
Appeal's decision. This decision was finalised on 18 June 1996 and the
application was lodged on 12 December 1996.
It follows that the application cannot be rejected for failure
to respect the six-month requirement of Article 26 (Art. 26) of the
Convention.
3. The Government further submit that the applicant failed to apply
for compensation, although he had the opportunity to do so before and
after his acquittal. The Government insist that, while the decision on
the applicant's acquittal was pronounced on 1 April 1996, the decision
on his entitlement to compensation was pronounced on 2 April 1996. This
is clearly stated in the minutes of the trial and, since the applicant
failed to challenge them for forgery, he is prevented under Greek law
from questioning the accuracy of their content. The applicant was
present in court on 2 April 1996. However, he chose to remain silent.
It follows that the applicant has failed to exhaust domestic remedies
under Article 26 (Art. 26) of the Convention.
The applicant claims that both decisions were taken on
2 April 1996. However, even assuming that the Government's version of
the facts is correct, the applicant submits that on 2 April 1996 he had
no right to address his compensation claim directly to the court of
appeal. Under domestic law, once the accused's acquittal has been
pronounced, the accused must address his compensation claims to the
public prosecutor and not to the court which has acquitted him. The
applicant had a two-day time-limit for doing so. The court, by taking
proprio motu a decision on this matter before this time-limit had
expired, effectively prevented the applicant from exercising this
right. In any event, the applicant contends that a domestic court
cannot under any circumstances decide on a person's entitlement to
compensation without inviting that person to make submissions in this
connection.
The Commission considers that the question of whether the
applicant had a real opportunity of applying for compensation is linked
to the merits of his complaint and, as a result, it should be examined
at a later stage in the proceedings.
It follows that the Commission cannot at the present stage reject
the application on the ground that the applicant has failed to exhaust
domestic remedies as required under Article 26 (Art. 26) of the
Convention.
4. As regards the substance of the complaints, the Government submit
that Article 6 para. 1 (Art. 6-1) of the Convention did not apply to
the proceedings at issue. The applicant did not have a "right" to be
compensated, because the courts enjoy unfettered discretion in this
connection under domestic law. The question concerning compensation for
detention on remand is not of a "civil" but of a public law nature; the
State acts jure imperii and the unlawful character of the detention is
not a precondition. Neither is there a "dispute", since the court may
decide proprio motu and the State is not represented at the hearing -
the role of the prosecutor not being that of State's counsel. In any
event, the Government submit that the applicant could have been heard
if he had so wished and this is what Article 6 para. 1 (Art. 6-1) of
the Convention requires. The court refused him compensation because it
must have considered that he had been responsible for his own
detention. As it indirectly transpires from the court's decision, the
reason for the applicant's acquittal was that the court had doubts as
to his guilt.
The applicant considers that Article 6 para. 1 (Art. 6-1) is
applicable and refers in this connection to the Georgiadis v. Greece
judgment of 29 May 1997 of the Court (Reports 1997-III, p. 949). He
claims that, before deciding on his entitlement to compensation, the
court was obliged under the Convention to invite him to make
observations. He also submits that the Convention does not allow any
room for reasons which "indirectly" transpire from the court's
decision. In any event, he considers that any doubts the court might
have had as to his innocence cannot justify on their own the conclusion
that he was responsible for his detention.
In the light of the parties' observations the Commission
considers that the application raises serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground
for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy