AS TO THE ADMISSIBILITY OF
Application No. 23516/94
by Hasan KOSAR
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 22 February 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
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 30 July 1993 by
Hasan KOSAR against Greece and registered on 21 February 1994 under
file No. 23516/94;
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 Turkish citizen of Kurdish origin, born in
1962. He is a political refugee and resides at the Relief Centre for
Refugees (Kentro Perithalpsis Prosfygon) in Lavrion, Greece. Before the
Commission he is represented by Mrs. Ioanna Kourtovik, an attorney-at-
law practising in Athens.
The facts of the case as submitted by the applicant may be
summarised as follows.
1. The particular circumstances of the case
On 16 January 1992, while visiting a friends' house, the
applicant and three other persons were arrested by the police. A
search of the appartment was carried out and the police found the seals
of an underground organisation and of the Athens airport, jack-knives
and forged passports.
On 17 January 1992 the Public Prosecutor of Athens charged the
applicant with forgery and terroristic acts. The applicant appointed
Mrs. Kourtovik as his lawyer and was given five days to prepare his
defence (apologia).
On 22 January 1992, after having heard the applicant, who was
assisted by an interpreter and by his lawyer and had already been
informed in detail of the accusations against him, the investigating
judge of the Athens Court ordered his detention on remand.
On 26 February 1992 the applicant applied to the investigating
judge of the Athens Court for provisional release. His request was
rejected on 2 March 1992 on the ground that he was dangerous and
suspected to flee the country.
On 19 May 1992 the First Instance Court of Athens, sitting in
chambers (Symvoulio Plimmeliodikon), committed the applicant for trial.
On 23 June 1992 the applicant lodged with the above-mentioned
court a request for provisional release. His request was rejected on
23 July 1992 by the Appeal Court of Athens, sitting in chambers
(Symvoulio Efeton), on the ground that he was dangerous and that there
was a considerable risk of absconding.
On 20 September 1992 the applicant lodged with the Appeal Court
a new request for provisional release. His request was rejected on
27 October 1992 on the same grounds as the previous one.
On 23 December 1992 the Appeal Court of Athens, sitting in
chambers, ordered the continuation of the applicant's provisional
detention.
On 8 February 1993 the applicant was acquitted by the Criminal
Court (Mikto Orkoto Dikastirio) of Athens. The Court further decided
that no compensation should be given to the applicant for the time
spent in prison between 16 January 1992 and 8 February 1993, because
his detention "was due to his gross negligence".
2. Relevant domestic law and practice
a. Under Article 282 of the Code of Criminal Procedure, a person
accused of a crime punishable with sentence of imprisonment of at least
three months may be detained on remand if there exist serious
indications of guilt and if this is strictly necessary to prevent the
accused from committing further crimes or from absconding, or if the
accused is considered to be particularly dangerous.
b. According to Article 285 para. 1 of the Code of Criminal
Procedure, the accused may challenge, within five days, the warrant of
detention on remand.
c. Under Greek law, the maximum time of detention on remand is 18
months (Articles 6 para. 4 of the Greek Constitution and 287 para. 2
of the Code of Criminal Procedure).
d. Article 533 para. 2 of the Code of Criminal Procedure reads as
follows:
"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 ....".
Article 535 para. 1 of the same Code provides the following:
"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."
COMPLAINTS
1. The applicant complains under Article 5 para. 1 c) of the
Convention of his detention on remand which was unlawful in that there
were no reasonable suspicions against him.
In particular, the applicant complains that the investigating
judge and the Indictment Chambers did not respect national law when
ordering his arrest and detention on remand and when rejecting his
requests for conditional release, in that they failed to provide
adequate reasons as required by Article 282 of the Code of Criminal
Procedure.
2. The applicant complains that all legal documents concerning his
arrest, his detention on remand and his committal for trial were
notified to him in Greek, a language which he does not understand. He
invokes Articles 5 para. 2 and 6 para. 3 a) of the Convention.
3. The applicant claims that the duration of his detention on remand
exceeded the "reasonable time" and complains that he was not
conditionally released. He invokes Articles 5 para. 3 and 6 para. 1 of
the Convention.
4. The applicant complains that he did not receive compensation for
having been unlawfully detained in breach of Article 5 para. 5 of the
Convention.
THE LAW
1. The applicant complains under Article 5 para. 1 c) (Art. 5-1-c)
of the Convention of his detention on remand which was unlawful in that
there were no reasonable suspicions against him.
In particular, the applicant complains that the investigating
judge and the Indictment Chambers did not respect national law when
ordering his arrest and detention on remand and when rejecting his
claims for conditional release, in that they failed to provide adequate
reasons as required by Article 282 of the Code of Criminal Procedure.
Article 5 para. 1 c) (Art. 5-1-c) reads as follows:
"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 nothing in the file indicates that the
applicant challenged the warrant of detention on remand, pursuant to
Article 285 para. 1 of the Code of Criminal Procedure. However, even
assuming that the applicant has exhausted domestic remedies, this part
of the application is manifestly ill-founded for the following reasons:
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 Commission and the
Court, the provision refers back essentially to domestic law and lays
down the obligation to conform to the substantive and procedural rules
thereof (see Eur. Court H.R., Wassink judgment of 27 September 1990,
Series A no. 185, p. 11, para. 23).
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
(see Eur. Court H.R., Kemmache judgment of 24 November 1994, Series A
no. 296-C, para. 37).
In the present case, 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 order remanding him in detention
nor the orders rejecting his claims for conditional release mention any
elements which would have justified such a conclusion and alleges that
the only reason for his arrest was his presence at the apartment where
the three other persons were arrested.
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 (see 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, which detention is intended to
facilitate, to prove the reality and nature of the offences charged
(see Eur. Court H.R., Murray judgment of 28 October 1994, Series A
no. 300, para. 55; No. 8224/78, Dec. 5.12.78, D.R. 15 p. 211; No.
9627/81, Dec. 14.3.84, D.R. 37 p. 15; No. 10803/84, Dec. 16.12.87,
D.R. 54 p. 35).
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.
2. The applicant complains that all legal documents concerning his
arrest, his detention on remand and his committal for trial were
notified to him in Greek, a language which he does not understand. He
invokes Articles 5 para. 2 and 6 para. 3 a) (Art. 5-2, 6-3-a) of the
Convention.
Article 5 para. 2 (Art. 5-2) of the Convention reads as follows:
"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."
Article 6 para. 3 a) (Art. 6-3-a) of the Convention provides the
following:
"Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against
him.
(...)"
Insofar as the applicant complains under Article 5 para. 2
(Art. 5-2) of the Convention, the Commission notes that from the outset
of the proceedings, namely his defence to the investigating judge of
the Athens Court, the applicant was assisted by an interpreter and by
his lawyer. The Commission considers that in these circumstances the
applicant's complain is wholly unsubstantiated.
Insofar as the applicant complains under Article 6 para. 3 a)
(Art. 6-3-a) of the Convention, the Commission recalls that this
provision lists in a non-exhaustive manner a certain number of rights,
in the area of criminal law, which constitute essential elements of the
general notion of a fair trial contained in Article 6 para. 1
(Art. 6-1) (see no. 8403/78, Dec. 14.12.81, D.R. 27 p. 61). Moreover,
the Commission recalls that the question whether or not the right to
a fair hearing has been respected should depend on an evaluation of the
proceedings as a whole (see no. 10300/83, Dec. 12.10.84, D.R. 40
p. 180).
In this context, the Commission notes that the applicant was
acquitted by a first instance court and that, therefore, he can no
longer claim to be a victim of a violation of Article 6 para. 1
(Art. 6-1) 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 applicant claims that the duration of his detention on remand
exceeded the "reasonable time" and complains that he was not
conditionally released. He invokes Articles 5 para. 3 and 6 para. 1
(Art. 5-3, 6-1) of the Convention.
Article 5 para. 3 (Art. 5-3) of the Convention provides the
following:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 c) of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by
guarantees to appear for trial."
Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:
"In the determination (...) of any criminal charge against him,
everyone is entitled to a (...) hearing within a reasonable time
(...)"
The Commission recalls at the outset that Article 6 para. 1
(Art. 6-1) applies to all parties to court proceedings and its aim is
to protect them against excessive procedural delays. Article 5 para.
3 (Art. 5-3), for its part, refers only to persons charged and
detained. It implies that there must be special diligence in the
conduct of the prosecution of cases concerning such persons (see
Eur. Court H.R., Stögmüller case, judgment of 10 November 1969, Series
A no. 9, The Law para. 5).
In the present case the Commission notes that the applicant was
detained between 16 January 1992 and 8 February 1993, namely less than
18 months which is, under Greek law, the maximum duration of detention
on remand.
The Commission does not find, in this case, that there were
unexplained delays, caused by the failure of the authorities to conduct
the proceedings with the necessary diligence.
Furthermore, the Commission notes that the applicant's requests
for conditional release were rejected because he was considered to be
dangerous and suspected to flee the country. In view of these factors,
the Commission considers that the decisions to maintain the applicant
in detention on remand were not unreasonable.
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.
4. The applicant complains that he did not receive compensation for
having been unlawfully detained in breach of Article 5 para. 5
(Art. 5-5) of the Convention.
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 (see 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.
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