AS TO THE ADMISSIBILITY OF
Application No. 32397/96
by Andy SINNESAEL
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 25 June 1996 by
Andy SINNESAEL against Greece and registered on 24 July 1996 under file
No. 32397/96;
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
30 June 1997 and the observations in reply submitted by the
applicant on 12 September 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Belgian national born in 1970. He is a worker
and resides in Kachtem, Belgium. In the proceedings before the
Commission he is represented by Mr. P. Verbist, 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 30 May 1993 the applicant was arrested together with J.C.D.
and R.R.V. for drug-related offences in Greece. The applicant was
placed in detention on remand. On 19 April 1994 the Indictments Chamber
of the Court of Appeal of Thrace authorised the applicant's continued
detention until 30 November 1994.
On 31 October 1994 the applicant and his two co-accused appeared
before the three-member Court of Appeal of Thrace (trimeles efetio),
which was competent to hear the case on first instance because of the
nature of the offences. The court found the applicant guilty and
sentenced him to 20 years imprisonment. His two co-accused were found
guilty as well. They all appealed.
The appeal was heard by the five-member Court of Appeal of Thrace
(pentameles efetio) on 25 January 1996. The court heard the evidence
and the parties' submissions on the question of the accused's guilt.
Then it withdrew for deliberations, in the course of which it reached
the following decision in respect of the applicant: "He must be given
the benefit of doubt and be declared innocent and the court must find
that he should not be compensated" ("Prepei epomenos na kirixthei logo
amfi volion athoos ton prazeon gia tis opoies katigoreitai kai
apofanthei to dikastirio sti den sintrexei periptosi apozimioseos
ton"). This verdict was read in open court together with the court's
verdict concerning J.C.D. and R.R.V. who were found guilty.
Then the court heard submissions on the penalty to be imposed on
J.C.D. and R.R.V. When sentencing J.C.D. and R.R.V. the court also
stated that the applicant was not to be compensated because he was
himself responsible for his detention and, as a result, Article 535
para. 1 of the Code of Criminal Procedure applied.
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 ... shall be entitled to request compensation ... if
it has been established in the proceedings that they did not
commit the criminal offence for which they were detained ..."
Article 535 para. 1
"The State shall have no obligation to compensate a person who
... has been detained on remand if, whether intentionally or by
gross negligence, he was responsible for his own detention."
Article 536
"1. Upon an oral application by a person who has been acquitted,
the court which heard the case shall rule on the State's
obligation to pay compensation in a separate decision delivered
at the same time as the verdict. However, the court may also
make such a ruling proprio motu...
2. The ruling on the State's obligation to pay compensation
cannot be challenged separately; it shall, however, be quashed
if the decision on the principal issue of the criminal trial is
reversed."
Article 537
"1. A person who has suffered loss may seek compensation at a
later stage from the same court.
2. In those circumstances the application must be submitted to
the prosecutor at that court no later than forty-eight hours
after the delivery of the judgment in open court."
Article 539 para. 1
"Where it has been decided that the State must pay compensation,
the person entitled thereto may bring his claim in the civil
courts, which shall not call in question the existence of the
State's obligation."
Article 540 para. 1
"Persons who have been unfairly ... detained on remand must be
compensated for any pecuniary loss they have suffered as a result
of their ... detention. They must also be compensated for non-
pecuniary loss..."
COMPLAINTS
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. He also complains that this is the final decision on
the matter.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 June 1996 and registered on
24 July 1996.
On 9 April 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
30 June 1997. The applicant replied on 12 September 1997.
THE LAW
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 that this 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
established by law."
The Government argue that the applicant has not exhausted
domestic remedies because he never applied for compensation for his
detention on remand. They submit that, after its first round of
deliberations on the applicant's guilt, the appeal court simply
expressed an indication as to the applicant's entitlement to
compensation. It was then for applicant's counsel to take the floor and
formally apply for compensation. However, he failed to do so and the
court, when sentencing the two co-accused persons, confirmed that the
applicant should not be paid any compensation. As for the rest, the
Government submit that the applicant did not have a "right" to be
compensated, because the courts enjoy unfettered discretion in this
connection under domestic law. In any event, the question concerning
compensation for detention on remand is not of a "civil" law nature.
As a result, Article 6 para. 1 (Art. 6-1) of the Convention did not
apply. Finally, the Government submit that the court was right in
considering that the applicant was responsible for his detention and
point in this connection to his criminal record and to the fact that
the reason for his acquittal was that the court had doubts as to his
guilt.
The applicant submits that he could not have applied for
compensation after the court had "decided" after its round of
deliberations that he should not be compensated. As for the rest, he
refers to the Georgiades v. Greece judgment of the Court, where it was
considered that there is a "right" to be compensated under domestic
law, that this right is "civil" and that there had been a violation of
Article 6 (Art. 6) of the Convention because Mr. Georgiades had not
been heard in connection with his entitlement to compensation and the
decision of the court did not contain any reasons (Eur. Court HR,
Georgiades v. Greece judgment of 29 May 1997, Reports 1997-III, No.
38). The applicant submits that his case is not different in any
significant respect.
The Commission notes the parties' disagreement as to whether the
applicant was given the chance to apply for compensation. It considers
that this question is related to the substance of the applicant's
complaints. It also considers that the applicant's complaints raise
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 J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy