CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         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