CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 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