CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 mars 2001

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Baka , President ,   Mr   C.L. Rozakis ,   Mr   G. Bonello ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   E. Levits , judges , and   Mr   E. Fribergh , Section Registrar ,     Having regard to the above application introduced on 14 June 1999 and registered on 16   December 1999,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having deliberated, decides as follows: THE FACTS The applicant is a Hungarian national, born in 1971 and living in Vecses (Hungary). She is represented before the Court by Mr C. Mester, a lawyer practising in Budapest. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 13 May 1996 a private individual, in his capacity as representative of a commercial company, lodged a criminal complaint with the Greek authorities against the applicant. As a result, criminal proceedings were instituted against her and two other Hungarian citizens for fraud which had caused particularly high damage and which had been committed by persons who commit acts of fraud as a profession. On 16 April 1997 the investigating judge summoned the applicant to appear before her and submit statements in defence. At the same time, the investigating judge invited the competent Hungarian Judicial Authorities to provide judicial assistance according to Article   457 of the Code of Criminal procedure. The relevant application to these authorities indicated that the proceedings were based on the above-mentioned complaint and some testimonies. Finally, the investigating judge sent a fax message to the Police Station of Makrygialos, Pierria, where the applicant normally resided, whereby she summoned again the applicant to appear before her. By a document of 3 September 1997, the Ministry of Justice informed the investigating judge that the Hungarian Judicial Authorities had served on the applicant the summon to appear of 16 April 1997. On 13 October 1997 the investigating judge issued an arrest warrant against the applicant following an opinion of the Public Prosecutor to the First Instance Criminal Court of Piraeus. The arrest warrant indicated the offence of which the applicant was charged, the relevant facts of the case and the relevant Articles of the Criminal Code. After the completion of the investigation proceedings, the file was transmitted to the Public prosecutor who, on the basis of the file of the case, proposed to commit the applicant and two other Hungarian citizens for trial before the three-member Court of Appeal of Piraeus. Furthermore, the Public Prosecutor proposed that the arrest warrant should continue to produce its effects and that the accused be detained until the hearing, in the event that they were arrested. On 19 March 1998 the indictments chamber of the three-member Court of Appeal of Piraeus adopted the proposal of the public prosecutor Its decision no.571/1998 was delivered on 1 June 1998. The applicant came to Greece on 1 August 1998 and was arrested in Katerini on 3   August 1998, at 7.15 p.m. According to the Government, the arrest warrant was shown to the applicant and its content was made known to her both in Greek and English. The Government maintain that the applicant had a certain knowledge of the Greek language by reason of her continuous presence in Greece since 1994 and her professional co-operation with Greek travel agencies. Moreover, as the applicant had stated in her application, a Greek associate of her was present and acted as an interpreter. The applicant was invited to sign the arrest report. The Government contend that at no moment did the applicant ask for a lawyer or an interpreter to be appointed. According to the applicant, the police officers told her that she had been arrested because her passport was forged. The applicant further claims that she was informed of the charges two days after her arrest. She also maintains that she spent the night in a police station sitting on a chair. The morning after, she was asked to sign some documents in Greek. The applicant refused and was placed in a cell. The applicant asked for an interpreter and a lawyer. Her requests were not granted. On 4 August 1998 the applicant was brought to the police station of Katerini where she was kept until 7 August 1998 at 6 a.m. The applicant describes the conditions of her detention in the police station in Katerini in the following manner: The cell was small and dirty. She was not given any food or drink. She could not wash herself. The guards would come into her cell at night, harass her sexually and laugh at her. She was not interrogated during that period of time. She could not communicate with anybody in English. On 7 August 1998 the applicant was transported to a police detention centre in Piraeus. She claims that, during the transport, she was sexually harassed by the guards. The applicant met her lawyer on 10 August 1998. The lawyer arranged for her to be transported to Korydallos women’s prison. She claims that in Korydallos prison she was kept together with “common criminals”. Being a vegetarian, she could not eat the food served. As a result, she started losing her hair. She was not interrogated during this period of time either. The Government maintain that she was placed in a ward of the first floor of wing B of the prison in which female foreigners are detained. On 2 September 1998, on her request, she was transferred to another cell where she remained until her release. The Government contend that the applicant never complained either in writing or orally about her detention to the prison management or the supervising Public Prosecutor, as she had the right under the relevant legislation. On 13 August 1998 the applicant appealed against decision no. 571/1998 of the indictments chamber of the First Instance Criminal Court of Piraeus. She also applied for release. The Government point out that the text of the appeal was thoroughly substantiated and contained a great number of legal allegations which presupposes that the applicant had full knowledge of the facts underlying her arrest and detention as well as the proceedings conducted until then. According to the Government, the applicant had already contacted her lawyer on a date prior to the drafting of her appeal and was acquainted with the file. On 18 September 1998 and 11 November 1998 the applicant submitted further observations to substantiate her appeal and reiterated her application for release. On 17 December 1998 the indictments chamber of the Appeal Court of Piraeus adopted the Public Prosecutor’s proposal not to bring the applicant to trial. Accordingly, it dismissed the proceedings against the applicant and ordered her release. Furthermore, it held that no compensation should be granted to the applicant for her detention pending trial, because her detention was due to her own gross negligence. Gross negligence consisted in the fact that the applicant had refused to appear before the investigating judge in order to rebut the charges and produce the relevant documents which were later submitted before the indictments chamber and which would have prevented her from being provisionally detained, if they had been submitted at an earlier stage. The applicant was released on 21 December 1998. On 22 December 1998 she was expulsed from Greece. B.     Relevant domestic law The Code of Criminal Procedure provides as follows: Article 533 § 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.” Article 535 § 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 §§ 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.” COMPLAINTS 1.     The applicant complains under Article 3 that she was ill-treated while in detention on remand.   2.     She also complains under Article 5 that she was arrested and detained although there was no reasonable suspicion against her and that she was not promptly informed in a language she could understand of the reasons for her arrest.   3.     Finally, the applicant complains under Article 6 about the fairness of the proceedings. She, inter alia , complains that she did not have access to counsel and an interpreter in the aftermath of her arrest and that she did not have a fair hearing in the matter of compensation for her allegedly unlawful detention. THE LAW 1.     The applicant alleges that she was repeatedly ill-treated while in police custody. She invokes Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The applicant alleges that the conditions of her detention during 140 days in prison were awful and humiliating. At the police station of Katerini, on the first day, she spent the whole night sitting on a chair, and after the night, as she refused to sign some documents written in Greek, she was locked in a small dirty cell. At night, the guards went into her cell and harassed her sexually and laughed at her. As she was a vegetarian and in prison she did not get a suitable food, she started losing her hair. The applicant further maintains that she complained about her ill-treatment to her husband, to her brother and to the Hungarian consul. The letters that she wrote during her detention were full of complaints about her suffering, but she could meet no judge or prosecutor to whom she could have submitted these complaints. The Government submit that not only did the applicant fail to exhaust domestic remedies but she did not even make use of any of the remedies offered by the domestic legal system. Such failure on the part of the applicant, who did not omit to appeal for her release, not only bars her from complaining about the conditions of her detention but also raises serious doubts as to her credibility. The Court notes that the applicant complained about the conditions of her detention when she went back to Hungary. However, when she was detained in the Korydallos prison, she never attempted to bring her complaints to the attention of the police director or the public prosecutor although she had, since 10 August at least, been assisted by a lawyer. It follows that the applicant has not satisfied the condition of exhaustion of domestic remedies in this respect and that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2.     The applicant alleges that she was not informed promptly and in a language she could understand of the reasons for her arrest, in breach of Article 5 § 2 which 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.” The applicant contends that arrest warrant was not shown to her at the time of the arrest and its content was not read to her in English and Greek, as the Government maintain. She claims that she does neither speak nor understand Greek. On 3 August 1998 two plain ‑ clothed policemen called at her flat and checked her passport. They told her to follow them because her passport was forged. She was only told about the reasons for her arrest a week later, on 10 August 1998, when she met her lawyer. The lack of an official report, signed by the police, the applicant and the translator at the time of the arrest, proves that the applicant was not promptly informed of these reasons. The Government challenge the applicant’s statement of facts. They claim that the arrest warrant was shown to the applicant and at the same time the content thereof was read to her both in English and in Greek. The applicant could understand Greek as she was living in Greece since 1994 and had professional relations with Greek travel/tourist agencies. They further emphasise, as the applicant herself stated in her application, that at the time of her arrest a Greek associate was present who translated into English. The Court notes that the facts are disputed between the parties. However, it also notes that in none of the observations submitted to the competent judicial authorities had the applicant raised any such complaint. Accordingly, she has not exhausted domestic remedies in this respect. It follows that this part of the application must be rejected in accordance with Article   35 §§   1 and 4 of the Convention. 3.     The applicant alleges that the arrest warrant against her was based on a summons to appear before the investigating judge which was never served on her. As a result her arrest and ensuing detention were in breach of Article 5 § 1 c) which reads as follows: “1.     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 applicant contends that she never received the summons of the investigating judge of 16   April 1997. The summons was sent to a wrong address in Hungary, at which the applicant had never resided. The certificate of service provided by the Government was received by the office of Hydra Tours Ltd. at a totally different address and by an unauthorised person. The certificate of service bore the stamp of the company and a signature which was illegible but which was not the applicant’s signature. Even assuming that the applicant had received the summons - which she had not - it would have been illogical to go to Greece for holidays, a country where criminal proceedings were pending against her. The Government submit that although the applicant had been lawfully summoned to appear before the investigating judge (within the framework of judicial assistance and with the participation of the Hungarian judicial authorities) she did not appear. As a result, the investigating judge was obliged, according to the relevant legislation, to issue an arrest warrant against her. The Court notes that for notifying the summons to the applicant, the investigating judge asked on 16 April 1997 for judicial assistance from the Hungarian Judicial Authorities. Furthermore, by a fax message of 22 May 1997, the investigating judge invited the police station of Makrygialos, Pierria, where the applicant was thought to reside, to deliver the summons. On 3 September 1997, the Greek Ministry of Justice sent to the investigating judge the notice of receipt of the summons in Budapest and on that basis the investigating judge issued the arrest warrant. The question whether the summons had been delivered personally to the applicant or not, since the signature on the receipt was illegible, does not entail the responsibility of the competent Greek authorities which proceeded on the assumption that the summons was notified to the applicant. Moreover, on 1 June 1998, the indictments chamber had decided to commit her for trial before the three-members court of Appeal of Piraeus. The applicant was thus arrested and detained for the purpose of being brought before the competent legal authority, within the meaning of Article 5 § 1 c). In the circumstances, the Court is satisfied that the applicant’s detention was lawful. It follows that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 4.     The applicant alleges a violation of Article 5 § 3 which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The applicant maintains that she has been detained in the women’s prison of Korydallos for several months until her release in December 1998 without being at all interrogated. The Court notes with the Government that the applicant was not interrogated during the period of her detention because the investigation procedure had been completed and the indictments chamber had decided on 19 March 1998 to commit her for trial. On 13 August 1998 the applicant appealed against that decision and on 18 September 1998 and 11   November 1998 submitted observations before the indictments chamber of the Court of Appeal. The latter delivered its decision on 17 December 1998 and the applicant was released on 21 December 1998. Although she was released four days after the decision acquitting her in circumstances which are specified, the Court notes that the applicant did not raise any specific complaint in this respect and accordingly does not consider it necessary to examine this point ex officio . The Court considers accordingly that the length of the applicant’s detention did not exceed the “reasonable time” guaranteed by Article 5 § 3. It follows that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 5.     The applicant alleges that she was denied access to a lawyer for 8 days following her arrest. She invokes Article 6 § 3 c) which reads as follows: “Everyone charged with a criminal offence has the following minimum rights: (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” The applicant claims that she was informed of the proceedings against her only on 10   August 1998, that is 8 days after her arrest. Although she had asked a police officer to have access to a lawyer from the date of her arrest, her request was denied. The applicant wanted to have the assistance of a lawyer already at that stage because she was arrested in a foreign country and could not understand Greek. The Government maintain that no public authority denied to the applicant the right to defend herself in person or through legal assistance. As of the moment the applicant had received the summons to appear before the investigating judge, she could at least have sent to her copies of the documents which she submitted for the first time with her appeal against the decision of the indictments chamber and from which it transpired that she was not involved in the fraud committed against the complainant. Thus the complainant’s allegations would have been fully rebutted and the investigation would have been regarded as completed even if she had not appeared before the investigating judge, since there would not have been sufficient elements for a finding of guilt under Article 270 § 1 of the Code of Criminal Procedure. Furthermore, she could have appeared before the investigating judge in person or with a lawyer either before or after the arrest warrant had been issued. The Court recalls that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. Although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, the right may be subject to restriction. The question is whether the restriction, in the light of the entirety of the proceedings has deprived the accused of a fair hearing ( Magee v.   the United Kingdom , n°   28135/95, §   41, to be published in CEDH 2000). In the present case the Court notes that at the time of the arrest of the applicant, the preliminary investigation was completed and the indictments chamber had committed the applicant for trial. On 3 August 1998 the applicant was arrested and detained awaiting trial. At no time was she interrogated by the police authorities or the investigating judge. Since 10   August 1998 at the latest, the applicant had the assistance of a lawyer and on 13 August 1998 she appealed against decision 571/1998 of the indictments chamber. It does not transpire from the file that the applicant was denied legal assistance before 10 August 1998 or that her rights of the defence were prejudiced during that period. It follows that this part of the application must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 6.     The applicant complains that she did not have a fair hearing in the matter of compensation for her allegedly unlawful detention. She invokes Article 6 §1 which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government submit that the indictments chamber’s decision was adequately reasoned. The Court examined the applicant’s complaint in particular as regards the issue of whether the applicant was heard by the indictment’s chamber and whether that chamber had given sufficient reasons in its decision whereby it held that the applicant was not entitled to compensation for her detention on remand. In view of the arguments of the parties, the Court considers that the application raises serious issues under Article 6 § 1 of the Convention which require determination on the merits. It follows that this complaint cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint that [Note1] she did not have a fair hearing in the matter of compensation for her detention; Declares inadmissible the remainder of the application.   Erik Fribergh   Andràs Baka     Registrar   President [Note1]   Summarise the complaints without necessarily citing the invoked Convention Articles.