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You are here: BAILII >> Databases >> European Court of Human Rights >> BIZZOTTO v. GREECE - 22126/93 [1996] ECHR 50 (15 November 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/50.html
Cite as: [1996] ECHR 50
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In the case of Bizzotto v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr K. Jungwiert,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 28 August and 28 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 76/1995/582/668. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 22126/93) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by an Italian national, Mr Carlo Bizzotto,
on 15 June 1992.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 1 of the Convention (art. 5-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30). The Italian Government, having been
informed by the Registrar of their right to intervene (Article 48 (b)
of the Convention and Rule 33 para. 3 (b)) (art. 48-b), did not
indicate any intention of so doing.
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 29 September 1995, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr B. Walsh,
Mr C. Russo, Mr J. De Meyer, Mr J.M. Morenilla and Mr K. Jungwiert
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr E. Levits, substitute judge, replaced Mr Walsh, who was
unable to take part in the further consideration of the case (Rules 22
para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Greek Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 23 May 1996 and the
applicant's memorial on 29 May 1996.
On 9 January 1996 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 August 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Adviser;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr A. Accolti Gil,
Mr G. Cardini, both of the Florence Bar, Counsel.
The Court heard addresses by Mr Pellonpää, Mr Accolti Gil and
Mrs Grigoriou.
AS TO THE FACTS
I. Circumstances of the case
A. The applicant's conviction for drug trafficking
6. On 4 March 1990 Mr Bizzotto was arrested in transit at
Athens Airport while in possession of 3.5kg of cannabis which he had
purchased in Islamabad (Pakistan) for 1,000 US dollars. He was
detained pending trial in Korydallos Prison, Athens.
7. On 6 May 1991 the Athens Court of Appeal, sitting as a
first-instance criminal court with three judges (Trimeles efetio
kakourgimaton), held as follows (in judgment no. 986/1991):
"The Court finds the defendant guilty of having deliberately
and as a drug addict (a) purchased in Islamabad, Pakistan, on
1 March 1990 approximately 3.5kg of Indian hemp from persons
unknown for the sum of 1,000 US dollars (b) brought the said
cannabis from Karachi (Pakistan) to Athens by plane on
4 March 1990, (c) imported it into Greece on 4 March 1990 and
(d) had it in his possession, wrapped in the lining of an
anorak, at Athens Airport on 4 March 1990.
The stratagems the defendant used to hide and transport this
cannabis, the ease with which he travelled on several
occasions to Pakistan, Thailand and other eastern countries
and obtained cannabis in Pakistan, the connections which he
has in that country, his knowledge of how strict customs
security measures are in different countries, his previous
convictions for drug-related offences, and the large quantity
of cannabis he purchased for resale, show him to be
particularly dangerous."
It sentenced him to eight years' imprisonment and a fine of
two million drachmas. In addition, it suspended his civic rights for
five years and ordered that he be permanently prohibited from
re-entering the territory after his release. Lastly, it ordered his
placement in an appropriate centre to receive treatment for his
drug addiction (under section 14 of Law no. 1729/1987 -
see paragraph 15 below).
8. On 22 October 1992, on an appeal by the applicant, the
Athens Court of Appeal sitting with five judges (Pentameles efetio)
upheld the judgment of the court of first instance (see paragraph 7
above) but reduced the sentence to six years' imprisonment and a fine
of one million drachmas (judgment no. 1003/1992). It also ordered "the
defendant's placement in an appropriate prison or in a State hospital
where he can receive treatment for drug addiction".
However, Mr Bizzotto was never admitted to any such
institution; he served his sentence in Patras Prison.
In a letter of 26 November 1992 the public prosecutor notified
the governor of Patras Prison of the Court of Appeal's decision and
indicated that the part of the judgment dealing with the applicant's
placement in a prison with medical facilities did not apply as no such
institutions existed. However, he added that he would contact the
governor if such an institution opened before Mr Bizzotto finished
serving his sentence.
B. The applicant's four requests to be released on licence
9. While detained at Patras Prison the applicant made
four applications to the Patras Criminal Court (Trimeles
plimmeliodikio) to be released on licence; three of them were made
before the Athens Court of Appeal sitting with five judges had
delivered its judgment (see paragraph 8 above).
1. The first application
10. In his first application, made on 4 December 1991, Mr Bizzotto
maintained that he had been cured and had ceased to be at all dependent
on drugs during his long stay in prison and after medical treatment.
He also stated that he had a wife and family, that he owned a
profitable farm in Italy and that he was determined not to reoffend in
future. He requested his release on licence under section 23 of
Law no. 1729/1987 (see paragraph 15 below).
In a decision (no. 595/1992) of 3 February 1992 the
Patras Criminal Court dismissed the application.
It began by noting that it was objectively impossible to admit
drug addicts to treatment centres as no such centres existed.
It added:
"It is apparent from sections 14 and 23 of Law no. 1729/1987
... that a person who has been convicted under that
Law and has been found to be a drug addict must be
placed in an appropriate prison or in a State hospital for
special treatment. The placement cannot last for less than a
year. During the period of treatment, the convicted person is
examined periodically in order to establish whether he has
been cured or whether the placement must continue. Periodic
reviews begin after one year and are carried out by the court
either of its own motion or on an application by the
prosecution. If the court ... considers - after studying the
relevant expert's report - that the accused has been cured, it
orders his discharge from the centre; if the term of
imprisonment to which he has been sentenced is longer than the
period of treatment, the prisoner is returned to prison to
serve the remainder of his sentence. In that case, if the
court considers that there is no serious reason why the
prisoner should serve the remainder of his sentence, it orders
his release on licence.
... Persons who have become habitual users of drugs and are
unable to give up the use of them voluntarily - in other words
`drug addicts' - are patients and are treated as such under
section 23. It is to be noted that the Greek legislation in
force ... does not use the scientifically accepted term of
`drug addict' but the expression `user of narcotic substances
subject to special treatment' (section 13 (1) of
Law no. 1729/1987) ...
The release on licence of persons convicted under Article 105
of the Criminal Code should not be confused with the discharge
of convicted drug addicts under the provisions of section 23
of Law no. 1729/1987. In the first case the aim pursued is
solely that of rehabilitation, whereas in the second case it
is also therapeutic ... For an application to this end by a
convicted person to be admissible it is a prerequisite that
(a) he has been placed in a centre to receive treatment for
drug addiction and (b) he has spent at least one year in such
a centre and is considered cured ... A problem arises where
a convicted person has never been admitted to such a centre.
In that case, section 23 does not apply, because the
procedural requirement will not have been satisfied. Such a
person is deprived of his right to make such an application,
which will accordingly be inadmissible. This is not affected
by his alleged recovery in prison while serving his sentence.
The fact that the prison psychiatrist has certified that he
has been cured is of no avail. On the other hand, it raises
serious questions and doubts as to the objectiveness of the
findings in the psychiatric reports made during the
investigation and taken into account by the relevant courts.
Although these persons are described as 'drug addicts' ... in
these reports, within a few months they are regarded as
'completely cured' after non-existent treatment and merely
taking aspirin or Hypnostedon.
...
Besides, the essential requirements for an application to be
admissible are that the convicted person has made a full
recovery and that there is no serious reason why he should
serve the remainder of his sentence.
...
In order to make a finding that there is a 'serious reason',
it is necessary to have regard to the criteria laid down in
Article 106 para. 1 of the Criminal Code.
It appears from the case file that the applicant does not
satisfy the essential conditions laid down by law, in
particular as regards his complete cure. In view of his
antecedents ... and character, it is unlikely that the
applicant will lead an honest life on leaving prison as he
shows a marked tendency to commit drug-related offences."
2. The second application
11. On 5 February 1992 the applicant made a second application for
release on licence, in which he essentially repeated the same arguments
as he had put forward in the first (see paragraph 10 above).
On 27 February 1992 the Patras Criminal Court dismissed the
application (in decision no. 1119/1992) in the following terms:
"The court is not convinced either from the documentary
evidence or from the applicant prisoner's personal attendance
before it that he is totally cured of his dependence on drugs.
He has not been admitted to an appropriate treatment centre
and the treatment in Patras Prison is insufficient to cure him
of an addiction acquired over a very long period of drug use.
In addition, no prison psychiatrist's certificate as to the
progress of his treatment has been produced ..."
3. The third application
12. On 4 March 1992 the applicant made a third application,
supported by psychiatric certificates of his recovery. He sought to
benefit from the provisions of section 23 of Law no. 1729/1987
(see paragraph 15 below).
At the hearing he admitted that he had "been taking drugs"
since the age of 19 and had even taken heroin in the past. However,
he said that he had managed to cure himself of his drug addiction
whilst in prison, where conditions were not conducive, and added that,
if his imprisonment were to continue, his condition would get worse.
In a decision (no. 2694/1992) of 27 May 1992 the
Patras Criminal Court reached the following conclusions:
"The prison doctor's diagnosis is not sufficient to prove that
the applicant has recovered. The latter's application is
inadmissible since he has not been admitted to an appropriate
prison similar to the psychiatric clinic at Korydallos Prison.
Furthermore, at the time of the application the applicant had
served two years, one month and twenty-six days of his
sentence and there is a serious reason for his serving the
remainder, especially as his criminal record shows that in
1974 he was sentenced by the Athens Assize Court to
three years' imprisonment for a drug-related offence."
13. In a letter of 9 June 1993 the Minister of Justice, replying
to an application by Mr Bizzotto to be placed in a treatment centre for
drug addicts, informed him that there was no such centre inside the
prison.
4. The fourth application
14. On 15 December 1993 the applicant made a fourth application for
his release on licence, relying on Articles 105 and 106 of the
Criminal Code (see paragraph 16 below). He said that he had served
three-fifths of his sentence and had been of exemplary conduct
throughout his time in prison. He was no longer addicted to drugs and
was therefore no longer a danger to society; his continued detention
would be harmful to him and could no longer be justified.
On 11 February 1994 the Indictments Division
(Symvoulio plimmeliodikon) of the Patras Criminal Court granted his
application. It found that he had already served four years and
fourteen days of his sentence - that is to say more than half of the
sentence imposed and more than the one-year minimum (Article 105 of the
Criminal Code) - and that during his time in prison he had been of good
conduct, had shown repentance, had complied with prison regulations and
had not incurred any disciplinary penalties.
II. Relevant domestic law
A. Law no. 1729 on the prevention of drug trafficking, the
protection of young persons ... of 3 and 7 August 1987
15. The relevant provisions of Law no. 1729/1987 are as follows:
Section 3
"(1) The prevention of pharmaceutical dependence on
narcotic substances within the meaning of section 4 of this
Law shall be organised at three levels:
(a) preventive information;
(b) treatment;
(c) reintegration into society.
(2) For the purposes of implementing this programme, there
shall be set up by joint decisions, published in the
Official Gazette, of the Minister of Health, Welfare and
Social Security and the Minister competent in each given case:
(a) ...
(b) special drug-addiction units and prisons with medical
facilities;
(c) ..."
Section 5
"(1) A term of imprisonment of at least ten years and a
fine of between 100,000 and 100,000,000 drachmas shall be
imposed on anyone who:
(a) imports or exports drugs or causes them to transit through
Greece;
(b) sells or buys drugs or makes them available in any way
whatsoever to third parties or acts as an intermediary or
stores drugs or puts drugs into storage;
...
(g) possesses or transports drugs in any manner and by any
means whatsoever, either on Greek territory or alongside or
across territorial waters or in Greek airspace;
..."
Section 8
"Anyone who commits any of the offences referred to in
sections 5, 6 and 7 shall be liable to life imprisonment if he
is a reoffender or if he acts by way of occupation or
habitually or if he has acted with a view to causing minors to
use drugs or if the circumstances in which the offences were
committed show him to be particularly dangerous."
Section 12
"(1) Anyone who solely for their own use obtains or
possesses by any means whatsoever a small quantity of drugs or
uses drugs shall be liable to imprisonment. The sentence
shall be served in a special prison with medical facilities.
(2) If any person using drugs as stated in subsection (1) has
not been finally convicted of another offence under this Law
and does not show any symptoms of dependence on narcotic
substances, the court, having regard to the particular
circumstances of the case and the personality of the convicted
person, shall, instead of imposing the sentence referred to in
subsection (1), order that the convicted person follow a
consultation and support programme determined by the
Minister of Health, Welfare and Social Security ... at the
medical centres in each prefecture, at clinics or other
similar institutions.
If the convicted person does not comply with the order, the
court shall order his placement in an appropriate institution
to follow the same programme."
Section 13
"(1) Persons who have become habitual users of drugs and
cannot give up the use of them voluntarily shall receive
special treatment in accordance with the provisions of this
Law.
(2) The court shall determine whether the conditions referred
to in the preceding subsection are met in the case of the
accused or convicted person after an examination at a
specialist treatment centre for drug addicts ...
(3) An offender to whom all the conditions set out in
subsection (1) apply shall, if found guilty of
(a) the offence under section 12 (1), not be punished, but
will be subject to the application mutatis mutandis of the
provisions of the second paragraph of section 14 (1) of this
Law;
(b) the offences referred to in sections 5, 6 or 7, be liable
to at least three months' imprisonment and a fine of between
50,000 and 10,000,000 drachmas; ...
(c) the acts referred to in section 8, be liable to a maximum
of ten years' imprisonment and a fine of between 1,000,000 and
200,000,000 drachmas."
Section 14
"(1) Any offender in respect of whom the conditions set out
in section 13 (1) and (2) of this Law are met and who has been
detained pending trial in accordance with the
Code of Criminal Procedure or who has been convicted of any
offence whatsoever shall be placed in an appropriate prison
with medical facilities. If he is held not to be criminally
responsible under Article 34 of the Criminal Code, he shall be
placed in a State hospital. In both cases he shall be subject
to a special treatment programme determined by the
Minister of Health, Welfare and Social Security.
(2) Where a person is sentenced to a term of imprisonment, any
time spent in hospital shall be reckoned as time served in
prison."
Section 23
"(1) If an offender's period of hospitalisation under
section 14 exceeds one year, which is the minimum period of
treatment, the head of the institution in which he has been
placed shall at the end of each year make a report on the
progress of his treatment to the public prosecutor at the
Criminal Court for the place where the sentence or preventive
measure is to be carried out and shall indicate whether the
convicted person should remain in the institution. On the
basis of this report the Criminal Court, sitting with
three judges, shall decide whether detention should continue.
The court, which may also order an expert's report under
section 13 (2), shall make a final decision whether detention
in hospital should continue.
(2) If a person detained in a hospital has recovered and was
found not to be criminally responsible under Article 34 of the
Criminal Code, the court shall order his release on an
application by the public prosecutor. If part of his sentence
remains to be served, the court shall decide whether there is
a serious reason why he should serve the remainder, but
otherwise shall order his release on licence. The conditions
attached to his release may concern his way of life, and in
particular his place of residence, and include an obligation
to attend the clinic, special drug-addiction centre or general
hospital nearest to his place of residence whenever requested
to do so for the purposes of checking that the conditions are
being complied with ...
(3) If the person detained is not released under the preceding
subsection, the court shall decide at the end of each year, on
application by the detained person himself, the director of
the institution in which he is detained or the
public prosecutor, whether he should be released.
..."
B. Criminal Code
16. Articles 105 para. 1 and 106 of the Criminal Code provide:
Article 105 para. 1
"Anyone who has been sentenced to a term of imprisonment may,
after serving two-thirds of his sentence and in any event at
least one year or, in the case of a life sentence,
twenty years, be released on licence in accordance with the
following provisions."
Article 106
"(1) A prisoner shall only be released on licence if he has
been of good conduct while serving his sentence, has performed
as far as possible his obligations towards the victim ... and
if his antecedents, his personal and social circumstances in
general and his character ... give cause for hope that he will
lead an honest life in the future.
(2) The prisoner may be required to comply with certain
obligations relating to his way of life and in particular his
place of residence. These obligations may at any time be
withdrawn or varied on application by the prisoner.
..."
C. Code of Criminal Procedure
17. Article 565 of the Code of Criminal Procedure provides:
"Doubts as to the nature or length of the sentence
Any doubt or objection as to the execution of the judgment or
as to the nature or length of the sentence shall be decided by
the Criminal Court for the district where the sentence is to
be served. The public prosecutor or the convicted person may
appeal to the Court of Cassation on points of law against such
a decision."
D. The Minister of Justice's circular of 23 September 1992
18. In a circular of 23 September 1992 the Minister of Justice
informed the public prosecutors at the courts of appeal and the
courts of first instance and prison governors that there were no
prisons with medical facilities in Greece as mentioned in section 14
of Law no. 1729/1987. Consequently, it was not possible to implement
court orders directing that drug addicts be placed in such prisons
under that section.
PROCEEDINGS BEFORE THE COMMISSION
19. Mr Bizzotto applied to the Commission on 15 June 1992. He
alleged a violation of Article 5 para. 1 of the Convention (art. 5-1)
for failure to place him in an appropriate centre to receive treatment
for his drug addiction.
20. On 2 December 1994 the Commission declared the application
(no. 22126/93) admissible. In its report of 4 July 1995 (Article 31)
(art. 31), it expressed the opinion by eight votes to seven that there
had been a violation of that Article (art. 5-1). The full text of the
Commission's opinion and of the two dissenting opinions contained in
the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
21. In their memorial the Government invited the Court to "dismiss
Carlo Bizzotto's application in its entirety".
22. The applicant requested the Court to hold
"(1) that there was not a lawful detention after conviction by
a competent court as required by the wording of Article 5
para. 1 (a) of the Convention (art. 5-1-a), since there was a
clear contrast between the detention the applicant was
sentenced to by the Greek court and the detention he actually
served;
(2) that the applicant's continuous detention for four years
and fifteen days in an ordinary prison, although he was a
drug addict and therefore entitled to be detained in an
appropriate place, constitutes a violation of Article 5
para. 1 (e) read in conjunction with Article 18 of the
Convention (art. 18+5-1-e);
(3) that the applicant and his family are entitled to receive
compensation for non-pecuniary and pecuniary damage and the
costs and losses suffered as a consequence of the recognised
violations of the Convention; and
(4) that the Greek Government are to pay appropriate
compensation, including legal costs, to the applicant and his
family by way of just satisfaction."
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
23. As before the Commission, the Government's main submission was
that the application was inadmissible for failure to exhaust
domestic remedies and to comply with the six-month time-limit laid down
by Article 26 of the Convention (art. 26).
A. Failure to exhaust domestic remedies
24. The Government submitted that Mr Bizzotto had failed to exhaust
the remedies available to him in Greek law as required by Article 26
of the Convention (art. 26) as he had not brought an action under
Article 565 of the Code of Criminal Procedure (see paragraph 17 above)
to challenge the manner in which his sentence was to be enforced.
25. The Court points out that Article 26 of the Convention
(art. 26) requires only that available and sufficient remedies for the
alleged violation be exhausted. An action brought under Article 565
of the Code of Criminal Procedure, however, would not have been
effective in the circumstances of the case; when sentencing the
applicant, the Athens Court of Appeal, sitting as a
court of first instance, also ordered his placement in an appropriate
centre to receive treatment for his drug addiction (see paragraph 7
above). However, as the Government said, no centre of that type
existed in Greece at the material time. Such an action would therefore
have been bound to fail. Consequently, the relevant objection must be
dismissed.
B. Failure to comply with the six-month time-limit
26. In addition, the Government invited the Court to dismiss the
application under Article 26 of the Convention (art. 26) for failure
to comply with the six-month time-limit. Time had in fact started to
run, they said, on 6 May 1991 (the date of the decision of the
Court of Appeal sitting as a court of first instance) as the
applicant's complaint related to the situation created after that
decision when he was sent to Patras Prison instead of to a prison with
medical facilities.
27. The Court notes that Mr Bizzotto complained of a situation that
had begun when he was sentenced by the Athens Court of Appeal sitting
as a court of first instance and had continued until his release on
11 February 1994. His complaint was essentially directed at the manner
in which judgment no. 986/1991 had been executed. During that period
he had made four applications for release on licence; the first three
had been based on section 23 of Law no. 1729/1987 and the
Patras Criminal Court had dismissed them on the ground that he had not
been cured of his addiction (see paragraphs 10-12 above).
By making an application to the Commission on 15 June 1992
(a few days after the dismissal of his third application -
see paragraph 12 above), the applicant satisfied the requirement of
Article 26 (art. 26) in that regard. The relevant objection must
therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION
(art. 6-1)
28. Mr Bizzotto submitted that his detention in Patras Prison had
infringed Article 5 para. 1 of the Convention (art. 5-1), which
provides:
"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:
(a) the lawful detention of a person after conviction by a
competent court;
...
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
..."
The applicant complained of the obvious contrast between the
conditions in which the Greek courts had ordered him to be detained and
those in which he was in fact held. He had been sent to an ordinary
prison without any medical facilities for ensuring the proper execution
of his sentence and had received treatment wholly unsuited to him as
a drug addict. In the second place, the fact that he was not placed
in a treatment centre had prevented him being released on licence under
section 23 (2) of Law no. 1729/1987. If he had been cured of his
drug addiction, as the Government alleged, the Patras Criminal Court
should have ordered his release on licence as there was no serious
reason why he should serve the remainder of his sentence; he argued
that evidence of this had been provided by the Criminal Court's
decision of 11 February 1994 to release him (see paragraph 14 above).
On the other hand, if his condition had not improved, as that same
court had held on three occasions, it was due to the failure to place
him in a suitable centre for treatment.
In either case the applicant's detention was not lawful under
sub-paragraphs (a) and (e) of Article 5 para. 1 (art. 5-1-a,
art. 5-1-e).
29. The Commission agreed. It expressed the opinion that the
applicant's deprivation of liberty did not comply with the measures
ordered against him and, referring to the case of Bouamar v. Belgium
(judgment of 29 February 1988, Series A no. 129), that it was incumbent
on the State to provide the infrastructure to meet the requirements of
Law no. 1729/1987. While in prison, Mr Bizzotto had been unable to
consult a doctor or any qualified nursing staff; the only treatment he
appeared to have received had been the occasional dose of
sleeping tablets, which could not be considered appropriate treatment
for drug addiction.
30. The Government disagreed with those views.
They submitted, firstly, that the requirements of
sub-paragraph (a) of Article 5 para. 1 (art. 5-1-a) had been met in the
instant case. The applicant had been detained in Patras Prison by
virtue of a judicial decision whereby he had been sentenced to a term
of eight years in prison, reduced to six years on appeal. They
acknowledged that the institutions mentioned in section 14 of
Law no. 1729/1987 did not yet exist in Greece, but maintained that the
Convention did not oblige Contracting States to provide special
infrastructure and methods to deal with drug-related problems. States
were free to adopt whatever measures they considered necessary and
choose the most appropriate time for implementing them. Even supposing
that treatment centres able to treat Mr Bizzotto had existed at the
material time, section 23 gave the courts a discretion to decide
whether a drug addict who, like the applicant, had been given a
custodial sentence should remain in detention or be released on
licence.
The Government alleged, secondly, that sub-paragraph (e)
(art. 5-1-e) applied only in circumstances different from those of the
instant case, that is to say where a person was detained in a treatment
centre without that being objectively required by his condition. In
his applications for release on licence, however, Mr Bizzotto had
claimed to be totally cured.
31. The Court reiterates that in order to comply with
Article 5 para. 1 (art. 5-1), the detention in issue must take place
"in accordance with a procedure prescribed by law" and be "lawful".
The Convention here refers essentially to national law and lays down
the obligation to conform to the substantive and procedural rules of
national law, but it requires in addition that any deprivation of
liberty should be in keeping with the aim of Article 5 (art. 5), namely
to protect the individual from arbitrariness (see, among many other
authorities, the following judgments: Winterwerp v. the Netherlands,
24 October 1979, Series A no. 33, pp. 17-18 and 19-20, paras. 39 and
45; Bozano v. France, 18 December 1986, Series A no. 111, p. 23,
para. 54; and Bouamar cited above, p. 20, para. 47).
Furthermore, there must be some relationship between the ground
of permitted deprivation of liberty relied on and the place and
conditions of detention (see the Ashingdane v. the United Kingdom
judgment of 28 May 1985, Series A no. 93, p. 21, para. 44).
32. The Court finds that the applicant's "detention" was the
consequence of his conviction as a drug trafficker. The Athens Court
of Appeal sitting as a court of first instance described him as
"particularly dangerous" and sentenced him under Law no. 1729/1987 to
eight years' imprisonment for having "purchased", "transported",
"imported" and "been in possession of" 3.5kg of Indian hemp
(see paragraph 7 above). The Athens Court of Appeal sitting with
five judges - even though it reduced the sentence to six years - upheld
the judgment delivered at first instance (see paragraph 8 above).
Contrary to what obtained in the case of X v. the United Kingdom
(judgment of 5 November 1981, Series A no. 46), a sentence was in fact
passed in the instant case for the purposes of punishment. The same
court's finding that the applicant was a drug addict and the decision
to have him placed - as required by section 14 of Law no. 1729/1987 -
in a prison with medical facilities do not in any way affect the main
ground for his "detention". Accordingly, only sub-paragraph (a) of
Article 5 para. 1 (art. 5-1-a) applies in the present case.
33. The Court does, of course, recognise the humanitarian nature
of the provisions of Law no. 1729/1987 that are curative in purpose and
which the applicant alleged had been disregarded by the authorities,
namely section 14 - which provides for the setting up of prisons with
medical facilities - and section 23, which in certain circumstances
allows offenders who are also drug addicts to be released early on
licence (see paragraph 15 above). However, it notes that at the
material time, that is to say five years after that Law was passed,
these provisions remained inoperative, as the Government acknowledged.
34. Nevertheless, in the context of the instant case, the
aforementioned sections lay down merely the arrangements for
implementing sentences. Although such arrangements may sometimes be
caught by the Convention - in particular where they are incompatible
with Article 3 (art. 3) - they cannot, in principle, have any bearing
on the "lawfulness" of a deprivation of liberty.
35. Consequently, the Court finds that the applicant's detention
in the ordinary prison in Patras did not infringe Article 5 para. 1
(art. 5-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objections;
2. Holds that there has been no violation of Article 5 para. 1 of
the Convention (art. 5-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 15 November 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar