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NERATTINI v. GREECE - 43529/07 [2008] ECHR 1740 (18 December 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1740.html
Cite as:
[2008] ECHR 1740
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FIRST
SECTION
CASE OF NERATTINI v. GREECE
(Application
no. 43529/07)
JUDGMENT
STRASBOURG
18 December 2008
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Nerattini v.
Greece,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Christos Rozakis,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 43529/07) against the Hellenic
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Italian national, Mr Gianni Nerattini (“the
applicant”), on 7 October 2007.
The applicant was represented by Mr D. Petrouskas,
a lawyer practising in Samos, and Mr A. Chondrogiannis, a lawyer
practising in Piraeus. The Greek Government (“the Government”)
were represented by their Agent's delegates, Mr K. Georgiadis,
Adviser at the State Legal Council, and Mr I. Bakopoulos,
Legal Assistant at the State Legal Council. The Italian Government
did not make use of their right to intervene under Article 36 §
1 of the Convention.
On
17 December 2007 the applicant requested the Court to indicate to the
Greek Government his conditional release under Rule 39 of the Rules
of Court. Following the Government's observations concerning the
applicant's state of health while in detention and the medical care
provided to him, the President of the Section decided, on 13 February
2008, not to apply Rule 39.
On
7 March 2008, the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3) and to give priority to
the case under Rule 41 of the Rules of Court in view of the
applicant's advanced age and poor state of health.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1938 and lives in Samos.
A. Outline of events
1. Criminal proceedings initially instituted against
the applicant
On
17 August 2007 the applicant was arrested in flagrante delicto
for receiving a package containing 71 grams of cannabis and remanded
in custody. Following his arrest, the applicant's house was searched.
The investigating authorities found and seized a large number of
Egyptian and Greek antiquities, including small statues, ancient
coins, vessels and fossils.
On
18 August 2007 the applicant was brought before the Public Prosecutor
of Samos who charged him with having received a package containing
drugs. Concerning the antiquities found in the applicant's house, the
Prosecutor decided not to press charges unless new evidence was
adduced.
On 20 August the investigating judge at the Samos
Criminal Court, after questioning the applicant, remanded him in
custody with effect from 17 August, the date of his arrest, on
the grounds that there were serious prima facie indications
that the defendant had committed the drug-related offence and that it
was necessary to prevent him from absconding and to make sure that he
would not commit further offences.
2. Habeas
corpus proceedings before the Indictment Division of the Samos
Criminal Court
On
24 August 2007 the applicant applied for release on bail.
On
10 September 2007 the Indictment Division of the Samos Criminal Court
rejected the applicant's request (decision no. 49/2007). It held as
follows:
“... [the way that the packet was carefully
prepared] reveals a dexterous and studied action, established by the
choice of special means for the commission of the crime of drug
trafficking, as well as a collective action. Furthermore, during the
lawful search of the accused's house ... a significant number of
antiquities were found, including in particular, 41 coins from
different periods, a small statue of Apollo, a small bronze statue of
Bacchus, an ancient vessel, a fossil in lava from the volcano of
Santorin, part of a fresco and numerous Egyptian antiquities, the
possession of which demonstrates the perpetrator's propensity to
commit further offences relating to antiquities. In view of the
above, there is very serious evidence of the applicant's guilt and
... his request should be rejected since it is reasonably considered
that even the replacement of his pre-trial detention by preventive
measures would not be sufficient to ensure his appearance in court
and the execution of any judgment the court may deliver.”
3. Further developments
11. On
18 February 2008, the Public Prosecutor submitted to
the Indictment Division of the Samos Criminal Court his proposal to
prolong the applicant's detention in compliance with Article 287 of
the Code of Criminal Procedure (see paragraph 17 below), since the
applicant
had been in detention for six months.
12. On
7 March 2008 the Indictment Division of
the Samos Criminal Court replaced the applicant's pre-trial detention
by preventive measures (decision no. 5/2008). In particular, it held
that:
“...
the prolongation of the applicant's pre-trial detention is not
absolutely necessary since he has a
known residence in Samos, and has family and property in Greece, he
has not made preparations with a view to absconding, he has never
been a fugitive in the past and it is improbable, on the basis of his
criminal record and his social and professional status, that he will
commit further crimes if he is released. In the light of the above
and in view of the applicant's old age and serious health problems
... the Indictment Division considers that the prolongation of the
detention imposes on the applicant a disproportionate burden and that
his appearance in court and the execution of any judgment the court
may deliver can be ensured by the above preventive measures: (a)
prohibition from leaving the country and (b) an obligation to report
to his local police station twice a month. ...”
13. Subsequently,
the Public Prosecutor laid supplementary charges against the
applicant for misappropriation of antiquities. On
28 March 2008 the investigating judge questioned the applicant in
that connection.
It
appears from the case-file that the criminal proceedings against the
applicant are still pending before the investigating authorities.
B. The
applicant's medical condition while in detention and the medical care
provided to him
The
applicant suffers from various health problems, including chronic
duodenal ulcer, persistent urinary problems, inguinal hernia (when
part of the intestine bulges through a weak area in muscles in the
groin, the area between the abdomen and thigh) and degenerative spine
disorders. He often complains of hemoptysis (coughing up blood),
intense epigastric pain and melena.
The
applicant was frequently hospitalised in the Prison Hospital in order
to undergo medical examinations. On several occasions he was granted
leave to be consulted by external doctors and undergo special
examinations in Public Hospitals, including gastroscopy,
echocardiography and chest X-rays. According to the medical
certificates submitted by the applicant and the Government, the
results of a number of medical examinations (kidneys, bladder and
prostate ultrasound, chest computed tomography, bronchoscopy and
heart triplex ultrasound) were imminent. The applicant was prescribed
medication for his urinary and gastro-intestinal problems. Concerning
the inguinal hernia, surgical treatment was advised.
II. RELEVANT DOMESTIC LAW
Α. The Constitution
Article
6 of the Greek Constitution reads as follows:
“1. No person shall be arrested or imprisoned
without a reasoned judicial warrant which must be served at the time
he is arrested or remanded in custody, except when caught in the act
of committing a crime.
...
4. The maximum duration of detention pending trial shall
be specified by law; such detention may not exceed a period of one
year in the case of felonies or six months in the case of
misdemeanours. In entirely exceptional cases, the maximum durations
may be extended by six or three months respectively, by decision of
the competent judicial council.”
B. The Code of Criminal Procedure
The
relevant provisions of the Code of Criminal Procedure read as
follows:
Article 282 § 3
“1. During the preliminary procedure, if there are
serious indications of guilt, preventive measures may be imposed on a
person accused of a felony or an offence punishable with a sentence
of imprisonment of at least three months, and provided that these
measures are considered to be strictly necessary ....
...
3. Detention on remand may be imposed instead of
preventive measures, provided that the conditions of paragraph (1)
are fulfilled, only if the accused is charged with a crime and does
not have a known residence in the country or has made preparations
with a view to absconding or has been a fugitive in the past ... or
it is reasonably considered that if he is released, it is most
probable, in the light of his previous conduct or the special
circumstances of the incriminated act, that he will commit further
offences. The gravity of the charge cannot by itself serve to justify
the detention on remand.”
Article 287
“1. Where detention on remand has lasted six
months in the case of felonies, or three months in the case of
misdemeanours, the Indictment Division shall give a final, reasoned
decision on the question whether to prolong detention or release the
accused. ...
2. In all cases, and until adoption of the final
decision, detention on remand in respect of a single offence shall
not exceed one year for felonies or six months for misdemeanours. In
exceptional circumstances these limits may be extended by six months
or three months respectively by a reasoned decision, against which no
appeal shall lie, of
(a) the Indictment Division of the Court of Appeal
...
(b) the Indictment Division of the Court of First
Instance ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention that the
reasons given by the Indictment Division of the Samos Criminal Court
presented him as the perpetrator of a crime with which he had not
been charged and for which he was not standing trial. The Court will
examine this complaint under Article 6 § 2 to the Convention,
which reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
The Government claimed that decision no. 49/2007 did
not contain any statement in breach of the applicant's right to be
presumed innocent. On the contrary, the Indictment Division of the
Samos Criminal Court had had to provide sufficient reasons in order
to substantiate the existence of a risk of new offences being
committed in the event that the applicant was to be set free. In any
event, in the Government's view, the presumption of the applicant's
innocence was not prejudiced since criminal charges were subsequently
brought against him for misappropriation of antiquities.
The
applicant submitted that the fact that criminal charges were brought
against him six months after the Indictment Division of the Samos
Criminal Court had already presented him as guilty for
misappropriation of antiquities could not alter the conclusion that
his right to be presumed innocent had been breached.
2. The Court's assessment
The
Court reiterates that the Convention must be interpreted in such a
way as to guarantee rights which are practical and effective as
opposed to being theoretical and illusory. That also applies to the
right enshrined in Article 6 § 2 (Allenet de Ribemont v.
France, 10 February 1995, § 35, Series A no. 308).
According to the Court's case-law, the presumption of innocence will
be violated if, without the accused having previously been proved
guilty according to law and, notably, without his having had the
opportunity of exercising his rights of defence, a judicial decision
concerning him reflects an opinion that he is guilty. This may be so
even in the absence of any formal finding; it suffices that there is
some reasoning suggesting that the court regards the accused as
guilty (Minelli v. Switzerland, 25 March 1983, § 37,
Series A no. 62).
In
the present case, the Court notes that the Indictment Division of the
Samos Criminal Court stated that the fact that during the search of
the applicant's house a significant number of antiquities was found,
“demonstrates the perpetrator's propensity to commit further
offences relating to antiquities”. In the Court's view, it
is clear that, according to this statement, the applicant had already
committed several thefts of antiquities and it was probable that he
would repeat such offences in the future. However the Court points
out that, until that time, the applicant had not been formally
accused of or tried for such acts. In fact, when he was brought
before the Public Prosecutor, on 18 August 2007, the applicant was
only charged with having received a packet containing cannabis and
the supplementary charges were laid against him several months later.
In
view of the above, the Court considers that decision no. 49/2007 of
the Indictment Division of the Samos Criminal Court reflected the
opinion that the applicant was guilty of misappropriation of
antiquities, a crime that he was not even formally accused of at that
time. The foregoing considerations are sufficient to enable the Court
to conclude that the applicant's right to the presumption of
innocence has been breached.
There
has accordingly been a violation of Article 6 § 2 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his pre-trial detention was unnecessary and
was not based on “relevant and sufficient” reasons. He
relied on Article 5 § 3 of the Convention, which reads as
follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
The
Government submitted that the applicant's detention had been dictated
by reasons of public interest, namely to ensure the defendant's
unobstructed presence at the trial and the enforcement of any
sentence and to prevent the commission of new crimes. These reasons
were invoked in detail in the decision no. 49/2007 of the Indictment
Division of the Samos Criminal Court. In the Government's view, these
reasons met the standards of relevance and sufficiency required by
Article 5 § 3 of the Convention.
The
applicant argued that his pre-trial detention was unnecessary and
abusive and that the authorities had failed to give valid reasons for
it.
2. The Court's assessment
The Court reiterates that under the second limb of
Article 5 § 3, a person charged with an offence must always be
released pending trial unless the State can show that there are
“relevant and sufficient” reasons to justify his
continuing detention (Yağcı and Sargın v. Turkey,
8 June 1995, § 52, Series A no. 319-A). Moreover, the domestic
courts “must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set
them out in their decisions on the applications for release”
(Letellier v. France, 26 June 1991, § 35, Series A
no. 207).
Furthermore,
while Article 5 § 3 cannot be read as obliging the national
authorities to release a detainee on account of his state of health,
the authorities when deciding whether a person should be released or
detained are obliged to consider alternative measures of ensuring his
appearance at trial (see Jabloński v. Poland, no.
33492/96, §§ 82-83, 21 December 2000).
Turning
to the facts of the present case, the applicant's detention on remand
was ordered on 20 August 2007 by the investigating judge at the Samos
Criminal Court and subsequently upheld by decision of the Indictment
Division of the Samos Criminal Court of 10 September 2007. It ended
on 7 March 2008 when the Indictment Division of the Samos Criminal
Court replaced it by preventive measures. Consequently, in order to
establish whether the applicant's detention was reasonable, within
the meaning of Article 5 § 3 of the Convention, the reasons
given in this decision should be examined (see Jablonski,
cited above, § 79).
The
Court observes that the Indictment Division of the Samos Criminal
Court justified the imposition of detention by noting that (a) the
way the cannabis was packed revealed a dexterous and studied action;
(b) the existence of antiquities in the applicant's house proved the
perpetrator's propensity to commit further offences relating to
antiquities; (c) there was serious evidence of the applicant's guilt;
and (d) there was a risk of his absconding.
In
the Court's view, the first and second grounds are, as such,
irrelevant for establishing the reasonableness of detention for
having received a packet containing cannabis. As the Court has
previously held, the second ground is also incompatible with the
presumption of innocence, which the domestic courts must respect when
justifying detention under Article 5 § 3 of the Convention (see
Lavents v. Latvia, no. 58442/00, § 70, 28 November 2002),
in so far as the applicant was not, at that time, formally accused of
or tried for offences relating to antiquities (see paragraphs 24-25
above).
With
regard to the third ground, namely the existence of serious evidence
of the applicant's guilt, the Court reiterates that the persistence
of a reasonable suspicion that the person arrested has committed an
offence is a condition sine qua non for the lawfulness of the
continued detention, but after a certain lapse of time it no longer
suffices. A court decision of that kind would need a more solid basis
to show not only that there was genuinely “a reasonable
suspicion”, but also that there were other serious elements of
public interest which, notwithstanding the presumption of innocence,
outweighed the right to liberty (see, amongst others, I.A.
v. France, 23 September 1998, § 102, Reports 1998-VII)
given that the primary purpose of the second limb of Article 5 §
3 is to require the provisional release of the accused pending trial
(see Garycki v. Poland, no. 14348/02, § 39, 6
February 2007, and McKay v. the United Kingdom [GC], no.
543/03, § 41, ECHR 2006-X).
In
the present case, the Court accepts that the suspicion against the
applicant of having committed the drug-related offence may initially
have justified his detention. Yet the Court does not accept that it
could constitute a “relevant and sufficient” ground for
his being held in custody for the entire relevant period, which
started on 17 August 2007 and ended on 7 March 2008.
As
to the risk of absconding, the Court notes that although that risk
may be a relevant element in assessing the reasonableness of the
deprivation of liberty, it cannot be established on the basis of
abstract statements, unsupported by any arguments (see Smirnova v.
Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). In
the decision in question, the risk of absconding was just mentioned
laconically, without being related to the specific circumstances of
the case.
The
Court would also emphasise that, under Article 5 § 3, the
authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of ensuring
his or her appearance at trial. This is all the more necessary where,
as in the present case, there are weighty arguments militating in
favour of the applicant's release, namely the applicant's age and
poor state of health. However the Indictment Division of Samos
Criminal Court did not explain why alternative measures would not
have secured the applicant's presence before the court nor, had the
applicant been released, why his trial would not have followed its
proper course.
Finally,
the Court cannot overlook the fact that in its latest decision no.
5/2008 releasing the applicant on bail, the Indictment Division of
Samos Criminal Court took into consideration that the applicant had
a known residence in Samos, that he had
family and property in Greece, that he had never been a fugitive and
that, on the basis of his criminal record and his social and
professional status, it was improbable that he would commit further
crimes if he was released. However, the above statements were valid
from the first day the applicant was arrested and did not concern new
elements that were brought to the authorities' attention during the
period the applicant was detained. The Court can therefore only
regret that the Indictment Division of Samos Criminal Court failed to
include the above elements in its first decision and waited another
six months before it finally ordered the applicant's conditional
release.
In
view of the above, the Court considers that the applicant's detention
on remand was not reasonable or justified.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed that he had sustained pecuniary loss on account of
his unlawful imprisonment. He estimated this loss at 668,68 euros
(EUR), the sum he had spent while he was in prison. In addition he
alleged non-pecuniary damage in respect of which he sought EUR
252,000.
The
Government submitted that there was no causal link between the
alleged violations and the pecuniary damage alleged. As far as the
applicant's non-pecuniary claims are concerned, the Government
considered that the finding of a violation should constitute
sufficient just satisfaction.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
EUR 15,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
The
applicant also claimed EUR 1,850 for the costs and expenses incurred
before the domestic courts and EUR 2,000 for those incurred before
the Court. He produced two bills of costs for a total amount of
EUR 1,850.
The Government submitted that there was no causal link
between the amount claimed in respect of the domestic proceedings and
the alleged violations. The Government further stated that the legal
fees for the proceedings before the Court were excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,850 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 2 of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousands euros), plus any tax that may be chargeable on
that amount, in respect of non-pecuniary damage, and EUR 1,850 (one
thousand eight hundred and fifty euros) for costs and expenses, plus
any tax that may be chargeable to the applicant on that amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
