Excessive formality on behalf of the Greek courts in the procedures for compensation of a convicted person who was imprisoned and then acquitted. Condemnation of Greece
JUDGMENT
Makrylakis v. Greece 17.11.2022 (no. 34812/15)
SUMMARY
Claims for compensation for two years imprisonment following an acquittal issued by the Court of Appeal. Application process not governed by national law in a consistent and predictable manner. Excessively formal application of procedural requirements by national courts. Disproportionate burden on the applicant which affects the essence of the right of access to justice. Unreasonable duration of the first-instance criminal procedure
The applicant was arrested for cultivating cannabis. He was sentenced in the first instance to 18 years in prison and a fine of 300,000 euros. He remained in prison for two years. Following an appeal, he was acquitted in the second degree and the decision became irrevocable after an appeal by the Prosecutor, which was rejected. The entire procedure in the Court of First Instance lasted 5 years and 9 months. In the meantime, he brought two Claims for compensation due to wrongful imprisonment which were dismissed as inadmissible. The first because it was brought before the decision became irrevocable and the second because it was brought out of time. He appealed to the ECtHR for violation of the fair trial.
The ECtHR considered that it was necessary to examine whether the application of the procedural requirements was proportional to the intended purpose or whether it undermined the very essence of the right of access to a court, as guaranteed by Article 6 § 1 of the ECHR.
The Court noted that the wording of the provisions of the Code of Criminal Procedure caused uncertainty and ambiguity as to the conditions of admissibility for the submission of the Claim for compensation. It was not clear in domestic law whether it should be exercised when the judgment became final or after the final acquittal. It found that the case law of the domestic courts had established this untenable situation and there was no foreseeable practice. According to the ECtHR, the examination of the case as a whole showed that the provisions of the CPC regarding the procedural conditions for submitting a Claim for Compensation were applied by the national courts with excessive formality.
It then found that the inadmissibility of the Compensation Claims was not due to an error for which the applicant was objectively responsible but to a series of omissions and uncertainties created by the national courts.
Finally, it found that the procedural rules ceased to serve the purposes of legal certainty and the proper administration of justice and constituted an obstacle that prevents the party from determining its case on the merits.
The ECtHR ruled that there was a violation of access to a court, which is a more special manifestation of a fair trial (Article 6 par. 1 of the ECHR).
Finally, the ECtHR found that the total duration of the trial in the first degree lasted 5 years and 9 months and considered that the reasonable duration of the trial was violated (Article 6 par.1).
On the contrary, it ruled that the applicant’s detention was not illegal and rejected as inadmissible his complaint of deprivation of his personal freedom (Article 5 par. 5 ECHR).
The ECtHR awarded an amount of 16,500 euros for moral damage and costs.
PROVISIONS
Article 5 par. 5
Article 6 par. 1
PRINCIPAL FACTS
On 4 August 2004 a cannabis plantation was found in the municipality of Nikiforou Foka in the prefecture of Rethymno. For a period of time, the applicant had been renting the plot of land where the plantation was found. A preliminary investigation was conducted by the police during which the applicant was examined as a witness. On 22 December 2004 a criminal file against persons unknown was submitted to the prosecutor. On 7 January 2005 the prosecutor of the Rethymno Criminal Court of First Instance instituted criminal proceedings and requested the investigating judge to conduct the main investigation into the offence of cultivating cannabis plants.
On 20 January 2006, during the main investigation, the applicant was examined as an accused before the investigating judge and a prohibition on his leaving the country was imposed.
When the main investigation was completed, the prosecutor at the Rethymno Criminal Court of First Instance submitted the criminal case file to the prosecutor at the Crete Criminal Court of Appeal (the Court of Appeal”) on 7 March 2006. On 17 March 2006, following a proposal by the prosecutor, the President of the Crete Criminal Court, by decision no. 85, committed the applicant for trial before the three-member Crete Criminal Court of Appeal acting as a first-instance court. By summons no. 1464 issued on 22 June 2006, the applicant was ordered to appear in court as an accused in respect of the offence concerning the cannabis plantation.
A hearing was scheduled for 15 December 2006. The applicant requested the adjournment of the hearing because of the inability of his representative to attend. The hearing was rescheduled for 21 September 2007.
The court suspended or adjourned the hearing on the dates set out below.
(i) During the hearing held on 21 September 2007 the court suspended the hearing. The case resumed on 22 October 2007, when it was further adjourned until 13 June 2008 on account of the court secretary’s schedule.
(ii) During the hearing held on 13 June 2008 the court adjourned the case until 13 February 2009 because the secretary was on strike.
(iii) During the hearing held on 13 February 2009 the court suspended the hearing. The case resumed on 17 February 2009, when it was further adjourned until 4 December 2009 for the collection of important evidence and in order to examine a witness.
(iv) During the hearing held on 4 December 2009 the court adjourned the case until 14 May 2010 on account of the secretary’s schedule.
10. During the hearing held on 14 May 2010 the case was adjourned until 21 January 2011 at the applicant’s request because his representative was on strike. During the hearing held on 21 January 2011 the case was further adjourned until 21 October 2011 following a request by the applicant’s representative, on account of a general national strike by lawyers.
During the hearing held on 21 October 2011 the court suspended the hearing. The case resumed on 1 November 2011. On that date, by judgment no. 867/2011 of the three-member Crete Court of Appeal acting as a first‑instance court, the applicant was convicted of cultivation of cannabis and sentenced to eighteen years’ imprisonment and a pecuniary penalty of 300,000 euros (EUR).
On 1 November 2011 the applicant lodged an appeal. All his four requests for the suspension of the sentence were rejected by decisions of the five-member Crete Court of Appeal and he was transferred to prison.
On 26 September 2013 the appeal hearing was suspended by the court. The hearing resumed on 15 October 2013, and resulted in the applicant being acquitted by judgment no. 184/2013 of the five-member Crete Court of Appeal. The applicant, who had been imprisoned since 1 November 2011, was released on 16 October 2013, after approximately two years’ imprisonment.
On 11 February 2014 the prosecutor at the Crete Court of Appeal lodged an appeal on points of law. Following a request by the applicant’s representative on 8 April 2014, the case was adjourned until November 2014. By judgment no. 23/2015 of 13 January 2015, the Court of Cassation declared the appeal on points of law inadmissible.
- PROCEEDINGS CONCERNING COMPENSATION FOLLOWING THE APPLICANT’S ACQUITTAL
- The applicant’s first application for compensation
On 23 October 2013 the applicant lodged an application with the Crete Court of Appeal, relying on Articles 533, 536 and 537 of the Code of Criminal Procedure, seeking compensation in respect of his conviction at first instance and detention, in view of his subsequent acquittal by judgment no. 184/2013 of that court.
On 28 November 2013 the five-member Crete Court of Appeal held a hearing with the applicant present, and by decision no. 222/2013 adjourned the case until judgment no. 184/2013 became final.
- The applicant’s second application for compensation
In the meantime, the prosecutor lodged the above-mentioned appeal on points of law and the Court of Cassation dismissed it on 13 January 2015 . No hearing was scheduled subsequently in respect of the first application for compensation. On 11 February 2015 the applicant lodged a second application with the five-member Crete Court of Appeal.
- Dismissal of the applicant’s applications
The five-member Crete Court of Appeal first ruled on the second application for compensation, lodged in 2015; on 23 April 2015, by judgment no. 59/2015, it declared the application inadmissible as having been lodged out of time. In particular, it held that Article 533 § 1 and Article 536 § 1, in conjunction with Article 537 §§ 1-2 of the Code of Criminal Procedure (see paragraph 24 below), provided that a person who was convicted and imprisoned but subsequently acquitted had the possibility of requesting compensation either (i) immediately after the delivery of the acquittal judgment or (ii) at a later stage. According to the court, taking into account the will of the legislature, the acquittal judgment had to be final in order to prevent further proceedings for recovery of the compensation in the event that the acquittal was overturned. Therefore, for an application for compensation to be admissible, in the first circumstance (i), it could only be lodged if the judgment had also become final; in the second circumstance (ii), it had to be lodged within ten days after the acquittal judgment had become final, except in cases of force majeure.
In view of the fact that in the present case the acquittal judgment had become final on 13 January 2015 (see paragraph 17 above), the court held that the time-limit for lodging an application for compensation had expired on 23 January 2015, and that the applicant had lodged his application out of time on 11 February 2015 as he had not additionally claimed that force majeure or any other hindrance had prevented him from lodging the application.
On 10 July 2015 the applicant lodged an application with the Court.
Dismissal of the first application
The five-member Crete Court of Appeal subsequently ruled on the first application for compensation, which had been lodged in 2013. On 15 October 2015, in judgment no. 123/2015, the court adopted the same interpretation regarding the procedural requirements for lodging compensation applications. It declared the applicant’s first application inadmissible as being premature, as the acquittal judgment had not yet become final when he lodged that application.
On 7 July and 6 November 2015 the applicant lodged two appeals on points of law against the two judgments dismissing his applications for compensation. On 25 October and 2 November 2016 respectively both appeals were declared inadmissible because the impugned judgments had not assessed the guilt of the applicant or determined a criminal charge with final effect; they were thus not subject to an appeal on points of law.
THE DECISION OF THE COURT…
The Court sees no reason to question that the procedural requirements to be complied with in lodging an application for compensation, as interpreted by the domestic courts, were aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty. The question to be examined in the present case, however, is whether the application of the procedural requirements and the particular conduct of the domestic courts, which led to the finding that the applicant’s applications were inadmissible, were proportionate to the aim sought to be achieved or if they undermined the very essence of the applicant’s right of access to a court, as guaranteed by Article 6 § 1.
(i) Whether the restriction was foreseeable
The Court notes in respect of the first criterion that the wording of the applicable provisions of the Code of Criminal Procedure gave rise to uncertainty and ambiguity as to the admissibility requirements for lodging an application for compensation. Article 533 § 1 defines the persons who are entitled to request compensation, including those convicted by a judgment which was subsequently reversed by a final judgment. Article 536 § 1 provides that the court which delivered the judgment in the case is competent to rule on compensation in a separate decision delivered at the same time as the verdict. Article 537 further provides that an application for compensation may be lodged at a later stage, within ten days after the delivery of the judgment in open court. It is not clear from the provisions that an application can be lodged only after an acquittal becomes final and within ten days after it becomes final.
The Crete Criminal Court of Appeal, in judgment no. 59/2015, had to have regard to the will of the legislature, according to which the right to compensation should not be infringed and the acquittal judgment should be rendered final so that there could be no subsequent recovery of the compensation, and to interpret the relevant provisions of the Code of Criminal Procedure accordingly. It thus held that an application for compensation was admissible only if it was lodged, in accordance with Article 536 § 1, immediately after the delivery of the acquittal judgment and only on condition that the judgment was final. As regards an application lodged at a later stage, in accordance with Article 537 § 1, the ten-day time-limit started from the date on which the acquittal judgment became final. The Government acknowledged that, in accordance with the wording of the provisions, it seemed that in almost all cases an application for compensation would be declared inadmissible, and maintained that the courts’ interpretation had remedied that untenable situation. The Court cannot conclude on the basis of the single judgment adduced by the Government which followed the same interpretation of the applicable provisions in a similar case in 2004 (see paragraph 29 above) that there was a coherent domestic judicial practice and a consistent application of that practice.
As regards the accessibility of the relevant practice to the applicant who was not represented by a lawyer, the Court cannot accept the Government’s argument that the average diligent lawyer would have been aware of the domestic courts’ case-law and would have advised the applicant properly. Even if the applicant had obtained legal advice, it would be difficult if not impossible for him to ascertain, on the basis of the relevant domestic provisions and practice, that he did not comply with the procedural requirements, also in view of the issuance of decision no. 222/2013 of the Crete Court of Appeal which adjourned the case until the acquittal became final. The foregoing considerations are sufficient for the Court to conclude that the procedure to be followed for in respect of an application for compensation was not regulated in a coherent and foreseeable manner.
(ii) Whether the applicant was made to bear the adverse consequences of the errors made during the proceedings
Αs regards the second criterion, the Court observes that the Crete Court of Appeal, by decision no. 222/2013, led the applicant to believe that his first application for compensation complied with the procedural requirements laid down in the Code of Criminal Procedure and did not raise any issues of inadmissibility. On the contrary, since the case was adjourned pending the outcome of a possible appeal on points of law, the applicant was led to believe that his application would then be assessed on the merits. Furthermore, the Crete Court of Appeal declared the applicant’s first application for compensation dating back to 2013 inadmissible after approximately two years, at a time when it was no longer possible for the applicant to comply with the time-limit requirement.
The Government did not adduce any argument as to why it had been necessary for the domestic courts to adjourn the examination of the applicant’s first application for compensation, taking into consideration that the application was ultimately dismissed as being premature. Those mistakes are exclusively and objectively imputable to the court and not to the applicant. The Court cannot exclude that this approach prevented the applicant from determining in time which steps to take after such a dismissal in order to have his application for compensation examined on the merits. Had the court replied in due time that his application had been lodged prematurely, this could have prevented the situation complained of. It would have been clear to the applicant how to comply with the admissibility requirements in line with the court’s interpretation.
It is true that the applicant’s second application was declared inadmissible as having been lodged out of time and the initial one as having been premature. However, the applicant had had a reasonable expectation that a ruling on the merits of his application was pending. Additionally, the court, when ruling on the second application, did not take into account his first application, which at that time still remained undecided. As regards the first application, the applicant cannot be considered to have failed to use the necessary diligence in a manner consistent with domestic law, which was in any event unclear with regard to the procedural requirements.
The Court cannot accept the Government’s argument that the applicant demonstrated a lack of diligence. The applicant maintained in that connection that he had been discouraged by the court from lodging his application and that he had not been given a clear answer about the date of the hearing, assertions which the Government did not contest. Moreover, the applicant, despite not having obtained any ruling on his first application after his acquittal had become final, continued to pursue his case and lodged a second application. He did this despite not being legally represented in the compensation proceedings concerning either of his requests, a circumstance which may have made it more difficult for him to orient himself in the proceedings.
The inadmissibility of the applications was thus not the result of a mistake for which the applicant was objectively responsible; rather, it was owing to a series of omissions and uncertainties created by the domestic courts that the applicant’s case eventually remained undetermined. In those circumstances, the Court finds that the applicant was made to bear the adverse consequences of errors which were not imputable to him.
(iii) Whether there was excessive formalism restricting the applicant’s access to a court
With regard to the manner in which the procedural requirements were applied in the applicant’s case, the Court reiterates that after adjourning examination of the applicant’s first application until the acquittal became final, the Crete Court of Appeal declared his second application for compensation inadmissible. The court subsequently re-examined his first application, declaring it inadmissible as being premature. It did so on the basis of an interpretation of the specific provisions which had created uncertainty and ambiguity.
In the Court’s view, the examination of the case, taken as a whole and with regard to the particular circumstances, shows that the manner in which the provisions of the Code of Criminal Procedure concerning the procedural requirements for lodging an application for compensation were applied amounted to excessive formalism. It cannot be considered reasonable to expect the applicant to have lodged his compensation claim within the required time-limit, in view of the lack of foreseeability of the relevant procedure , allied to the decision to adjourn the proceedings and the subsequent conduct of the court. The procedural rules thus ceased to serve the aims of legal certainty and the proper administration of justice and formed a barrier preventing the litigant from having his case determined on the merits (see, mutatis mutandis, Eşim v. Turkey, no. 59601/09, §§ 25-26, 17 September 2013).
Furthermore, given the nature of the Crete Court of Appeal’s role in ruling on compensation applications in respect of detention following a person’s acquittal, the Court cannot accept that the procedure before that court should be so formalistic. Indeed, the Court notes that the Crete Court of Appeal did not succeed other national courts in examining the applicant’s request but was called upon to rule at first and last instance. It was therefore the first and last set of proceedings in which the applicant’s case could be examined by a court (see, mutatis mutandis, Sotiris and Nikos Koutras ATTEE v. Greece, no. 39442/98, § 22, ECHR 2000‑XII).
In the light of the above criteria and the circumstances of the case, the manner in which the applicant’s applications for compensation were declared inadmissible prevented him from obtaining an examination of his compensation claim and amounted to a disproportionate burden impairing the very essence of his right of access to a court as guaranteed under Article 6 § 1.
There has therefore been a violation of Article 6 § 1 of the Convention.
- ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE CRIMINAL PROCEEDINGS
The reasonableness of the length of proceedings must be assessed, in accordance with well-established case-law, in the light of the circumstances of the case and with reference to the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, for example, Lupeni Greek Catholic Parish and Others, cited above, § 143, and Michelioudakis v. Greece, no. 54447/10, §§ 42-43, 3 April 2012).
The Court reiterates that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he or she would be prosecuted, or the date when preliminary investigations were opened. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see, among other authorities, Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017).
In the present case, the period to be taken into consideration began on 20 January 2006, when the applicant was examined as an accused before the investigating judge , and ended on 1 November 2011, when the decision of the court of first instance was delivered. It thus lasted for more than five years and nine months at one level of jurisdiction. The Court acknowledges the fact that the case was of some complexity because of the number of witnesses and suspects. However, it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings.
The Court agrees with the Government that the adjournments requested by the applicant on 15 December 2006 (a delay of approximately nine months), 21 January 2011 (a delay of approximately eight months) and 21 October 2011 (a delay of nine months, due to a general strike by lawyers) (see Papageorgiou v. Greece, no. 24628/94, 22 October 1997, § 47 in fine) cannot be attributed to the authorities.
With regard to the conduct of the judicial authorities, the Court notes that the case was adjourned four times by the court: on 22 October 2007 until 13 June 2008 (approximately eight months) on account of the secretary’s schedule, and again immediately on 13 June 2008 until 13 February 2009 (a further eight months) because the secretary was on strike. After four days, on 17 February 2007, it was adjourned until 4 December 2009 (approximately ten months) for the purpose of the collection of evidence. It was adjourned again immediately on 4 December 2009 until 14 May 2010 (approximately five months) on account of the secretary’s schedule.
Even after the deduction from the total length of proceedings (five years and nine months) of the total delay of two years and two months that cannot be attributed to the authorities the length of the proceedings cannot be considered reasonable. Additionally, there is no indication that the court explored any possible ways of making the delays due to adjournments shorter by examining whether the circumstances and the reasons for the adjournments would have allowed for an earlier date (see, for the purpose of illustration, Gančo v. Lithuania (Committee), no. 42168/19, § 34, 13 July 2021). Lastly, special consideration must be given in the instant case to the nature of the allegations which were pending against the applicant, the criminal nature of the proceedings and the diligence required in such cases (see, mutatis mutandis, Aresti Charalambous v. Cyprus, no. 43151/04, §§ 45‑47, 19 July 2007).
There has accordingly been a violation of Article 6 § 1 of the Convention as regards the length of the criminal proceedings at first instance against the applicant.
- ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
Lastly, the applicant complained under Article 5 § 5 of the Convention that he received no compensation for his detention even though he had been acquitted.
The Court reiterates that, for Article 5 § 5 to apply, the deprivation of liberty must have been effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see, for example Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions.
The Court notes that it did not transpire from the parties’ observations that the applicant’s detention was unlawful or otherwise in contravention of the first four paragraphs of Article 5. The applicant was convicted at first instance, and was acquitted by the Court of Appeal on the basis that he had not committed the offence. In these circumstances, the guarantees of Article 5 § 5 of the Convention do not apply in the present case (see Kabili v. Greece, no. 28606/05, § 23, 31 July 2008). This complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
