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You are here: BAILII >> Databases >> European Court of Human Rights >> KAMPANIS v. GREECE - 17977/91 [1995] ECHR 22 (13 July 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/22.html Cite as: (1996) 21 EHRR 43, [1995] ECHR 22, 21 EHRR 43 |
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In the case of Kampanis 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 R. Bernhardt,
Mr A. Spielmann,
Mr N. Valticos,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr B. Repik,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 22 February and 19 June 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 19/1994/466/547. 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) 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 Greek Government ("the
Government") on 1 June 1994, within the three-month period laid down
by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 17977/91) against the
Hellenic Republic lodged with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) by a Greek national,
Mr Stamatios Kampanis, who also has Canadian nationality, on
7 March 1991.
The Government's request referred to Articles 44 and 48 (b)
(art. 44, art. 48-b) of the Convention and to Rule 32 of Rules of
Court A. The object of the request was to obtain a decision by the
Court as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 5 para. 4 (art. 5-4)
of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d), the applicant stated that he wished to take part in the
proceedings and designated the lawyer who would represent him
(Rule 30).
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. 3 (b)). On 25 June 1994, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Mr R. Macdonald, Mr A. Spielmann,
Mr G. Mifsud Bonnici, Mr J. Makarczyk, Mr B. Repik and Mr P. Kuris
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr A.B. Baka, substitute judge, replaced Mr Macdonald, who
was unable to take part in the further consideration of the case
(Rule 22 paras. 1 and 2 and Rule 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of 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 memorials
of the Government and the applicant on 8 and 12 December 1994
respectively. On 16 January 1995 the Secretary to the Commission
informed the Registrar that the Delegate would make his submissions at
the hearing.
5. In accordance with the decision of the President, who had granted
the applicant's lawyer leave to use the Greek language (Rule 27
para. 3), the hearing took place in public in the Human Rights
Building, Strasbourg, on 21 February 1995. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr V. Kondolaimos, Senior Adviser,
Legal Council of State, Delegate of the Agent;
(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicant
Mr J. Stamoulis, dikigoros (lawyer), Counsel.
The Court heard addresses by them and their replies to its
questions. The Delegate of the Agent produced a number of documents
at the hearing.
On 3, 14 and 16 March respectively, the Delegate of the
Commission, the Government and the applicant's lawyer replied in
writing to one of the questions asked by the Court at the hearing.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Kampanis is a physicist by training and has dual Greek and
Canadian nationality. He was formerly the chairman and managing
director of "Greek Armaments Industry" (Elliniki Viomikhania Oplon,
"EVO"), a publicly owned company.
A. The first set of charges against the applicant
7. On 21 November 1988, following a complaint lodged on
8 November 1988 by the Deputy Minister of Defence, the prosecutor at
the Athens Criminal Court (Isangeleas Protodikon) sought the opening
of an investigation in respect of the applicant in connection with
alleged offences of misappropriation and repeated fraud to the
detriment of EVO, making false statements and incitement to
misappropriation and fraud. In a further application of
16 December 1988 the prosecutor sought an extension of the
investigation to cover alleged offences of misappropriation by a civil
servant in the performance of his duties.
8. On 19 December 1988 the investigating judge at the Athens
Criminal Court, after questioning the applicant, charged him on several
counts of aggravated misappropriation by a civil servant in the
performance of his duties, and making false statements. On
23 December 1988, by order no. 24/1988, he remanded Mr Kampanis in
custody with effect from 21 December, the date of his arrest, on the
grounds that there was sufficient prima-facie evidence of his guilt and
that it was necessary to prevent him from absconding and to make sure
that he did not commit further offences. On 3 July 1989 the Indictment
Division of the Athens Criminal Court (symvoulio plimmeliodikon)
ordered that he was to remain in detention on remand.
9. On 18 July 1989 the applicant applied for release on bail. One
month later the investigating judge rejected this application on
account of the seriousness of the charges against the applicant, the
severity of the penalties which he risked and the danger that evidence
not yet brought to the prosecuting authorities' attention might be
concealed. He noted in that connection that the accused had held an
influential post at the head of a State undertaking and had contacts
with civil servants who, at his instigation, might suppress documentary
evidence and provide false certificates or make false statements.
Moreover, Mr Kampanis had kept his Canadian nationality and could thus
go to Canada at any time. Lastly, his academic qualifications, his
knowledge of languages and his professional experience would have made
it easy for him to settle in a foreign country. There was accordingly
a risk that the applicant might abscond.
B. The second and third sets of charges against the applicant
10. On 31 July 1989 the investigating judge at the Athens Criminal
Court charged the applicant, in connection with the same investigation,
with misappropriation and fraud relating to expenditure he had incurred
and a number of contracts he had concluded on behalf of EVO with a
Canadian company. The judge in question then made a second order
(no. 6/1989) remanding Mr Kampanis in custody.
11. On 3 October 1989, still in connection with the same
investigation, the same judge charged the applicant on a number of
counts of aggravated misappropriation to the detriment of EVO, linked
in particular to the payment of commissions during negotiations
concerning arms sale contracts.
C. Assignment of the case to a special investigating judge of the
Athens Court of Appeal and the fourth set of charges preferred
against the applicant
12. On 9 January 1990 a full court (olomelia efetiou) of the Athens
Court of Appeal decided, under Article 29 of the Code of Criminal
Procedure, to assign the investigation of the three cases known as the
"EVO cases" to a judge at the Court of Appeal in order to complete the
pre-trial procedure "as rapidly as possible".
13. On 24 May 1990 the Court of Appeal's special investigating judge
charged the applicant and a large number of his former colleagues on
a number of counts of misappropriation by a civil servant in the
performance of his duty. He also made a further order remanding the
applicant in custody (no. 1/1990), which was executed on 26 May.
14. On 5 June 1990 Mr Kampanis appealed against this order to the
Indictment Division of the Athens Court of Appeal (symvoulio efeton).
He alleged that his continued detention infringed Article 6 para. 4 of
the Constitution (see paragraph 31 below) and that the order failed to
give sufficient reasons.
In a decision (voulevma) of 28 June 1990 the Indictment Division
dismissed the appeal as out of time, since it had been lodged after
expiry of the five-day period laid down in Article 285 para. 1 of the
Code of Criminal Procedure.
D. The closure of the investigation and the applications for release
lodged prior to 30 January 1991
15. On 11 June 1990 the investigating judge informed the applicant,
in accordance with Article 308 para. 6 of the Code of Criminal
Procedure, that he had closed the investigation. On 5 September 1990
the prosecutor sent the file to the Indictment Division so that it
could decide whether to commit the applicant for trial (see
paragraph 23 below).
16. On 13 June 1990 Mr Kampanis unsuccessfully applied for release
on bail. The Indictment Division - before which he had in addition
requested leave to appear in order to be able to reply to the
prosecutor's submissions - dismissed his application on 6 July 1990 on
the ground that the investigating judge's decision was sufficiently
reasoned and well-founded in law.
17. In the meantime, on 27 June 1990, the principal public prosecutor
at the Court of Appeal had asked the Indictment Division to prolong
Mr Kampanis's detention for a further six-month period.
On 5 July 1990 the applicant sought the Indictment Division's
leave to appear before it in order to present argument in support of
his application for release. He emphasised that the legislation in
force made no provision for the appearance of the parties and in
particular of the accused or his counsel during the proceedings before
investigating judges or indictment divisions; this was a lacuna and a
flaw in the legislation, stemming from the inquisitorial nature of the
system and from the principle of confidentiality, which often ran
counter not only to the accused's defence rights but also to the
interests of justice. While acknowledging that Article 287 para. 2 of
the Code of Criminal Procedure - applicable to that stage of the
proceedings - did not contain any provision similar to that in
Article 287 para. 1 (see paragraphs 32 and 33 below), he relied on the
latter provision by analogy and on the fact that his detention had been
prolonged beyond the twelve-month limit laid down in the Constitution
(see paragraph 31 below) to support his contention that he should be
allowed to appear before the Indictment Division.
In a decision of 16 July 1990 the Indictment Division allowed the
prosecutor's application - after hearing him on 10 July in the absence
of the accused - and confirmed the prolongation of the applicant's
detention on remand. Neither the prosecutor nor the Indictment
Division dealt with the applicant's arguments concerning his
application for leave to appear.
18. On 18 and 19 July 1990 Mr Kampanis complained of the length of
his detention on remand to the prosecutor at the Piraeus Criminal Court
and the principal public prosecutor at the Court of Cassation.
19. On 18 September 1990 he again requested his release. In support
of his application he maintained that, if the correct legal
classification were given to the offences of which he was accused, the
length of detention on remand in respect of the offences referred to
in the last two detention orders (see paragraphs 10 and 13 above) would
have to be calculated from the date of his imprisonment under the first
order, of 21 December 1988 (see paragraph 8 above); the continuation
of his detention after 21 June 1990 was therefore unlawful.
In a decision (no. 2648/90) of 13 November 1990 the Indictment
Division rejected the application on the ground that the offences cited
in the second and third detention orders had each been constituted by
a separate criminal act (see paragraphs 10 and 13 above).
E. The application for release of 30 January 1991
20. On 30 January 1991 the applicant submitted a further application
for release to the Indictment Division, before which the question of
his committal for trial was then pending. He argued that his detention
was based on the successive orders of 23 December 1988, 31 July 1989
and 24 May 1990, each of which had fixed a new starting-point for
calculating the length of detention, and that as a result he had
remained in prison, without being committed for trial, for twenty-five
months and ten days, whereas the maximum period authorised under
Article 6 para. 4 of the Constitution was twelve months or, in
exceptional circumstances, eighteen months. Such a period, whose
length, he argued, was due to the slow progress of the investigation,
the splitting up of the alleged offences into separate sets of charges
and the making of successive detention orders, was in breach of the
Greek Constitution and of Article 5 para. 3 (art. 5-3) of the
Convention as interpreted by the European Commission and Court of Human
Rights. He also complained that the Indictment Division had not yet
ruled on his complaint of a violation of the Convention, although he
had already raised it several times. Lastly, he requested leave to
appear with his lawyer in order to put forward his arguments.
21. On 6 February 1991 the Indictment Division heard the prosecutor,
who expanded on the written submissions he had filed the day before.
22. On 13 February 1991 the Indictment Division dismissed
Mr Kampanis's applications (decision no. 553/91). It held that
Article 5 (art. 5) of the Convention neither specified what was a
reasonable length of time for an accused to be held in pre-trial
detention nor laid down a procedure for deciding whether to release
him. On the other hand, these matters were specifically dealt with in
Articles 282 and 287 of the Code of Criminal Procedure and Article 6
para. 4 of the Constitution.
It noted that the accused had initially been detained for
eighteen months under order no. 24/1988 of 23 December 1988 and that
at the end of this period he had been "released but only nominally",
since in the meantime two further orders had been made against him,
namely the order of 31 July 1989 (no. 6/1989), extended by virtue of
Article 287 para. 2 until 31 January 1991 (and in respect of which the
application concerned was now devoid of purpose), and the order of
24 May 1990 (no. 1/1990), which was still valid.
After examining the whole of the proceedings to date and
referring in particular to its decision of 13 November 1990 (see
paragraph 19 above), it held that Mr Kampanis's contention that some
of the separate offences he had been charged with in fact constituted
a single offence - and, in the alternative, that the separate offences
alleged against him derived from a single criminal act - went to the
merits of the charges and the legal classification of the offences in
issue. The Indictment Division's task under Article 29 para. 3 of the
Code of Criminal Procedure was to determine at first and last instance
whether the charges were lawful and whether there was a case to answer.
It would therefore give a final decision on the questions raised by the
applicant only after weighing all the evidence. It would then decide
at the same time whether to prolong the detention or order the
applicant's release (Article 315 para. 1 of the Code of Criminal
Procedure - see paragraph 38 below). The application for release of
30 January 1991, which had the same purpose and was based on the same
evidence as the application of 18 September 1990, was accordingly
premature and should be declared inadmissible.
Lastly, the Indictment Division held Mr Kampanis's application
for leave to appear in person to be ill-founded. On this point it
followed the reasoning of the prosecutor, who had argued in his
submissions of 5 February 1991 that such an appearance "[could] be
contemplated only where the Indictment Division [was] about to rule on
the merits of the case or in those cases where it [was] specifically
provided for by law (Athens Court of Appeal, judgment no. 334/1982,
Pinika Chronika, vol. 52, p. 685)" (see paragraph 39 below).
F. The applicant's committal for trial at the Criminal Court of
Appeal
23. In the meantime, on 17 September 1990, the Indictment Division,
having before it the question whether to commit Mr Kampanis for trial
(see paragraph 15 above), had heard the prosecutor, who had withdrawn
after making his submissions. In a written submission of 5 September
he had applied for the applicant's committal and prolongation of his
detention under order no. 1/1990 (see paragraph 15 above). On
18 December 1990 the applicant sought leave to appear before the
Indictment Division.
24. In a decision (no. 763/91) of 26 February 1991, which ran to 314
pages, the Indictment Division, after deliberating on 19 December 1990
and 15 February 1991, committed the applicant and fourteen of his
co-accused for trial at the Athens Court of Appeal sitting as a court
of criminal jurisdiction and composed of three judges (Trimeles efetio
kakourgimaton). It indicted the applicant, as the chairman and
managing director of a publicly owned company, on several counts of
aggravated misappropriation and fraud, these being acts which
constituted continuous offences. It also indicted him on a charge of
making false statements in his capacity as a civil servant. It further
held that the circumstances in which these crimes had been committed
showed that Mr Kampanis was particularly dangerous, and accordingly
ordered that his detention should continue.
With regard to the applications for leave to appear lodged by the
applicant and his co-accused, the Indictment Division noted that the
written submissions accompanying them were so comprehensive that oral
clarification was not necessary. In addition, the pleadings lodged on
their behalf after the prosecutor's submissions adduced no new material
and did not affect the assessment of the evidence. More particularly,
with regard to the applicant, the Indictment Division held that,
without breaching Article 309 para. 2 of the Code of Criminal Procedure
(see paragraph 37 below), it could refuse to examine his application
on the ground that it had been submitted on 18 December 1990, and
therefore after the hearing of 17 September 1990 (see paragraph 23
above).
G. The application for release of 29 March 1991
25. On 29 March 1991 Mr Kampanis again applied for release and for
leave to appear in person. He repeated his argument that the length
of his detention on remand was in breach of the Constitution and the
Code of Criminal Procedure. He submitted that the starting-point of
this period was the date on which he was first imprisoned in respect
of one of the acts constituting the continuous offence. Consequently,
the period concerned had considerably exceeded the eighteen-month limit
laid down by the Constitution and he should be released. In the
alternative, he asked to be placed under judicial supervision under
Article 291 para. 1 of the Code of Criminal Procedure (see
paragraph 34 below).
26. On 2 April 1991 the Indictment Division heard the prosecutor, who
lodged the case file and the submissions he had drawn up the previous
day.
On 16 April 1991 the Indictment Division held a hearing at which
the applicant addressed the court, in the prosecutor's presence. It
appears from the record that he repeated in substance the arguments set
out in his pleading of 15 April 1991. He was given until 23 April to
file further observations.
27. In a decision (no. 1488/91) of 9 May 1991 the Indictment Division
rejected the application. The two orders remanding the applicant in
custody, made on 23 December 1988 and 31 July 1989 by the investigating
judge of the Athens Criminal Court (see paragraphs 8 and 10 above), had
lapsed on 21 June 1990 and 31 January 1991 respectively. Mr Kampanis's
position was now governed only by the order of 24 May 1990 made by the
special investigating judge of the Athens Court of Appeal (see
paragraph 13 above). Consequently, the length of his detention had to
be calculated from that date and not from the date on which the
applicant was first imprisoned. The Indictment Division gave as the
reasons for its decision the fact that there had been a number of
separate offences each constituted by a separate criminal act, the need
for a second investigation, the applicant's refusal to co-operate and
the complexity of the case, whose elucidation had required numerous
audits in addition to the judicial investigation.
In a further decision (no. 1549/91), of 17 May 1991, the same
Indictment Division decided to prolong the applicant's detention on
remand for an additional six months.
28. On 27 August and 20 September 1991 the Court of Cassation
dismissed Mr Kampanis's appeals on points of law against the decisions
of 9 and 17 May 1991 on the ground that no such appeal lay against
those decisions (Articles 287 para. 2, 291 and 482 of the Code of
Criminal Procedure).
H. The applicant's release and trial
29. The applicant was released on 24 November 1991. In the meantime,
on 13 September 1991, the trial had begun before the Athens Criminal
Court of Appeal, sitting with three judges.
30. On 30 January 1992 (judgment no. 232/92), at the end of a trial
that had lasted four months, the court found the applicant guilty on
a number of counts of aggravated misappropriation and sentenced him to
seven years' imprisonment. It deducted from that term the period of
two years, eleven months and three days he had spent in detention on
remand and fixed the outstanding term at four years and twenty-seven
days.
On 1 July 1994 the Athens Court of Appeal, sitting with five
judges to hear an appeal lodged by Mr Kampanis against judgment
no. 232/92, held that the offences should be classified as less serious
offences and reduced the sentence to two years and six months'
imprisonment, from which it deducted his detention on remand and his
imprisonment up to that date (from 30 January 1992 to 5 May 1992).
Lastly, it held that the State was under no duty to pay the applicant
damages for the extra period during which he had been deprived of his
liberty.
II. Relevant domestic law
A. The Constitution
31. Article 6 para. 4 of the 1975 Constitution provides:
"The maximum length of detention on remand shall be laid down by
law and may not exceed one year in connection with offences
classified as serious crimes or six months in connection with
less serious offences. In very exceptional cases these maximum
limits may be extended by six or three months respectively by
order of the competent Indictment Division."
B. The Code of Criminal Procedure
1. Provisions concerning the length of detention on remand
32. At the material time, Article 287 of the Code of Criminal
Procedure, which concerns the maximum limits of detention on remand,
provided:
"1. Where, during an investigation, detention on remand has
lasted six months in the case of offences classified as serious
crimes, or three months in the case of less serious offences, the
investigating judge must within the next five days send the
principal public prosecutor at the Court of Appeal a report
setting out the reasons why the investigation has not been
completed. The latter shall transmit the case file to the public
prosecutor, who shall refer it to the Indictment Division. After
hearing the parties or their counsel, who shall be given notice
to appear at least twenty-four hours before the deliberations,
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 including the period between the end of the
investigation and the adoption of the final decision, detention
on remand in respect of a single offence shall not exceed one
year where the offence is classified as a serious crime or six
months where it is a less serious offence. In exceptional
circumstances the competent Indictment Division may make a
reasoned order or orders, against which no appeal shall lie,
extending these limits by up to six months or three months
respectively ...
Where a case is pending before the investigating judge and the
accused's detention on remand has been prolonged in accordance
with paragraph 1 of this Article, the investigating judge must
transmit the file to the public prosecutor, thirty days before
the date on which the maximum period of detention on remand
provided for in this paragraph is due to expire, together with
a report stating the reasons why it is necessary to extend
detention on remand. The public prosecutor shall forward the
file and the above-mentioned report to the Indictment Division
with his proposal. In all other cases the competent prosecutor
must submit to the Indictment Division, at least twenty-five days
before the date on which the maximum period of detention on
remand provided for in this paragraph, or an extension period
previously ordered, is due to expire, a proposal calling for the
detention order to be either extended or rescinded.
...
6. Any uncertainty or disagreement about the maximum limits for
detention on remand set out in the first and second paragraphs
of this Article shall be determined by the competent Indictment
Division, which must give the accused notice to appear
forty-eight hours beforehand. Either the accused or the
prosecutor may appeal on points of law against the decision of
the Indictment Division."
This last paragraph was inserted by Law no. 1897/90, Article 14
of which gave it retrospective effect from 24 July 1974.
Article 287 paras. 1 and 2, as amended by Law no. 2207/94 of
1994, now provide as follows:
"1. Where detention on remand has lasted six months in the case
of offences classified as serious crimes, or three months in the
case of less serious offences, the Indictment Division shall give
a final, reasoned decision on the question whether to prolong
detention or release the accused. To that end:
(a) Where the investigation is still in progress, the
investigating judge must, within the five days preceding the end
of the period mentioned above, send the principal public
prosecutor at the Court of Appeal a report setting out the
reasons why the investigation has not been completed and transmit
the file to the prosecutor at the Court of First Instance, who
shall communicate it within ten days to the Indictment Division.
Five days at the latest before the latter's deliberations the
accused shall be given notice to appear, either in person or
represented by his lawyer, whom he shall instruct by means of a
letter countersigned by the prison governor. The Indictment
Division shall give its decision after hearing the accused or his
lawyer, if they are present, and the prosecutor. Where the
investigation is being conducted by a judge of the Court of
Appeal pursuant to Article 29, the decision shall be given by the
Indictment Division of the Court of Appeal.
(b) After the end of the investigation, and within the five days
preceding the end of the period mentioned above, the prosecutor
at the court in which the case is to be tried or at the Court of
Appeal ... must transmit the file, together with a reasoned
proposal, to the Indictment Division which has jurisdiction
pursuant to the provisions of the following paragraph. In other
respects the provisions of sub-paragraph (a) shall apply.
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 where the offence is classified as a serious
crime or six months where it is a less serious offence. 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 ...
Where the investigation is pending before the investigating judge
and the accused's detention on remand has been prolonged in
accordance with paragraph 1, the investigating judge must
transmit the file to the prosecutor thirty days before the date
on which the maximum period of detention on remand provided for
in this paragraph is due to expire. The prosecutor shall forward
the file to the Indictment Division, together with a reasoned
proposal, within fifteen days. In all other cases the competent
prosecutor must submit to the Indictment Division having
jurisdiction, at least twenty-five days before the date on which
the maximum period of detention on remand provided for in this
paragraph, or an extension period previously ordered, is due to
expire, a proposal calling for the detention order to be either
extended or discharged. In other respects the provisions of the
previous paragraph concerning service on the accused of notice
to appear and the obligation to hear the accused and the
prosecutor shall apply."
33. Where there are concurrent offences constituted by the same act
or where an offence has been committed by a number of acts carried out
over a period of time (continuous offence), the periods laid down in
Article 287 are calculated from the date of the first order remanding
the accused in custody for one of the concurrent offences or for one
of the acts constituting the continuous offence (Article 288). On the
other hand, where the accused is charged in respect of separate acts
constituting separate offences, the time-limit for detention in respect
of each of the offences concerned is specific and Article 288 is not
applicable.
34. Where the accused's detention on remand is prolonged after his
committal for trial, the competent Indictment Division may place him
under judicial supervision at his or the prosecutor's request or even
of its own motion (Article 291 para. 1).
2. Provisions relating to the procedure before indictment divisions
35. In accordance with Article 306 of the Code of Criminal Procedure,
the deliberations of indictment divisions are not public. Decisions
are taken by a majority, after the prosecutor has been heard and has
withdrawn (Article 138).
36. The investigating judge must inform the parties when the
investigation has been closed and transmit the case file to the
prosecutor. The parties may then request the prosecutor - even orally
- to provide them with a copy of the submissions he intends to make to
the Indictment Division. If they make such a request, the prosecutor
is required to serve notice on them within twenty-four hours inviting
them to appear before him for that purpose. From that time onwards the
parties may seek leave to appear in person before the Indictment
Division. If, on the other hand, they do not request a copy of the
submissions, the prosecutor is discharged from any obligation to serve
notice on them. However, his written submissions are filed at the
public prosecutor's office and the parties may inspect them even if,
in the meantime, the submissions have been sent to the Indictment
Division (Article 308).
The Court of Cassation has held that an application for leave to
appear in person must be lodged not later than the deliberations of the
Indictment Division at which the prosecutor makes his submissions
(Court of Cassation, judgments nos. 187/81 and 1813/81).
37. The Indictment Division's powers, after the end of the
investigation, are governed by Article 309, which provides:
"1. The Indictment Division may (a) rule that there is no case
to answer; (b) permanently discontinue the criminal proceedings;
(c) suspend the criminal proceedings, but only for the crimes of
murder, robbery with violence, extortion, theft ... or arson;
(d) order further investigative measures; or (e) commit the
accused for trial at the competent court.
2. On receipt of an application for leave to appear from one of
the parties, an Indictment Division must order the parties'
appearance so that they may provide in the presence of the
prosecutor any necessary clarifications. It may, in addition,
give counsel leave to present argument on the case orally. The
Indictment Division may also make such an order or give such
leave of its own motion. It may not reject an application for
leave to appear except for precise reasons which must be
explicitly set out in its decision. Where it orders the
appearance of one of the parties, it must also summon and hear
the other ..."
The reasons for which indictment divisions may dismiss
applications for leave to appear are a matter for their discretion and
have been laid down in case-law. The Government cite in their memorial
the examples of the danger of disorder, the risk of the accused's
escape or his ill-treatment at the hands of the public, the
impossibility of a rapid transfer, etc. However, the majority of
applications for leave to appear (99%, according to certain estimates)
are refused on the ground that the accused has had a sufficient
opportunity to set out his arguments in his pleading. Nevertheless,
it is established case-law that a rejection for reasons not explicitly
set out is null and void under Article 171 para. 1 (d).
38. An Indictment Division commits the accused for trial when it
considers that there is sufficiently cogent evidence to support a
charge alleging a specific offence (Article 313). At the same time,
if the accused is still detained, it decides whether he should remain
in detention or be released (Article 315 para. 1).
3. Judgment no. 334/1982 of the Athens Court of Appeal
39. In judgment no. 334/1982, to which the prosecutor referred in his
submissions of 5 February 1991 opposing Mr Kampanis's application for
leave to appear (see paragraph 22 above), the Court of Appeal held:
"... the accused's right to seek leave to appear before the
Indictment Division in order to clarify his argument exists ...,
after the investigation has been closed and until adoption of the
final decision, only in those cases specifically provided for by
law, such as review of the length of detention on remand
(Article 287 of the Code of Criminal Procedure). It follows that
an application for leave to appear in person lodged by an accused
person seeking to have his detention on remand terminated or to
be placed under judicial supervision is inadmissible. Moreover,
it was not possible under the previous legislation ... where the
Indictment Division was considering an application for release
... That is evident more particularly from (a) the title under
which Article 309 of the Code of Criminal Procedure appears,
namely 'Jurisdiction of the Indictment Division after the
investigation has been closed', (b) the position of paragraph 2
of that Article just after paragraph 1, which lists the
circumstances in which the Indictment Division has to rule on the
merits of a case, (c) the fact that whereas the appearance of the
accused or their counsel is provided for by Article 287 - which
governs matters relating to the maximum limits of detention on
remand - it is not provided for by Articles 284, 285, 286 and 291
..., and (d) the purpose of Article 309 para. 2 ..., which gives
each of the parties the opportunity to present argument to the
Indictment Division clarifying, or providing further particulars
of, the case before the court. But that opportunity is only
conceivable where the Indictment Division has to rule on the
merits of a case. Adversarial argument before the Indictment
Division concerning an application to substitute judicial
supervision for detention on remand is moreover inconceivable ...
That being the case, the appeal before the court is not provided
for by law and must be rejected as inadmissible."
PROCEEDINGS BEFORE THE COMMISSION
40. Mr Kampanis applied to the Commission (application no. 17977/91)
on 7 March 1991. Relying on Article 5 paras. 1 and 3 (art. 5-1,
art. 5-3) of the Convention, he complained that his detention on remand
was unlawful and had exceeded a "reasonable time". He further alleged
a failure to observe the principle of equality of arms before the
Indictment Division of the Court of Appeal, which had infringed his
right to take proceedings before a court, as secured in Article 5
para. 4 (art. 5-4).
41. On 5 May 1993 the Commission declared this last complaint
admissible in so far as it concerned the proceedings before the
Indictment Division that had ended after 7 September 1990. It declared
the remainder of the application inadmissible.
In its report of 11 January 1994 (Article 31) (art. 31), it found
a violation of Article 5 para. 4 (art. 5-4), but only in the
proceedings concerning the application for release made on
30 January 1991.
The full text of the Commission's opinion is reproduced as an
annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 318-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
42. In their memorial the Government asked the Court to
"reject the application of Mr S. Kampanis ... and hold that the
applicant was not a victim of a violation of Article 5 para. 4
(art. 5-4) of the Convention".
AS TO THE LAW
I. SCOPE OF THE CASE
43. In its decision on the admissibility of the application the
Commission declared Mr Kampanis's complaint under Article 5 para. 4
(art. 5-4) of the Convention admissible in so far as it concerned the
proceedings before the Indictment Division of the Court of Appeal that
ended after 7 September 1990. However, neither in that decision nor
in its opinion did the Commission examine the proceedings relating to
the application for release lodged by the applicant on
18 September 1990 (see paragraph 19 above), that is to say after the
date mentioned above.
44. The Court is vested with full jurisdiction within the limits of
the case as referred to it and is competent, inter alia, to take
cognisance of any question of fact which may arise in the course of
consideration of the case; it remains free to make its own assessment
of the findings in the Commission's report and, where appropriate, to
depart from them, in the light of all the material which is before it
or which, if necessary, it obtains (see, among other authorities, the
Kraska v. Switzerland judgment of 19 April 1993, Series A no. 254-B,
p. 47, para. 22).
45. The Court notes that in his application to the Commission
Mr Kampanis complained of all the proceedings concerning him, but he
did so in general terms without identifying individual sets of
proceedings. Moreover, it does not appear from the file before the
Court that his application for release of 18 September 1990 was
accompanied by an application for leave to appear in person.
It follows that it is not necessary for the Court to consider
this aspect of the case of its own motion.
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4) OF THE
CONVENTION
46. The applicant relied on Article 5 para. 4 (art. 5-4) of the
Convention, which provides:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
47. According to the Court's case-law, the possibility for a prisoner
"to be heard either in person or, where necessary, through some form
of representation" features in certain instances among the "fundamental
guarantees of procedure applied in matters of deprivation of liberty"
(see the Sanchez-Reisse v. Switzerland judgment of 21 October 1986,
Series A no. 107, p. 19, para. 51). That is the case in particular
where the prisoner's appearance can be regarded as a means of ensuring
respect for equality of arms, one of the main safeguards inherent in
judicial proceedings conducted in conformity with the Convention.
48. The applicant alleged that he had not been afforded this equality
of arms before the Indictment Division of the Athens Court of Appeal,
in that he had been refused leave to appear in person before it,
whereas the prosecutor had been heard.
49. The Court observes that only three applications for leave to
appear can be taken into account: the first of these was the one lodged
by Mr Kampanis on 18 December 1990 during the committal proceedings
(see paragraph 23 above); the second and third were the ones lodged on
30 January and 29 March 1991 at the same time as his applications for
release (see paragraphs 20 and 25 above).
However, in order to ascertain whether the applicant was actually
adversely affected by the situation he complained of, the Court must
take account of the state of the proceedings at the relevant time, and
of his previous applications for release.
A. The application of 18 December 1990
50. The Court notes that under Article 309 para. 2 of the Code of
Criminal Procedure the accused is entitled to appear if he so requests
(see paragraph 37 above). To be admissible, such a request must be
lodged as soon as the accused has received a copy of the prosecutor's
submissions or has consulted them at the public prosecutor's office,
and at the latest by the time of the Indictment Division's
deliberations at which the prosecutor makes his oral submissions
(Article 308 and case-law of the Court of Cassation - see paragraph 36
above).
51. In this case, however, the applicant requested leave to appear
on 18 December 1990, although the prosecutor had been heard on
17 September 1990. The Indictment Division rightly noted this in its
decision of 26 February 1991 (see paragraph 24 above).
The Court considers that, as Mr Kampanis did not comply with the
time-limit laid down by the relevant national law on this question, he
cannot complain of an infringement of the principle of equality of arms
in connection with these proceedings.
B. The application of 30 January 1991
52. The Government contended that the Indictment Division's rejection
of the application of 30 January 1991 was entirely justified and did
not infringe the applicant's rights; as he had presented his arguments
in writing and in detail, there was no longer any need for oral
clarification. Moreover, it was wrong to deal separately with the
different sets of proceedings to which Mr Kampanis's applications for
release had given rise; these applications should be taken as forming
part of a single procedure, since they all had the same object and were
based on the same facts and the same arguments.
53. The Court notes that Mr Kampanis lodged his application for leave
to appear on 30 January 1991, although the investigation had been
closed since 11 June 1990 and the file had been before the Indictment
Division since 5 September 1990. At that time the Indictment Division
was shortly due to decide whether to commit him for trial and whether
to extend his detention or order his release (see paragraphs 15 and 38
above).
Article 309 para. 2 of the Code of Criminal Procedure, previously
cited, gives an accused the right to provide oral clarifications to the
Indictment Division (see paragraph 37 above). According to the
case-law of the Greek courts - which was moreover relied on by the
prosecutor when he called for the rejection of the application in issue
- the accused can be given leave to appear only when the court is
preparing to give a ruling on one of the courses of action listed in
paragraph 1 of the same Article, or in one of the cases specifically
provided for by law, in particular by Article 287 of the Code of
Criminal Procedure (see paragraph 39 above).
Moreover, at the material time, whereas Article 287 para. 1
permitted the accused's appearance when detention was to be prolonged
for an initial six-month period (in the case of offences classified as
serious crimes), Article 287 para. 2, which applied to the applicant's
case, contained no similar provision where detention was to be
prolonged for a further period in exceptional circumstances (see
paragraph 32 above). In his application for release of 5 July 1990 -
which falls outside the scope of the Court's review - the applicant
criticised this lacuna in Greek legislation and requested to be given
the benefit of the more favourable provision contained in Article 287
para. 1 (see paragraph 17 above).
The Court further observes that Article 287 para. 6, in force at
the material time, and the present version of Article 287 para. 2 both
make provision for the accused's appearance (see paragraph 32 above).
Nevertheless, when the Court questioned those appearing before it at
the hearing, they gave no convincing explanation as to why Article 287
para. 6 was not applied in the present case.
54. On 5 February 1991 the prosecutor filed his written submissions
requesting the Indictment Division to refuse Mr Kampanis's applications
for release and for leave to appear in person; he presented oral
argument in support of those submissions the next day (see
paragraph 21 above). The Indictment Division ruled accordingly on
13 February (see paragraph 22 above), although the applicant had not
seen the prosecutor's submissions and had consequently not been able
to reply to them either in writing or orally.
At the hearing on 21 February 1995 the Delegate of the Agent of
the Government admitted, firstly, that at that stage the accused was
not entitled under the Code of Criminal Procedure to request a copy of
the prosecutor's submissions or to receive them automatically and,
secondly, that the accused could request a copy of the record of the
prosecutor's oral submissions after the Indictment Division had given
its decision.
55. The Government maintained, however, that these circumstances were
not a sufficient basis for finding an infringement of the principle of
equality of arms. They argued that the prosecutor's role was not that
of a "party" to the proceedings, but that of an impartial organ whose
task was to assist the judges to discover the truth and apply the law.
After setting the prosecution in motion, he merely provided "the
necessary counterweight to the unilateral arguments of the defence".
56. The Court must bear in mind that the prosecutor essentially
represents the interests of society in criminal proceedings. In
connection with the application in issue, his task was to suggest to
the Indictment Division either that the accused's detention be
prolonged or that he be released. In the instant case he always
submitted that detention should be prolonged.
57. Secondly, the Court acknowledges that the applicant filed a
number of applications for release and a number of pleadings in support
of them, both during the investigation and even after it had been
closed. His arguments, which mostly concerned the legal classification
of the offences he was accused of and the reasons given for his
detention, were undoubtedly known to the prosecutor and the Indictment
Division.
However, when he lodged the application in question, Mr Kampanis
had been in prison for twenty-five months and ten days pursuant to
three successive orders, each of which fixed a different starting-point
for the calculation of his detention on remand; in two of these cases
detention had been prolonged up to the maximum permitted under the
Constitution. Moreover, in this particular application he criticised,
inter alia, the incompatibility of the length of his detention with the
Constitution and the Convention.
58. In the light of these considerations, the Court is of the view
that to ensure equality of arms it was necessary to give the applicant
the opportunity to appear at the same time as the prosecutor so that
he could reply to his arguments.
As they did not afford the applicant an adequate opportunity to
participate in proceedings whose outcome determined whether his
detention was to continue or to be terminated, the Greek rules in force
at the material time, as applied in the instant case, did not satisfy
the requirements of Article 5 para. 4 (art. 5-4).
59. It follows that there was a breach of Article 5 para. 4
(art. 5-4) in the proceedings concerned.
C. The application of 29 March 1991
60. The Court notes at the outset that the Indictment Division of the
Court of Appeal gave Mr Kampanis and his lawyer leave to appear before
it on 16 April 1991 while the prosecutor was present and gave them
until 23 April to file further observations (see paragraph 26 above).
61. Like the Government and the Commission, the Court considers that
no breach of Article 5 para. 4 (art. 5-4) has been established.
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
62. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
Under this provision the applicant claims reparation for damage
and reimbursement of his costs and expenses.
A. Damage
63. The applicant claimed that he had sustained pecuniary loss on
account of his - allegedly unlawful - imprisonment after expiry of the
twelve months provided for in Article 6 para. 4 of the Constitution
(see paragraph 31 above); he put this loss at 21 million drachmas
(GRD), on the basis of the salary he would have received during this
period as chairman and managing director of EVO.
In addition he alleged non-pecuniary damage in respect of which
he sought GRD 20 million.
64. The Government argued that Mr Kampanis's claims under these heads
should be rejected.
65. The Delegate of the Commission did not express an opinion.
66. The Court does not perceive any causal link between the breach
of Article 5 para. 4 (art. 5-4) of the Convention and the pecuniary
damage alleged.
As for non-pecuniary damage, it considers that the finding of a
violation constitutes sufficient just satisfaction.
B. Costs and expenses
67. The applicant requested reimbursement of the costs and expenses
incurred in the proceedings in Greece and then at Strasbourg, but left
the amount to the Court's discretion.
68. The Government stated that they were prepared to pay the costs
actually incurred by the applicant in connection with his application
for release of 30 January 1991, in so far as they were absolutely
necessary and reasonable as to quantum. With regard to the proceedings
before the Convention institutions, they pointed out that there had
been no hearing before the Commission.
69. Having regard to the conclusion it reached in paragraph 59 of the
judgment and to its case-law on the question, the Court considers it
reasonable to award the applicant GRD 1,400,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 5 para. 4
(art. 5-4) of the Convention as regards the proceedings relating
to the application for release of 30 January 1991;
2. Holds that there has been no breach of Article 5 para. 4
(art. 5-4) as regards the proceedings relating to the application
lodged on 18 December 1990 during the committal proceedings and
the application for release made on 29 March 1991;
3. Holds that the present judgment in itself constitutes sufficient
just satisfaction in respect of the alleged non-pecuniary damage;
4. Holds that the respondent State is to pay the applicant, within
three months, 1,400,000 (one million four hundred thousand)
drachmas for costs and expenses;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 13 July 1995.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Vincent BERGER
Head of Division
in the registry of the Court