CASE OF KARAKASIS v. GREECE
Preliminary objection rejected (six months);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award
Nicolas Bratza
8. On 25 October 1990 and 9 November 1990 criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds. The prosecutor instituted criminal proceedings against him. 9. In 1994 the investigating judge ordered the applicant’s provisional detention (warrant No. 22/94). However, the applicant evaded arrest. 10. On 5 August 1994 the indictments chamber of the first instance criminal court (simvulio plimmeliodikon) of Athens decided to commit the applicant for trial to the three-member Court of Appeal (trimeles efetio) of Athens, sitting as a first instance court, on the above charges. The chamber confirmed the investigating judge’s warrant concerning the applicant’s detention. 11. On 2 February 1995 the indictments chamber decided to commit the applicant for trial on a number of supplementary charges. 12. The applicant was arrested on 2 September 1995. Until 30 October 1995 the applicant was deemed to be serving a sentence that had been imposed on him for unrelated offences in 1989. As a result, the applicant’s detention on remand on the fraud and other charges mentioned above officially started on 30 October 1995. 13. On 17 July 1996 the applicant applied for his provisional release. On 22 August 1996 the indictments chamber of the Court of Appeal of Athens rejected his application. 14. On 2 September 1996 the applicant appeared, together with MB, JK and DK, before the three-member Court of Appeal of Athens. He was represented by counsel who also acted for MB and JK. The trial lasted until 3 September 1996 when the court heard the final submissions of the parties on the question of guilt of the applicant and his co-defendants. Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict MB and JK. 15. The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on MB and JK. Counsel who represented the applicant as well as MB and JK was heard in this connection. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that “the applicant should not be compensated for the time he spent in detention on remand”. The relevant decision was pronounced on the same day, i.e. on 3 September 1996. 16. However, its text was finalised (katharographi) on 9 December 1996. The applicant was informed of this development later on and obtained a certified copy on 28 July 1997. 17. The Code of Criminal Procedure provides as follows: “Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ..., if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand.” “The State does not have any obligation to compensate a person who ... has been detained on remand if the latter, intentionally or by gross negligence, was responsible for his own detention.” “Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State's obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ... The decision regarding the obligation of the State to pay compensation cannot be challenged separately; it is, however, quashed when the decision on the principal issue of the criminal trial is reversed.” “The person who has suffered prejudice may request compensation at a later stage before the same court. In these circumstances, the application must be submitted to the public prosecutor of this court strictly within forty-eight hours from the pronouncement of the judgment in open court.” “After it has been decided that the State must pay compensation, the person entitled thereto may bring his claim before the civil courts, which may not re-examine the existence of the State's obligation.” “Persons who have been unfairly ... detained on remand must be compensated for any material prejudice they have suffered as a result of their ... detention. They must also be compensated for moral damage ... .”