Bizzotto v. Greece (76/1995/582/668) 15 November 1996: Lawfulness of detention of drug addict in ordinary prison

SUMMARY
Greece - detention of a drug trafficker and addict in ordinary prison and not in prison with medical facilities as ordered by court

II. Article 5 1 of the Convention
Applicant's "detention" the consequence of his conviction as a drug trafficker - sentence passed for purposes of punishment - finding that applicant was a drug addict and decision to have him placed in a prison with medical facilities did not in any way affect main ground for his "detention" - only sub-paragraph (a) of Article 5 1 applied in the present case.
Statutory provisions relied on by applicant had been inoperative at the material time - they laid down merely the arrangements for implementing sentences and could not have any bearing on "lawfulness" of deprivation of applicant's liberty.

Conclusion: no violation (unanimously).

A. The applicant's conviction for drug trafficking

6. On 4 March 1990 Mr Bizzotto was arrested in transit at Athens Airport while in possession of 3.5 kg of cannabis which he had purchased in Islamabad (Pakistan) for 1,000 US dollars. He was detained pending trial in Korydallos Prison, Athens.

7. On 6 May 1991 the Athens Court of Appeal, sitting as a first-instance criminal court with three judges (Trimeles efetio kakourgimaton), held as follows (in judgment no. 986/1991):

"The Court finds the defendant guilty of having deliberately and as a drug addict (a) purchased in Islamabad, Pakistan, on 1 March 1990 approximately 3.5 kg of Indian hemp from persons unknown for the sum of 1,000 US dollars (b) brought the said cannabis from Karachi (Pakistan) to Athens by plane on 4 March 1990, (c) imported it into Greece on 4 March 1990 and (d) had it in his possession, wrapped in the lining of an anorak, at Athens Airport on 4 March 1990.

The stratagems the defendant used to hide and transport this cannabis, the ease with which he travelled on several occasions to Pakistan, Thailand and other eastern countries and obtained cannabis in Pakistan, the connections which he has in that country, his knowledge of how strict customs security measures are in different countries, his previous convictions for drug-related offences, and the large quantity of cannabis he purchased for resale, show him to be particularly dangerous."

It sentenced him to eight years' imprisonment and a fine of two million drachmas. In addition, it suspended his civic rights for five years and ordered that he be permanently prohibited from re-entering the territory after his release. Lastly, it ordered his placement in an appropriate centre to receive treatment for his drug addiction (under section 14 of Law no. 1729/1987 - see paragraph 15 below).

8. On 22 October 1992, on an appeal by the applicant, the Athens Court of Appeal sitting with five judges (Pentameles efetio) upheld the judgment of the court of first instance (see paragraph 7 above) but reduced the sentence to six years' imprisonment and a fine of one million drachmas (judgment no. 1003/1992). It also ordered "the defendant's placement in an appropriate prison or in a State hospital where he can receive treatment for drug addiction".
However, Mr Bizzotto was never admitted to any such institution; he served his sentence in Patras Prison.
In a letter of 26 November 1992 the public prosecutor notified the governor of Patras Prison of the Court of Appeal's decision and indicated that the part of the judgment dealing with the applicant's placement in a prison with medical facilities did not apply as no such institutions existed. However, he added that he would contact the governor if such an institution opened before Mr Bizzotto finished serving his sentence.

PROCEEDINGS BEFORE THE COMMISSION

19. Mr Bizzotto applied to the Commission on 15 June 1992. He alleged a violation of Article 5 1 of the Convention for failure to place him in an appropriate centre to receive treatment for his drug addiction.

20. On 2 December 1994 the Commission declared the application (no. 22126/93) admissible. In its report of 4 July 1995 (Article 31), it expressed the opinion by eight votes to seven that there had been a violation of that Article.

FINAL SUBMISSIONS TO THE COURT

21. In their memorial the Government invited the Court to "dismiss Carlo Bizzotto's application in its entirety".

22. The applicant requested the Court to hold

"(1) that there was not a lawful detention after conviction by a competent court as required by the wording of Article 5 1 (a) of the Convention, since there was a clear contrast between the detention the applicant was sentenced to by the Greek court and the detention he actually served;

(2) that the applicant's continuous detention for four years and fifteen days in an ordinary prison, although he was a drug addict and therefore entitled to be detained in an appropriate place, constitutes a violation of Article 5 1 (e) read in conjunction with Article 18 of the Convention; and

(3) that the applicant and his family are entitled to receive compensation for non-pecuniary and pecuniary damage and the costs and losses suffered as a consequence of the recognised violations of the Convention; and

(4) that the Greek Government are to pay appropriate compensation, including legal costs, to the applicant and his family by way of just satisfaction."

 

AS TO THE LAW

II. ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION

28. Mr Bizzotto submitted that his detention in Patras Prison had infringed Article 5 1 of the Convention, which provides:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

..."

The applicant complained of the obvious contrast between the conditions in which the Greek courts had ordered him to be detained and those in which he was in fact held. He had been sent to an ordinary prison without any medical facilities for ensuring the proper execution of his sentence and had received treatment wholly unsuited to him as a drug addict. In the second place, the fact that he was not placed in a treatment centre had prevented him being released on licence under section 23 (2) of Law no. 1729/1987. If he had been cured of his drug addiction, as the Government alleged, the Patras Criminal Court should have ordered his release on licence as there was no serious reason why he should serve the remainder of his sentence; he argued that evidence of this had been provided by the Criminal Court's decision of 11 February 1994 to release him (see paragraph 14 above). On the other hand, if his condition had not improved, as that same court had held on three occasions, it was due to the failure to place him in a suitable centre for treatment.
In either case the applicant's detention was not lawful under sub-paragraphs (a) and (e) of Article 5 1.

29. The Commission agreed. It expressed the opinion that the applicant's deprivation of liberty did not comply with the measures ordered against him and, referring to the case of Bouamar v. Belgium (judgment of 29 February 1988, Series A no. 129), that it was incumbent on the State to provide the infrastructure to meet the requirements of Law no. 1729/1987. While in prison, Mr Bizzotto had been unable to consult a doctor or any qualified nursing staff; the only treatment he appeared to have received had been the occasional dose of sleeping tablets, which could not be considered appropriate treatment for drug addiction.

30. The Government disagreed with those views.
They submitted, firstly, that the requirements of sub-paragraph (a) of Article 5 1 had been met in the instant case. The applicant had been detained in Patras Prison by virtue of a judicial decision whereby he had been sentenced to a term of eight years in prison,   reduced to six years on appeal. They acknowledged that the institutions mentioned in section 14 of Law no. 1729/1987 did not yet exist in Greece, but maintained that the Convention did not oblige Contracting States to provide special infrastructure and methods to deal with drug-related problems. States were free to adopt whatever measures they considered necessary and choose the most appropriate time for implementing them. Even supposing that treatment centres able to treat Mr Bizzotto had existed at the material time, section 23 gave the courts a discretion to decide whether a drug addict who, like the applicant, had been given a custodial sentence should remain in detention or be released on licence.
The Government alleged, secondly, that sub-paragraph (e) applied only in circumstances different from those of the instant case, that is to say where a person was detained in a treatment centre without that being objectively required by his condition. In his applications for release on licence, however, Mr Bizzotto had claimed to be totally cured.

31. The Court reiterates that in order to comply with Article 5 1, the detention in issue must take place "in accordance with a procedure prescribed by law" and be "lawful". The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, the following judgments: Winterwerp v. the Netherlands, 24 October 1979, Series A no. 33, pp. 17-18 and 19-20, 39 and 45; Bozano v. France, 18 December 1986, Series A no. 111, p. 23, 54; and Bouamar cited above, p. 20, 47).
Furthermore, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 21, 44).

32. The Court finds that the applicant's "detention" was the consequence of his conviction as a drug trafficker. The Athens Court of Appeal sitting as a court of first instance described him as "particularly dangerous" and sentenced him under Law no. 1729/1987 to eight years' imprisonment for having "purchased", "transported", "imported" and "been in possession of" 3.5 kg of Indian hemp (see paragraph 7 above). The Athens Court of Appeal sitting with five judges - even though it reduced the sentence to six years - upheld the judgment delivered at first instance (see paragraph 8 above). Contrary to what obtained in the case of X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46), a sentence was in fact passed in the instant case for the purposes of punishment. The same court's finding that the applicant was a drug addict and the decision to have him placed - as required by section 14 of Law no. 1729/1987 - in a prison with medical facilities do not in any way affect the main ground for his "detention". Accordingly, only sub-paragraph (a) of Article 5 1 applies in the present case.

33. The Court does, of course, recognise the humanitarian nature of the provisions of Law no. 1729/1987 that are curative in purpose and which the applicant alleged had been disregarded by the authorities, namely section 14 - which provides for the setting up of prisons with medical facilities - and section 23, which in certain circumstances allows offenders who are also drug addicts to be released early on licence (see paragraph 15 above). However, it notes that at the material time, that is to say five years after that Law was passed, these provisions remained inoperative, as the Government acknowledged.

34. Nevertheless, in the context of the instant case, the aforementioned sections lay down merely the arrangements for implementing sentences. Although such arrangements may sometimes be caught by the Convention - in particular where they are incompatible with Article 3 - they cannot, in principle, have any bearing on the "lawfulness" of a deprivation of liberty.

35. Consequently, the Court finds that the applicant's detention in the ordinary prison in Patras did not infringe Article 5 1.

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