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You are here: BAILII >> Databases >> European Court of Human Rights >> BIZZOTTO v. GREECE - 22126/93 [1996] ECHR 50 (15 November 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/50.html Cite as: [1996] ECHR 50

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In the case of Bizzotto 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 F. Gölcüklü,

Mr F. Matscher,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr J.M. Morenilla,

Mr K. Jungwiert,

Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 28 August and 28 October 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 76/1995/582/668. 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) (1 October 1994) 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 European Commission

of Human Rights ("the Commission") on 13 September 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 22126/93) against the Hellenic Republic lodged with the Commission

under Article 25 (art. 25) by an Italian national, Mr Carlo Bizzotto,

on 15 June 1992.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 5 para. 1 of the Convention (art. 5-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30). The Italian Government, having been

informed by the Registrar of their right to intervene (Article 48 (b)

of the Convention and Rule 33 para. 3 (b)) (art. 48-b), did not

indicate any intention of so doing.

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. 4 (b)). On 29 September 1995, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr B. Walsh,

Mr C. Russo, Mr J. De Meyer, Mr J.M. Morenilla and Mr K. Jungwiert

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

Subsequently Mr E. Levits, substitute judge, replaced Mr Walsh, who was

unable to take part in the further consideration of the case (Rules 22

para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the

Greek Government ("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 Government's memorial on 23 May 1996 and the

applicant's memorial on 29 May 1996.

On 9 January 1996 the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

26 August 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Georgakopoulos, Senior Adviser,

Legal Council of State, Delegate of the Agent,

Mrs K. Grigoriou, Legal Assistant,

Legal Council of State, Adviser;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicant

Mr A. Accolti Gil,

Mr G. Cardini, both of the Florence Bar, Counsel.

The Court heard addresses by Mr Pellonpää, Mr Accolti Gil and

Mrs Grigoriou.

AS TO THE FACTS

I. Circumstances of the case

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 3.5kg 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 3.5kg 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.

B. The applicant's four requests to be released on licence

9. While detained at Patras Prison the applicant made

four applications to the Patras Criminal Court (Trimeles

plimmeliodikio) to be released on licence; three of them were made

before the Athens Court of Appeal sitting with five judges had

delivered its judgment (see paragraph 8 above).

1. The first application

10. In his first application, made on 4 December 1991, Mr Bizzotto

maintained that he had been cured and had ceased to be at all dependent

on drugs during his long stay in prison and after medical treatment.

He also stated that he had a wife and family, that he owned a

profitable farm in Italy and that he was determined not to reoffend in

future. He requested his release on licence under section 23 of

Law no. 1729/1987 (see paragraph 15 below).

In a decision (no. 595/1992) of 3 February 1992 the

Patras Criminal Court dismissed the application.

It began by noting that it was objectively impossible to admit

drug addicts to treatment centres as no such centres existed.

It added:

"It is apparent from sections 14 and 23 of Law no. 1729/1987

... that a person who has been convicted under that

Law and has been found to be a drug addict must be

placed in an appropriate prison or in a State hospital for

special treatment. The placement cannot last for less than a

year. During the period of treatment, the convicted person is

examined periodically in order to establish whether he has

been cured or whether the placement must continue. Periodic

reviews begin after one year and are carried out by the court

either of its own motion or on an application by the

prosecution. If the court ... considers - after studying the

relevant expert's report - that the accused has been cured, it

orders his discharge from the centre; if the term of

imprisonment to which he has been sentenced is longer than the

period of treatment, the prisoner is returned to prison to

serve the remainder of his sentence. In that case, if the

court considers that there is no serious reason why the

prisoner should serve the remainder of his sentence, it orders

his release on licence.

... Persons who have become habitual users of drugs and are

unable to give up the use of them voluntarily - in other words

`drug addicts' - are patients and are treated as such under

section 23. It is to be noted that the Greek legislation in

force ... does not use the scientifically accepted term of

`drug addict' but the expression `user of narcotic substances

subject to special treatment' (section 13 (1) of

Law no. 1729/1987) ...

The release on licence of persons convicted under Article 105

of the Criminal Code should not be confused with the discharge

of convicted drug addicts under the provisions of section 23

of Law no. 1729/1987. In the first case the aim pursued is

solely that of rehabilitation, whereas in the second case it

is also therapeutic ... For an application to this end by a

convicted person to be admissible it is a prerequisite that

(a) he has been placed in a centre to receive treatment for

drug addiction and (b) he has spent at least one year in such

a centre and is considered cured ... A problem arises where

a convicted person has never been admitted to such a centre.

In that case, section 23 does not apply, because the

procedural requirement will not have been satisfied. Such a

person is deprived of his right to make such an application,

which will accordingly be inadmissible. This is not affected

by his alleged recovery in prison while serving his sentence.

The fact that the prison psychiatrist has certified that he

has been cured is of no avail. On the other hand, it raises

serious questions and doubts as to the objectiveness of the

findings in the psychiatric reports made during the

investigation and taken into account by the relevant courts.

Although these persons are described as 'drug addicts' ... in

these reports, within a few months they are regarded as

'completely cured' after non-existent treatment and merely

taking aspirin or Hypnostedon.

...

Besides, the essential requirements for an application to be

admissible are that the convicted person has made a full

recovery and that there is no serious reason why he should

serve the remainder of his sentence.

...

In order to make a finding that there is a 'serious reason',

it is necessary to have regard to the criteria laid down in

Article 106 para. 1 of the Criminal Code.

It appears from the case file that the applicant does not

satisfy the essential conditions laid down by law, in

particular as regards his complete cure. In view of his

antecedents ... and character, it is unlikely that the

applicant will lead an honest life on leaving prison as he

shows a marked tendency to commit drug-related offences."

2. The second application

11. On 5 February 1992 the applicant made a second application for

release on licence, in which he essentially repeated the same arguments

as he had put forward in the first (see paragraph 10 above).

On 27 February 1992 the Patras Criminal Court dismissed the

application (in decision no. 1119/1992) in the following terms:

"The court is not convinced either from the documentary

evidence or from the applicant prisoner's personal attendance

before it that he is totally cured of his dependence on drugs.

He has not been admitted to an appropriate treatment centre

and the treatment in Patras Prison is insufficient to cure him

of an addiction acquired over a very long period of drug use.

In addition, no prison psychiatrist's certificate as to the

progress of his treatment has been produced ..."

3. The third application

12. On 4 March 1992 the applicant made a third application,

supported by psychiatric certificates of his recovery. He sought to

benefit from the provisions of section 23 of Law no. 1729/1987

(see paragraph 15 below).

At the hearing he admitted that he had "been taking drugs"

since the age of 19 and had even taken heroin in the past. However,

he said that he had managed to cure himself of his drug addiction

whilst in prison, where conditions were not conducive, and added that,

if his imprisonment were to continue, his condition would get worse.

In a decision (no. 2694/1992) of 27 May 1992 the

Patras Criminal Court reached the following conclusions:

"The prison doctor's diagnosis is not sufficient to prove that

the applicant has recovered. The latter's application is

inadmissible since he has not been admitted to an appropriate

prison similar to the psychiatric clinic at Korydallos Prison.

Furthermore, at the time of the application the applicant had

served two years, one month and twenty-six days of his

sentence and there is a serious reason for his serving the

remainder, especially as his criminal record shows that in

1974 he was sentenced by the Athens Assize Court to

three years' imprisonment for a drug-related offence."

13. In a letter of 9 June 1993 the Minister of Justice, replying

to an application by Mr Bizzotto to be placed in a treatment centre for

drug addicts, informed him that there was no such centre inside the

prison.

4. The fourth application

14. On 15 December 1993 the applicant made a fourth application for

his release on licence, relying on Articles 105 and 106 of the

Criminal Code (see paragraph 16 below). He said that he had served

three-fifths of his sentence and had been of exemplary conduct

throughout his time in prison. He was no longer addicted to drugs and

was therefore no longer a danger to society; his continued detention

would be harmful to him and could no longer be justified.

On 11 February 1994 the Indictments Division

(Symvoulio plimmeliodikon) of the Patras Criminal Court granted his

application. It found that he had already served four years and

fourteen days of his sentence - that is to say more than half of the

sentence imposed and more than the one-year minimum (Article 105 of the

Criminal Code) - and that during his time in prison he had been of good

conduct, had shown repentance, had complied with prison regulations and

had not incurred any disciplinary penalties.

II. Relevant domestic law

A. Law no. 1729 on the prevention of drug trafficking, the

protection of young persons ... of 3 and 7 August 1987

15. The relevant provisions of Law no. 1729/1987 are as follows:

Section 3

"(1) The prevention of pharmaceutical dependence on

narcotic substances within the meaning of section 4 of this

Law shall be organised at three levels:

(a) preventive information;

(b) treatment;

(c) reintegration into society.

(2) For the purposes of implementing this programme, there

shall be set up by joint decisions, published in the

Official Gazette, of the Minister of Health, Welfare and

Social Security and the Minister competent in each given case:

(a) ...

(b) special drug-addiction units and prisons with medical

facilities;

(c) ..."

Section 5

"(1) A term of imprisonment of at least ten years and a

fine of between 100,000 and 100,000,000 drachmas shall be

imposed on anyone who:

(a) imports or exports drugs or causes them to transit through

Greece;

(b) sells or buys drugs or makes them available in any way

whatsoever to third parties or acts as an intermediary or

stores drugs or puts drugs into storage;

...

(g) possesses or transports drugs in any manner and by any

means whatsoever, either on Greek territory or alongside or

across territorial waters or in Greek airspace;

..."

Section 8

"Anyone who commits any of the offences referred to in

sections 5, 6 and 7 shall be liable to life imprisonment if he

is a reoffender or if he acts by way of occupation or

habitually or if he has acted with a view to causing minors to

use drugs or if the circumstances in which the offences were

committed show him to be particularly dangerous."

Section 12

"(1) Anyone who solely for their own use obtains or

possesses by any means whatsoever a small quantity of drugs or

uses drugs shall be liable to imprisonment. The sentence

shall be served in a special prison with medical facilities.

(2) If any person using drugs as stated in subsection (1) has

not been finally convicted of another offence under this Law

and does not show any symptoms of dependence on narcotic

substances, the court, having regard to the particular

circumstances of the case and the personality of the convicted

person, shall, instead of imposing the sentence referred to in

subsection (1), order that the convicted person follow a

consultation and support programme determined by the

Minister of Health, Welfare and Social Security ... at the

medical centres in each prefecture, at clinics or other

similar institutions.

If the convicted person does not comply with the order, the

court shall order his placement in an appropriate institution

to follow the same programme."

Section 13

"(1) Persons who have become habitual users of drugs and

cannot give up the use of them voluntarily shall receive

special treatment in accordance with the provisions of this

Law.

(2) The court shall determine whether the conditions referred

to in the preceding subsection are met in the case of the

accused or convicted person after an examination at a

specialist treatment centre for drug addicts ...

(3) An offender to whom all the conditions set out in

subsection (1) apply shall, if found guilty of

(a) the offence under section 12 (1), not be punished, but

will be subject to the application mutatis mutandis of the

provisions of the second paragraph of section 14 (1) of this

Law;

(b) the offences referred to in sections 5, 6 or 7, be liable

to at least three months' imprisonment and a fine of between

50,000 and 10,000,000 drachmas; ...

(c) the acts referred to in section 8, be liable to a maximum

of ten years' imprisonment and a fine of between 1,000,000 and

200,000,000 drachmas."

Section 14

"(1) Any offender in respect of whom the conditions set out

in section 13 (1) and (2) of this Law are met and who has been

detained pending trial in accordance with the

Code of Criminal Procedure or who has been convicted of any

offence whatsoever shall be placed in an appropriate prison

with medical facilities. If he is held not to be criminally

responsible under Article 34 of the Criminal Code, he shall be

placed in a State hospital. In both cases he shall be subject

to a special treatment programme determined by the

Minister of Health, Welfare and Social Security.

(2) Where a person is sentenced to a term of imprisonment, any

time spent in hospital shall be reckoned as time served in

prison."

Section 23

"(1) If an offender's period of hospitalisation under

section 14 exceeds one year, which is the minimum period of

treatment, the head of the institution in which he has been

placed shall at the end of each year make a report on the

progress of his treatment to the public prosecutor at the

Criminal Court for the place where the sentence or preventive

measure is to be carried out and shall indicate whether the

convicted person should remain in the institution. On the

basis of this report the Criminal Court, sitting with

three judges, shall decide whether detention should continue.

The court, which may also order an expert's report under

section 13 (2), shall make a final decision whether detention

in hospital should continue.

(2) If a person detained in a hospital has recovered and was

found not to be criminally responsible under Article 34 of the

Criminal Code, the court shall order his release on an

application by the public prosecutor. If part of his sentence

remains to be served, the court shall decide whether there is

a serious reason why he should serve the remainder, but

otherwise shall order his release on licence. The conditions

attached to his release may concern his way of life, and in

particular his place of residence, and include an obligation

to attend the clinic, special drug-addiction centre or general

hospital nearest to his place of residence whenever requested

to do so for the purposes of checking that the conditions are

being complied with ...

(3) If the person detained is not released under the preceding

subsection, the court shall decide at the end of each year, on

application by the detained person himself, the director of

the institution in which he is detained or the

public prosecutor, whether he should be released.

..."

B. Criminal Code

16. Articles 105 para. 1 and 106 of the Criminal Code provide:

Article 105 para. 1

"Anyone who has been sentenced to a term of imprisonment may,

after serving two-thirds of his sentence and in any event at

least one year or, in the case of a life sentence,

twenty years, be released on licence in accordance with the

following provisions."

Article 106

"(1) A prisoner shall only be released on licence if he has

been of good conduct while serving his sentence, has performed

as far as possible his obligations towards the victim ... and

if his antecedents, his personal and social circumstances in

general and his character ... give cause for hope that he will

lead an honest life in the future.

(2) The prisoner may be required to comply with certain

obligations relating to his way of life and in particular his

place of residence. These obligations may at any time be

withdrawn or varied on application by the prisoner.

..."

C. Code of Criminal Procedure

17. Article 565 of the Code of Criminal Procedure provides:

"Doubts as to the nature or length of the sentence

Any doubt or objection as to the execution of the judgment or

as to the nature or length of the sentence shall be decided by

the Criminal Court for the district where the sentence is to

be served. The public prosecutor or the convicted person may

appeal to the Court of Cassation on points of law against such

a decision."

D. The Minister of Justice's circular of 23 September 1992

18. In a circular of 23 September 1992 the Minister of Justice

informed the public prosecutors at the courts of appeal and the

courts of first instance and prison governors that there were no

prisons with medical facilities in Greece as mentioned in section 14

of Law no. 1729/1987. Consequently, it was not possible to implement

court orders directing that drug addicts be placed in such prisons

under that section.

PROCEEDINGS BEFORE THE COMMISSION

19. Mr Bizzotto applied to the Commission on 15 June 1992. He

alleged a violation of Article 5 para. 1 of the Convention (art. 5-1)

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)

(art. 31), it expressed the opinion by eight votes to seven that there

had been a violation of that Article (art. 5-1). The full text of the

Commission's opinion and of the two dissenting opinions contained in

the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and Decisions 1996-V),

but a copy of the Commission's report is obtainable from the registry.

_______________

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

para. 1 (a) of the Convention (art. 5-1-a), 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

para. 1 (e) read in conjunction with Article 18 of the

Convention (art. 18+5-1-e);

(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

I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS

23. As before the Commission, the Government's main submission was

that the application was inadmissible for failure to exhaust

domestic remedies and to comply with the six-month time-limit laid down

by Article 26 of the Convention (art. 26).

A. Failure to exhaust domestic remedies

24. The Government submitted that Mr Bizzotto had failed to exhaust

the remedies available to him in Greek law as required by Article 26

of the Convention (art. 26) as he had not brought an action under

Article 565 of the Code of Criminal Procedure (see paragraph 17 above)

to challenge the manner in which his sentence was to be enforced.

25. The Court points out that Article 26 of the Convention

(art. 26) requires only that available and sufficient remedies for the

alleged violation be exhausted. An action brought under Article 565

of the Code of Criminal Procedure, however, would not have been

effective in the circumstances of the case; when sentencing the

applicant, the Athens Court of Appeal, sitting as a

court of first instance, also ordered his placement in an appropriate

centre to receive treatment for his drug addiction (see paragraph 7

above). However, as the Government said, no centre of that type

existed in Greece at the material time. Such an action would therefore

have been bound to fail. Consequently, the relevant objection must be

dismissed.

B. Failure to comply with the six-month time-limit

26. In addition, the Government invited the Court to dismiss the

application under Article 26 of the Convention (art. 26) for failure

to comply with the six-month time-limit. Time had in fact started to

run, they said, on 6 May 1991 (the date of the decision of the

Court of Appeal sitting as a court of first instance) as the

applicant's complaint related to the situation created after that

decision when he was sent to Patras Prison instead of to a prison with

medical facilities.

27. The Court notes that Mr Bizzotto complained of a situation that

had begun when he was sentenced by the Athens Court of Appeal sitting

as a court of first instance and had continued until his release on

11 February 1994. His complaint was essentially directed at the manner

in which judgment no. 986/1991 had been executed. During that period

he had made four applications for release on licence; the first three

had been based on section 23 of Law no. 1729/1987 and the

Patras Criminal Court had dismissed them on the ground that he had not

been cured of his addiction (see paragraphs 10-12 above).

By making an application to the Commission on 15 June 1992

(a few days after the dismissal of his third application -

see paragraph 12 above), the applicant satisfied the requirement of

Article 26 (art. 26) in that regard. The relevant objection must

therefore be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION

(art. 6-1)

28. Mr Bizzotto submitted that his detention in Patras Prison had

infringed Article 5 para. 1 of the Convention (art. 5-1), 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 para. 1 (art. 5-1-a,

art. 5-1-e).

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 para. 1 (art. 5-1-a) 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)

(art. 5-1-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 para. 1 (art. 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 (art. 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, paras. 39 and

45; Bozano v. France, 18 December 1986, Series A no. 111, p. 23,

para. 54; and Bouamar cited above, p. 20, para. 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, para. 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" 3.5kg 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 para. 1 (art. 5-1-a) 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 (art. 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 para. 1

(art. 5-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objections;

2. Holds that there has been no violation of Article 5 para. 1 of

the Convention (art. 5-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 15 November 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar