BENZIANE proti Řecku

THIRD SECTION

DECISION

Application no. 39200/16
Noe Nordeine BENZIANE
against Greece

The European Court of Human Rights (Third Section), sitting on 28 February 2023 as a Committee composed of:

Yonko Grozev, President,
Peeter Roosma,
Ioannis Ktistakis, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 39200/16) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2016 by a British national, Mr Noe Nordeine Benziane (“the applicant”), who was born in 1960 and lives in the Isle of Man and who was represented by Mr I. Lardas, a lawyer practising in Athens;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Greek Government (“the Government”), represented by their Agent’s delegates, Mr K. Georgiadis, Senior Adviser, and Ms K. Karavasili and Ms I. Kotsoni, Legal Representatives at the State Legal Council, and to declare the remainder of the application inadmissible;

the information given to the United Kingdom Government regarding their right to intervene in the proceedings pursuant to Article 36 § 1 of the Convention and the fact that the United Kingdom Government did not express a wish to exercise that right;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns an allegation of a violation of the applicant’s right to respect for his private and family life under Article 8 of the Convention, in connection with a prohibition on leaving the country imposed on him pending criminal proceedings against him.

2. The applicant was prosecuted in 2012 for the serious offence of laundering the proceeds of organised crime fοr the benefit of and as part of an organised criminal group (νομιμοποίηση εσόδων από εγκληματική δραστηριότητα με τη μορφή της σύστασης ομάδας). He was accused of signing two fictitious contracts in his capacity as representative of a company based in Hong Kong. The contracts were for the purchase of electricity from another company at a price of 9,999,980.50 euros (EUR) and EUR 11,379,980.50 respectively, and had been drawn up in order to conceal the source of those sums, which had allegedly been acquired by two co-accused through the embezzlement of public money and smuggling, to the detriment of the Greek State.

3. During the main investigation, as the applicant made no appearance to submit his defence, a European arrest warrant was issued against him on 3 April 2013. By order (βούλευμα) no. 365/2014 of the Indictment Division of the Athens Criminal Court of Appeal (Συμβούλιο Εφετών) it was decided that the applicant’s case would proceed to trial and if arrested he would be detained pending trial.

4. On 28 April 2014 the three-member Athens Criminal Court (Τριμελές Εφετείο Κακουργημάτων) adjourned the hearing on account of procedural issues relating to four of the nineteen persons accused. On the same date the applicant’s representatives requested the revocation of the arrest warrant or the replacement of the pre-trial detention order by preventive measures. The request was dismissed by the court.

5. On 1 May 2014 the applicant was arrested in Malaga, Spain, and transferred to a prison in Greece where he was detained as of 21 May 2014. By order no. 2054/2015 of the Indictment Division of the Athens Criminal Court of Appeal his pre-trial detention was extended for twelve months until 21 May 2015.

6. On 11 June 2014 the applicant submitted a request for replacement of the pre-trial detention by preventive measures, which was rejected by order no. 1213/2014 of the Indictment Division of the Athens Court of Appeal. The court considered the applicant’s contention that he had left his business in Hong Kong and that as of 29 June 2012 he had made his permanent residence in the Isle of Man, working as the general director of another company. As he did not have a known residence in Greece and in view of the nature of the acts he was accused of having committed as part of an organised criminal group, the pecuniary damage allegedly caused to the State and the fact that he had been arrested in Spain, the court found that it was very probable that he would commit other crimes and that in order to ensure his appearance in court his pre-trial detention was necessary.

7. The applicant submitted a lease of an apartment in Athens signed on 20 October 2014.

8. On 16 January 2015 the trial started. By order no. 811/2015 of 20 May 2015 the Indictment Division of the Athens Court of Appeal extended the applicant’s pre-trial detention for six months. By order no. 1092/2015 of 16 July 2015 the Indictment Division of the Athens Court of Appeal partially granted a request submitted by the applicant on 29 May 2015 and replaced the pre-trial detention with house arrest under electronic surveillance. Two requests for review of those measures were submitted in August and September 2015 and were rejected.

9. As the time-limit for the electronic surveillance had expired, by order no. 1770/2015 of 13 November 2015 the Indictment Division of the Athens Court of Appeal imposed on the applicant an obligation to present himself at the police station twice per month and a prohibition on leaving the country. A subsequent request to lift these measures was rejected.

10. On 5 February 2016 the applicant submitted another request to lift the measures, which was rejected by order no. 441/2016 of 28 March 2016 of the Indictment Division of the Athens Court of Appeal. The court found that, as there were strong indications of guilt, the measures that had been imposed were proportionate to the severity of the acts of which the applicant was accused and were necessary in order to ensure his appearance in court and the execution of any judgment the court might deliver, also taking into account that he had been arrested in Spain. The court doubted the sincerity of a letter submitted by the applicant in which the company’s director in the Isle of Man warned him that his employment would be terminated if he did not return, as the director had clearly been aware of the measures imposed on the applicant, who was a shareholder of the company and was invoking this ground for the first time since he had been detained. It also considered the applicant’s assertions relating to travel expenses incurred for his family to be unfounded, as his wife was unemployed and could move in with him at the house he was renting in Athens, while his married daughter’s family would obviously be paying their own travel expenses. He did not submit any evidence as regards the housing expenses claimed in the Isle of Man or the health insurance which, according to his assertions, he was prevented from using despite his health condition (hypertension, ventricular hypertrophy, pulmonary edema, type 2 diabetes), which had not deteriorated and could be treated in Greece. The court considered that these claims could not outweigh the high risk of his not appearing in court, considering the consequences if he were to be convicted and the fact that he was of foreign nationality with no significant links to Greece.

11. On 7 February 2017 the applicant was acquitted by judgment no. 534/2017 of the three-member Athens Criminal Court and the preventive measures ended.

12. The applicant complained under Article 8 of the Convention that he had suffered repercussions on his personal life and that he had been deprived of his employment in the Isle of Man. He further complained that the ban in question had prevented him from using his health insurance and that it could have been replaced by a more lenient alternative.

THE COURT’S ASSESSMENT

13. The Government argued that by failing to ask the prosecutor to appeal on points of law against order no. 441/2016, as provided for in Article 483 § 3 of the Code of Criminal Procedure, the applicant had not exhausted domestic remedies. The Court has already rejected this objection in a similar case (see Leotsakos v. Greece, no. 30958/13, §§ 24-28, 4 October 2018) and sees no reason to depart from that conclusion. The Government also argued that the applicant had not raised the alleged breach of his rights under the Convention with the national authorities. Taking into account the applicant’s submissions, the Court considers that the applicant did raise his complaints relating to Article 8 of the Convention “at least in substance” and that the objection must be rejected (see Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010).

14. The Court has examined similar complaints under Article 8 of the Convention having regard to the fact that freedom of movement, particularly across borders, is considered essential to the full development of a person’s private life, especially when he or she has family, professional and economic ties in several countries (see, for instance, Parmak and Bakır v. Turkey, nos. 22429/07 and 25195/07, §§ 81-94, 3 December 2019).

15. In the case at issue, the prohibition on leaving the country imposed on the applicant as a preventive measure while criminal proceedings were pending amounted to an interference with his right to respect for his private and family life within the meaning of Article 8. The measure was issued in accordance with Article 282 § 2 of the Code of Criminal Procedure and thus the interference was “in accordance with the law”. As it was imposed with the aim of securing his presence in criminal proceedings and the enforcement of any judgment against him in connection with serious charges of laundering of the proceeds of crime within an organised criminal group, allegedly involving a significant amount of pecuniary damage caused to the State, it pursued the legitimate aim of prevention of disorder or crime within the meaning of Article 8 of the Convention.

16. As to the question whether the interference was “necessary in a democratic society”, the Court notes that the domestic courts dealing with the applicant’s requests and appeals made a thorough assessment of his personal circumstances and carefully balanced the competing interests. They adequately addressed the applicant’s arguments relating to the negative repercussions on his personal and professional life and they provided sufficient reasons for their decisions.

17. The Court notes that the applicant’s presence in the criminal proceedings was secured following his arrest in Spain on a European arrest warrant. It cannot discern any indications of arbitrariness in the assessment of the Indictment Division of the Athens Court of Appeal that there continued to be a high risk that he would abscond, taking into account the serious consequences in the event of his conviction and the fact that he did not have any significant links to Greece (see paragraphs 5 - 9 above). In so far as the applicant alleged that the authorities’ assessment of the risk of absconding was wrong, it is not for the Court to examine the level of risk which the applicant posed (see Harvey v. the United Kingdom, no. 80237/13, § 61, 21 November 2017).

18. The Court also notes that the applicant has not sufficiently substantiated his claim that he was threatened with dismissal by a company in which he was a shareholder and by which he had allegedly been employed after leaving Hong Kong. The applicant likewise did not substantiate his assertion that there had been serious disruption to his family life. He did not provide sufficient proof that his wife and his adult daughter, who had her own family, had been prevented from visiting him. With regard to the allegations that he had been prevented from using his Isle of Man health insurance and had had to bear heavy costs for his treatment, there is nothing in the applicant’s condition (see paragraph 10 above) or the availability of treatment in Greece to suggest that he was denied appropriate medical treatment under the public health system or that the alleged lack of opportunity to use his insurance endangered his health (see, for illustrative purposes, mutatis mutandis, Folnegović v. Croatia, no. 13946/15, §§ 52-55, 10 January 2017).

19. Assessing the necessity of the measure in the context of its duration, the Court observes that the prohibition was imposed on 13 November 2015 and ended on 7 February 2017. It thus lasted for almost one year and three months, which cannot be considered excessive, and it ended immediately upon his acquittal.

20. Lastly, assessing the applicant’s complaints under Article 8 in the context of the length of the criminal proceedings, the Court notes that the relevant period should be considered to have started on 1 May 2014, when the applicant was arrested in Spain, and to have ended on 7 February 2017, when he was acquitted. Given the complexity of the case, the fact that nineteen persons were accused of involvement, the number of witnesses, the amount of evidence and the volume of documentation submitted, and the significant public interest in the case, the Court considers that the length of the proceedings was not unreasonable.

21. In the light of the above, viewed against the overall circumstances of the case, which indicate that the applicant had avoided appearing before the criminal courts in connection with serious charges, and the absence of any factors militating in favour of lifting the travel ban such as the amount of time which had elapsed since it had been imposed or the case proceeding at an unreasonably slow pace, the prohibition on leaving Greece was justified by relevant and sufficient reasons. It was also proportionate in that a fair balance was struck between the applicant’s right to respect for his private and family life and the prevention of disorder or crime. The domestic authorities gave sufficient reasons to justify that the measure was necessary to prevent the applicant from absconding abroad pending the determination of the criminal charges against him and to enforce any resulting sentence.

22. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 March 2023.

Olga Chernishova Yonko Grozev
Deputy Registrar President