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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19773/92

Nicholas Philis

against

Greece

REPORT OF THE COMMISSION

(adopted on 16 January 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3

A. Criminal proceedings against the applicant

for insulting a judicial authority

(paras. 16-24). . . . . . . . . . . . . . . . . . .3

B. Disciplinary proceedings against the applicant

(paras. 25-29). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 30-54) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 30). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 31). . . . . . . . . . . . . . . . . . . . .5

C. As regards the alleged violation of Article 6 para. 1

of the Convention in the criminal proceedings

(paras. 32-39). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 40). . . . . . . . . . . . . . . . . . . . .6

D. As regards the alleged violation of Article 6 para. 1

of the Convention in the disciplinary proceedings

(paras. 41-51). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 52). . . . . . . . . . . . . . . . . . . . .8

E. Recapitulation

(paras. 53-54). . . . . . . . . . . . . . . . . . .9

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 20

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Greek citizen, born in 1937 and resident in

Athens.

3. The application is directed against Greece. The respondent

Government were represented by their Agent, Mr. L. Papidas, President

of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),

Mr. M. Apessos, Deputy Member (Paredros) of the Legal Advisory Council

of the State, and Mrs. K. Grigoriou, Assistant Member (Dikastikos

Antiprosopos) of the Legal Advisory Council of the State.

4. The case concerns the length of criminal and disciplinary

proceedings against the applicant. The applicant invokes Article 6

para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 January 1992 and registered

on 27 March 1992.

6. On 31 August 1994 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant's complaints concerning the length of the

criminal and disciplinary proceedings. It declared the remainder of

the application inadmissible.

7. The Government's observations were submitted on 19 December 1994

after one extension of the time-limit fixed for this purpose. The

applicant replied on 31 January 1995.

8. On 24 May 1995 the Commission declared admissible the applicant's

complaint under Article 6 para. 1 of the Convention.

9. The text of the Commission's decision on admissibility was sent

to the parties on 2 June 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant submitted observations on 28 June 1995.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 16 January 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decisions on the admissibility of the

application are attached hereto as Appendices I and II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Criminal proceedings against the applicant for insulting a

judicial authority

16. In the course of proceedings he had instituted against certain

officials of the Autonomous Organisation for Labour Housing (Aftonomos

Organismos Ergatikis Katikias - hereafter OEK) the applicant addressed

on 14 April 1986 a letter to the Indictments Chamber of the Court of

Appeal (Simvulio Efeton) of Athens in which he claimed that "the

proceedings followed by the competent authorities in his various legal

actions leave no doubt as to the existence of bias in favour of OEK

officials and that the clear purpose of the delay in the proceedings

was to ensure that the crimes would be prescribed".

17. On 25 April 1986 the Public Prosecutor of the Court of Appeal

(Isangeleas Efeton) of Athens transmitted the letter to the Public

Prosecutor of the First Instance Criminal Court (Isangeleas

Plimeliodikon) of Athens considering that the applicant should be

charged with insulting the judicial authorities. On 30 April 1986 the

Public Prosecutor of the First Instance Criminal Court ordered a

preliminary inquiry into the affair.

18. On 9 October 1986 the applicant appeared before the investigating

judge. He denied the charges and informed the judge of his intention

to lodge a memorial by 15 October 1986. In the memorial he submitted

on 14 October 1986 the applicant requested the examination of a number

of witnesses. Four witnesses were examined between 10 November 1986 and

20 November 1986. On 20 January 1987 the investigating judge

transmitted the case-file to the Public Prosecutor.

19. On 20 March 1987 the Public Prosecutor instructed the

investigating judge to complete the case-file by ordering the applicant

to submit a number of court decisions mentioned in his memorial of

14 October 1986. On 11 June 1987 the applicant submitted these

decisions together with another memorial. On 12 June 1987 the

investigating judge transmitted these documents to the Public

Prosecutor.

20. On 5 October 1987 the Public Prosecutor charged the applicant

with insulting the judicial authorities and fixed a hearing before the

three-member First Instance Criminal Court (Trimeles Plimmeliodikio)

of Athens for 12 October 1988. On 13 September 1988 a summons was

served on the applicant ordering him to appear before the

first instance court on 12 October 1988. On 22 September 1988 the

applicant appealed against this order asking for his case to be heard

by an indictments chamber. On 30 September 1988 the Public Prosecutor

of the Athens Court of Appeal rejected the appeal.

21. On 12 October 1988 the First Instance Criminal Court of Athens

found the applicant guilty and sentenced him to five months'

imprisonment, a penalty which was immediately converted to a fine of

400 drachmas per day. The applicant appealed immediately.

22. On 5 November 1990 the Court of Appeal (Efetio) of Athens

postponed the hearing of the applicant's appeal. On 25 October 1991 the

Court of Appeal allowed the applicant's appeal and pronounced his

innocence.

23. The decision of the court and the record of the hearing were

"finalized" (katharographi) on 19 November 1991. They were delivered

to the applicant on 28 November 1991. On 9 December 1991 the applicant

lodged an application with the Court of Appeal requesting the

correction and completion of the record and the decision of the court.

On 15 April 1992 the Court rejected the applicant's request as

inadmissible on the ground that it had not been submitted within

twenty days from the pronouncement of the judgment, i.e. from

25 October 1991.

24. Under Articles 473 and 506 of the Code of Criminal Procedure, the

prosecutor had the right to appeal in cassation against the decision

of the Court of Appeal within ten days from the "finalisation" of that

decision. However, no such appeal was lodged and the decision of the

Court of Appeal became final on 29 November 1991.

B. Disciplinary proceedings against the applicant

25. On 2 August 1982 the OEK complained to the Technical Chamber of

Greece (Tehniko Epimelitirio Ellados - hereafter TEE) of the various

proceedings the applicant had introduced against the OEK and engineers

working for it. Acting on this complaint the President of the

Disciplinary Council of the TEE instituted disciplinary proceedings

against the applicant for improper behaviour. On 14 November 1983 the

charges were drawn and a Rapporteur was designated. On 9 March 1984 the

Disciplinary Council decided to adjourn the examination of the case,

because the President of the OEK, who had been called to testify, did

not appear. On 20 November 1984 the Disciplinary Council suspended the

applicant from practising his profession for a period of ten months.

26. The applicant was notified of the decision by letter of the TEE

dated 7 June 1985. On 21 June 1985 the applicant appealed to the

Highest Disciplinary Council of the TEE. On 14 April and 18 May 1992

the applicant wrote to the TEE requesting information on to the outcome

of his appeal. On 22 May 1992 the TEE replied that the applicant's

appeal was under review by one of the members of the Highest

Disciplinary Council of the TEE acting as rapporteur and that his

appeal would be heard upon submission of the latter's report.

27. By letter of 17 February 1993 the applicant was invited to attend

the hearing of 10 March 1993 of the Highest Disciplinary Council of the

TEE. On 5 March 1993 the applicant challenged all the members of the

council and asked for the Article 6 guarantees to be respected at the

hearing.

28. On 10 March 1993 the Council rejected the applicant's request of

5 March 1993. It allowed, however, his appeal and cleared him of the

charges.

29. On 2 April 1993 the applicant requested the correction of the

decision of 10 March 1993. On 26 April 1993 the Highest Disciplinary

Council of the TEE addressed a letter to the applicant answering the

points raised in his request of April 1993. The decision, however, was

not corrected.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

30. The Commission has declared admissible the applicant's complaints

relating to the length of the criminal and the disciplinary proceedings

against him.

B. Points at issue

31. The points at issue are accordingly:

- whether the length of the criminal proceedings complained of

exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention;

- whether the length of the disciplinary proceedings complained

of exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

C. As regards the alleged violation of Article 6 para. 1 (Art. 6-1)

of the Convention in the criminal proceedings

32. Insofar as relevant Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"In the determination of .... any criminal charge against

him, everyone is entitled to a .... hearing within a

reasonable time by a .... tribunal .... ."

33. The applicant submits that the period to be taken into

consideration began on 25 April 1986 and that the criminal charges

against him have not yet been determined, because the Court of Appeal

unlawfully refused to correct its judgment of 25 October 1991. The

applicant argues that the case against him was simple, that he did not

contribute in any manner whatsoever to the delays and that the

authorities were entirely responsible for the inordinate length of the

proceedings. In the course of the two years and five months that

elapsed between the moment when he was charged and the first instance

hearing nothing but purely routine acts were performed, the completion

of the case-file ordered on 20 March 1987 was unnecessary and a period

of total inactivity of three years intervened between the

first instance and appeal judgments. Domestic procedural rules

providing for the finalisation of judgments within eight days were not

respected and a further period of total inactivity of over six months

intervened before his application for the correction of the judgment

of 25 October 1991 was rejected. The applicant finally argues that the

proceedings against him should have been concluded more expeditiously

given the importance of what was at stake, namely his right to freedom

of expression and access to the courts.

34. The Government submit that there were no significant delays at

the pre-trial stage of the proceedings against the applicant. Although

the Court of Appeal pronounced its judgment three years after the first

instance judgment, the Government argue that this cannot amount to a

violation of Article 6 para. 1 (Art. 6-1) of the Convention. The

workload of the Court of Appeal is very heavy and the case of the

applicant could not have been given priority given its nature and the

fact that the applicant was not detained.

35. The Commission considers that the period to be taken into

consideration began at the latest on 9 October 1986, when the applicant

first appeared before the investigating judge. It ended on

29 November 1991, when the decision of the Court of Appeal pronouncing

the applicant's acquittal became final. Consequently, the proceedings

complained of lasted five years one month and 20 days.

36. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of the

case, the conduct of the applicant and that of the competent

authorities (see Eur. Court H.R., Kemmache judgment of

27 November 1991, Series A no. 218, p. 27, para. 60).

37. The Commission notes that the case was not complex and that the

applicant's conduct did not significantly contribute to the length of

the proceedings. It also notes the existence of a period of inactivity

imputable to the State between 12 October 1988, when the applicant

appealed against his conviction at first instance, and 25 October 1991,

when the Court of Appeal of Athens pronounced his acquittal. It

considers that no convincing explanation for this delay has been

advanced by the respondent Government. The excessive case-load of the

Court of Appeal of Athens does not constitute such an explanation.

38. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision in the

determination of a criminal charge against him within a reasonable time

(cf. Eur. Court H.R., Baggetta judgment of 25 June 1987, Series A

no. 119, p. 32, para. 23).

39. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

40. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D. As regards the alleged violation of Article 6 para. 1 (Art. 6-1)

of the Convention in the disciplinary proceedings

41. Insofar as relevant Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"In the determination of his civil rights and obligations

....., everyone is entitled to a .... hearing within a

reasonable time by a .... tribunal .... ."

42. The applicant submits that the proceedings in question involved

a determination of his civil rights. He argues that his civil rights

have not yet been determined because of the failure of the Higher

Disciplinary Council to correct its decision. In the applicant's

opinion, the case was simple, he did not contribute in any manner

whatsoever to the delays and the authorities were entirely responsible

for the inordinate length of the proceedings, having allowed the

proceedings to stagnate for a period of nearly eight years between the

filing of his appeal and the appeal hearing. The applicant finally

argues that the proceedings against him should have been concluded more

expeditiously given the importance of what was at stake, namely his

right of access to the courts.

43. The Government submit that Article 6 (Art. 6) of the Convention

is not applicable in the present case. The disciplinary organs of the

TEE cannot be considered to be tribunals within the meaning of

Article 6, (Art. 6) because of the manner in which they are constituted

and the lack of publicity of the proceedings. The applicant never

risked being suspended from exercising his profession, because the

first instance penalty could not be executed pending his appeal, which

led eventually to his acquittal. As regards the substance of the

complaint, the Government submit that, although the applicant lodged

his appeal against his conviction at first instance in June 1985, the

Commission has to limit its examination to events which occurred after

19 November 1985. They also argue that the examination of the

applicant's appeal was delayed to allow for the conclusion of the

various other court proceedings between the applicant and the OEK. The

applicant never sought to expedite the hearing of his appeal. In the

light of all the above, the Government conclude that the proceedings

were reasonable in length.

44. The Commission notes that in the disciplinary proceedings in

question the applicant was threatened with suspension from the exercise

of his profession. The outcome of the proceedings was, therefore,

directly decisive for the applicant's right to continue working as a

civil engineer, which is a civil right (see, mutatis mutandis,

Application No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100). It follows

that the proceedings involved the determination of a dispute over

"civil rights and obligations" and came, therefore, within the scope

of Article 6 para. 1 (Art. 6-1) of the Convention.

45. With regard to the period to be considered, the Commission notes

that the proceedings began, at the latest, on 14 November 1983, when

the disciplinary charges against the applicant were drawn up. The

period the Commission is competent ratione temporis to examine began

on 20 November 1985, when the recognition by Greece of the right of

individual petition took effect. However, in assessing the

reasonableness of the length of the proceedings account must be taken

of the state of the proceedings on 20 November 1985 (cf. Eur. Court

H.R., Foti and others judgment of 10 December 1982, Series A no. 56,

pp. 18-19, para. 53). The proceedings ended on 10 March 1993 when the

applicant was cleared of the charges by the Highest Disciplinary

Council of the TEE. Consequently, the proceedings complained of lasted

seven years, three months and 19 days.

46. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of the

case, the conduct of the parties and the conduct of the authorities

dealing with the case (see Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

47. The Commission notes that the case was not complex. It also notes

the existence of a period of inactivity between 21 June 1985, when the

applicant appealed against his disciplinary conviction at

first instance, and 10 March 1993, when he was acquitted by the Highest

Disciplinary Council of the TEE. The Commission, being competent

ratione temporis to examine the largest part of this period, considers

that the inactivity is imputable to the State.

48. Contrary to what the Government argue, the Commission considers

that the applicant cannot be held responsible for the delays on the

ground that he never sought to expedite the hearing of his appeal. In

accordance with the case-law of the Court, a person facing a "criminal

charge" within the meaning of Article 6 (Art. 6) of the Convention is

not expected to cooperate actively with the judicial authorities

(Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51,

p. 36, para. 82). The same holds true for an accused person in

disciplinary proceedings involving the determination of "civil rights

and obligations" within the meaning of Article 6 (Art. 6). Moreover,

insofar as the Government may be arguing that the applicant has waived

his right to a hearing within a reasonable time, the Commission recalls

that, in accordance with the case-law of the Court, the waiver of a

right guaranteed by the Convention must be established in an

unequivocal manner (Eur. Court H.R., Oberschlick judgment of

23 May 1991, Series A no. 204, p. 23, para. 51). This was not,

however, the case in the proceedings in question.

49. The Commission further considers that the respondent Government

have advanced no other convincing explanation for the delay before the

Highest Disciplinary Council of the TEE. The Government's contention

that the proceedings were suspended to await the outcome of other

relevant court proceedings cannot be accepted in the absence of a

formal decision to this effect by the TEE's disciplinary organs.

50. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision on disputes

relating to civil rights and obligations within a reasonable time

(cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A

no. 206-C, p. 32, para. 17).

51. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

52. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

53. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in the

criminal proceedings against the applicant.

54. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in the

disciplinary proceedings against the applicant.

Secretary Acting President

to the First Chamber of the First Chamber

(M.F. BUQUICCHIO) (J. LIDDY)

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PHILIS v. GREECE

PHILIS v. GREECE

LEXI