PHILIS v. GREECE
Doc ref: 15264/89 • ECHR ID: 001-45582
Document date: February 10, 1993
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EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 15264/89
Nicholas PHILIS
against
Greece
REPORT OF THE COMMISSION
(Adopted on 10 February 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 10) . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 11 - 15). . . . . . . . . . . . . . . . . . . . . . . . . .2
III. OPINION OF THE COMMISSION
(paras. 16 - 34). . . . . . . . . . . . . . . . . . . . . . . . . .4
A. Complaint declared admissible
(para. 16). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
B. Points at issue
(para. 17). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
C. The alleged violation of Article 6 para. 1 of the Convention
(paras. 18 - 28). . . . . . . . . . . . . . . . . . . . . . . . . .4
CONCLUSION
(para. 29). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
D. The alleged violation of Article 13 of the Convention
(paras. 30 - 31). . . . . . . . . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 32). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Recapitulation
(para. 33). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
APPENDIX I: Partial Decision on the admissibility
of the application. . . . . . . . . . . . . . . . . . .7
APPENDIX II: Final Decision on the admissibility
of the application. . . . . . . . . . . . . . . . . . 12
I. INTRODUCTION
1 The present Report concerns Application No. 15264/89 by
Nicholas Philis against Greece, introduced on 20 June 1989 and
registered on 20 July 1989.
2 The applicant is a Greek national born in 1937 and resident in
Athens.
3 The application is directed against Greece. The respondent
Government were initially represented by their Agent,
Mr. Constantinos Economides, Head of the Special Legal Department of
the Ministry of Foreign Affairs. They are now represented by their
Agent, Mr. George Sgouritsas, President of the Legal Council of the
State (Nomino Symboulio ton *ratous).
4 On 5 November 1990, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits
of the applicant's complaint concerning the length of criminal
proceedings. The Commission declared inadmissible the remainder of
the application. The Commission's partial decision is annexed to this
Report (Appendix I).
5 On 8 April 1991 the Commission referred the application to the
First Chamber.
6 The Government submitted their observations on 11 April 1991.
The applicant's observations in reply were contained in his letter of
10 May 1991.
7 On 7 July 1992 the Commission (First Chamber) declared
admissible the applicant's complaint concerning the length of the
proceedings. This final decision on admissibility is also appended
to this Report (Appendix II). The applicant has submitted further
observations on 21 August 1992.
8 Having noted that there is no basis upon which a friendly
settlement within the meaning of Article 28 para. 1 (b) of the
Convention can be secured, the Commission (First Chamber), after
deliberating, adopted this report on 10 February 1993, in accordance
with Article 31 para. 1 of the Convention, the following members
being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
9 In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by Greece.
10 The text of the report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with
Article 31 para. 1 of the Convention.
II. ESTABLISHMENT OF THE FACTS
11 On 20 September 1985 criminal proceedings were instituted
against the applicant for issuing a cheque without funds.
12 On 26 November 1986 the First Instance Court of Athens
(*onomeles Plimmeliodikeio) held a hearing on the case and examined
a witness on the applicant's behalf and the applicant himself. The
court found the applicant guilty and sentenced him to fifteen days'
imprisonment convertible into a fine of 10,300 Dr. The judgment was
read out in open court in the presence of the applicant on the same
date.
13 On 14 December 1987 and 26 January 1988 the applicant complained
to the Prosecutor of the Court of Cassation (*isangeleas *reios
Pagos) that the judgment of the Athens Court had not been finalised
and registered in the court's registry (Katharographi) within the
15-day time-limit prescribed by Article 473 para. 3 of the Code of
Criminal Procedure. He did not receive any reply. On 29 March 1988
the applicant received the text of the judgment. On the front page it
was indicated that the decision had been signed and registered on
10 February 1988.
14 On 15 April 1988 the applicant appealed to the Court of
Cassation. He submitted that the First Instance Court of Athens had
failed to examine whether the bank's refusal to pay the cheque was
justified, i.e. whether the cheque was actually without cover, and
contended that his fraudulent intent was not proven. As to the
admissibility of his appeal the applicant submitted that the running
of the 20-day appeal time-limit began on 29 March 1988, when he
received the judgment. He also contended that the registration was
irregular.
15 In its decision of 10 February 1989 the Court of Cassation found
that the appeal time-limit began at the latest on 10 February 1988
when the decision was signed and registered. Consequently the Court
of Cassation declared the appeal inadmissible for having been
introduced out of time.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
16 The Commission has declared admissible the applicant's complaint
relating to the length of the criminal proceedings before the Greek
courts.
B. Points at issue
17 The points at issue in the present case are as follows:
(i) Has the length of the proceedings complained of
exceeded the "reasonable time" referred to in Article 6
para. 1 (Art. 6-1) of the Convention?
(ii) Has the length of the proceedings complained of violated
the applicant's right to have an effective remedy under
Article 13 (Art. 13) of the Convention?
C. The alleged violation of Article 6 para. 1 (Art. 6-1)
of the Convention
General considerations
18 Under Article 6 para. 1 (Art. 6-1) of the Convention, "In the
determination of any criminal charge against him ..., everyone is
entitled to a .... hearing within a reasonable time by (a) ....
tribunal ...."
19 It is not contested that the above provision applies to the
proceedings complained of.
20 According to the constant case-law of the Court and the
Commission, the reasonableness of the length of proceedings falling
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention
must be assessed in the light of the circumstances of each case and
having regard in particular to the following criteria: the complexity
of the case, the conduct of the applicant and that of the competent
authorities (see, for example, Eur. Court H.R., Kemmache judgment of
27 November 1991, Series A no. 218, p. 27, para. 60).
Determination and assessment of the length of the proceedings
21 With regard to the period to be considered, the Commission notes
that the proceedings began on 20 September 1985, when the applicant
was charged with issuing a cheque without funds. The period the
Commission is competent to examine ratione temporis began on
20 November 1985, when 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 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 February 1989, when
the Court of Cassation delivered its judgment on the applicant's
appeal. Consequently, the proceedings complained of lasted 3 years,
4 months and 20 days, of which more than 3 years were after the Greek
declaration under Article 25 (Art. 25) of the Convention.
22 The Commission notes that the investigation and first instance
proceedings, until judgment at first instance was given orally,
lasted some 14 months. The proceedings before the Court of Cassation
lasted not quite 8 months. The Commission finds that these periods
cannot be regarded as unreasonably long.
23 The Commission however observes that what undoubtedly
contributed to the prolongation of the proceedings was the 14 months
period between 26 November 1986, when the first instance judgment was
given orally, and 10 February 1988, on which date the judgment was
"finalised".
24 The applicant submits that he has in vain requested on several
occasions a "finalised" version of the judgment in order to appeal to
the Court of Cassation. He further complained to the Prosecutor of
the Court of Cassation of the delays in the "finalisation". However,
his requests and complaints remained unanswered.
25 The Government submit the overall length of the proceedings was
not unreasonable. In particular the period of time taken for the
"finalisation" is imputable to the applicant who did not ask for the
"finalisation" of the judgment at an earlier stage. Having regard to
the heavy workload of the Athens First Instance Court such a demand
was necessary for ensuring a speedy "finalisation".
26 The Commission finds that the complexity of the case cannot
justify the length of the proceedings complained of.
27 It further notes that the "finalisation" of the judgment in the
present case only involved the filling up of a judgment form of
7 pages and its signature by the Judge and the Registrar. It finds
that the 14 months delay in this "finalisation" is imputable to the
judicial authorities and not to the applicant, as the Government
submit. In particular, with regard to the excessive case-load of the
Athens' First Instance Court, the Commission reiterates that under
Article 6 para. 1 (Art. 6-1) of the Convention everyone has the right
to a final decision within a reasonable time in the determination of
any criminal charge against him. It is for Contracting States to
organise their legal systems in such a way that their courts can meet
this requirement (see Eur. Court H.R., Vocaturo judgment of
24 May 1991, Series A no. 206-C, p. 32, para. 17).
28 In the light of the criteria established by the case-law and
having regard to all the circumstances of the case, the Commission
considers that the length of the proceedings complained of has been
excessive and incompatible with the "reasonable time" requirement.
Conclusion
29 The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. The alleged violation of Article 13 (Art. 13) of the Convention
30 The applicant has also invoked Article 13 (Art. 13) of the
Convention which provides: "Everyone whose rights and freedoms as set
forth in this Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
31 The Commission observes however that the applicant has not under
this provision made any complaint other than that of the excessive
length of the proceedings examined above under Article 6 para. 1
(Art. 6-1) of the Convention. Therefore, the Commission finds that it
is not necessary to examine the same issue under Article 13 (Art. 13)
of the Convention.
Conclusion
32 The Commission concludes, unanimously, that it is not necessary
to examine the applicant's complaint under Article 13 (Art. 13) of
the Convention.
Recapitulation
33 The Commission concludes, unanimously, that in this case there
has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission concludes, unanimously, that it is not necessary
to examine the applicant's complaint under Article 13 (Art. 13) of
the Convention.
Secretary to President of
the First Chamber the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)