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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 16598/90

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). . . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 16 - 27). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 16). . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 17). . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. The alleged violation of Article 6 para. 1

of the Convention

(paras. 18 - 26). . . . . . . . . . . . . . . . . . . . . . . 4

Conclusion

(para. 27). . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPENDIX I: Partial Decision on the admissibility

of the application . . . . . . . . . . . . . . . . 6

APPENDIX II: Final Decision on the admissibility

of the application . . . . . . . . . . . . . . . .11

I. INTRODUCTION

1 The present Report concerns Application No. 16598/90 by

Nicholas Philis against Greece, introduced on 6 April 1990 and

registered on 16 May 1990.

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 (**miko Symboulio ton *ratos).

4 On 11 December 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

13 May 1991.

7 On 1 July 1992 the Commission (First Chamber) declared admissible

the applicant's remaining complaint concerning the length of the

proceedings. This final decision on admissibility is also appended to

this report (Appendix II). The Government have submitted further

observations on the merits of the complaint declared admissible on

11 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 30 July 1985 the Agricultural Bank of Greece transferred to

the applicant's account in the National Bank of Greece an amount of

351,000 Dr representing a part of the fee for design projects executed

by the applicant. On 8 August 1985 the applicant issued a cheque for

100,000 Dr payable to himself, which the National Bank refused to pay,

since the amount transferred to the applicant's account was credited

only on 14 August 1985. The bank informed the Athens Prosecutor who

charged the applicant with issuing a cheque without funds.

12 The case was brought before the First Instance Court of Athens

(**n*meles Plimmeliodikei*). The hearing of the case was adjourned on

two occasions, namely on 12 January 1986 and 19 December 1986, because

of the absence of the representative of the bank. The court held a

hearing on 16 January 1987 in the applicant's absence. It found the

applicant guilty and sentenced him to 5 months' imprisonment and a fine

of 50,000 Dr.

13 On 19 January 1987 the applicant appealed to the Criminal Court

of Athens (*rimeles Plimmeleiodikei*).

14 A hearing was held on 18 April 1989. The court heard the

applicant but rejected his request to examine witnesses against him.

The court reduced the penalty to 20 days' imprisonment convertible into

a fine of 19,440 Dr. The judgment was read in open court in the

applicant's presence on the same date.

15 On 5 May 1989 the applicant appealed to the Court of Cassation

(*reios Pagos). At the hearing held before that court on

13 February 1990 the applicant presented his case himself, although

under Article 513 para. 3 of the Code of Criminal Procedure he should

have been represented by a lawyer. The applicant invoked

Article 6 para. 3 (c) of the Convention, submitting that according to

this provision he had the right to defend himself in person. On

13 March 1990 the Court of Cassation gave its judgment by which the

applicant's appeal was declared inadmissible because he was not duly

represented before that court.

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. Point at issue

17 The point at issue in the present case is whether the length of

the proceedings complained of exceeded the "reasonable time" referred

to in Article 6 para. 1 (Art. 6-1) 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 in August 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 13 March 1990, when the Court of Cassation delivered its

judgment on the applicant's appeal. Consequently, the proceedings

complained of lasted 4 years and 6 months, of which more than 4 years

after the Greek declaration under Article 25 (Art. 25) of the

Convention.

22 The Commission finds that the proceedings were not of such a

complexity as to justify such an overall duration. The applicant

submits that the length of the proceedings is due to the attitude of

the judicial authorities while the Government contend that no delays

due to that conduct can be found.

23 The Government submit, in particular, that the postponements of

the hearing in the applicant's case before the First Instance Court

were due to the absence of an essential witness. Moreover, the

applicant did not protest against these postponements. As regards the

appeal proceedings, the Government submit that the delays were

essentially due to the workload of the Athens Criminal Court. They note

that a change in the court's working hours caused a temporary overload

of that court's list at that period. However, measures have been taken

in order to permit the judiciary to deal effectively with this

workload. Finally, the proceedings before the Court of Cassation lasted

about ten months, a period which is not unreasonably long.

24 The Commission observes that when the examination of the

applicant's case was adjourned by the First Instance Court on

12 January 1986, a new hearing was fixed on 19 December 1986, i.e.

11 months later. It further notes that the appeal proceedings took

place 2 years and 3 months after the filing of the appeal. The

Commission finds that the above periods of inactivity are imputable to

the judicial authorities.

25 As regards the case-load of the domestic courts, the Commission

recalls 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).

26 In the light of the criteria established by 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

27 The Commission concludes, unanimously, that there has been a

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

Secretary to President of

the First Chamber the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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PHILIS v. GREECE

PHILIS v. GREECE

LEXI