Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35973/97

by Fabio BEVILACQUA

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 January 1997

by Fabio BEVILACQUA against Greece and registered on 7 May 1997 under

file No. 35973/97;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

1 December 1997 and the observations in reply submitted by the

applicant on 10 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national born in 1947. He is a

marketing consultant and resides in Ancona.

The facts of the case, as they have been submitted by the

parties, can be summarised as follows:

A. Particular circumstances of the case

On 12 August 1993 the applicant bought a house with a plot of

land on the island of Paxos in Greece. However, part of this plot of

land is claimed by a local family.

On 7 January 1994 the public prosecutor (isangeleas) of Corfu

ordered the Paxos police to examine the applicant's complaints against

Mr. L.B. and Mr. K.B., members of the family in question.

On 5 May 1994 the applicant lodged with the public prosecutor of

Corfu a criminal complaint against L.B. and K.B for having illegally

entered his property, threatened and assaulted him and occupied part

of his land. He stated that he wished to join the proceedings as partie

civile (politikos enagon) and requested 500,000 drachmas by way of

pecuniary and non-pecuniary damages.

On 25 May 1994 the applicant contacted the Greek Embassy in Rome

to inquire about the state of the proceedings. On 7 June 1994 the

Embassy forwarded the applicant's request for information to the

Ministry of Foreign Affairs, which apparently contacted the Ministry

of Justice. On 11 July 1994 the Ministry of Justice requested

information from the public prosecutor of Corfu who replied on

27 March 1995 that criminal proceedings had been instituted and that

there would be a hearing before the single-member first instance

criminal court (monomeles plimmeliodikio) of Paxos on

27 September 1995.

The hearing of 27 September 1995 was adjourned until 26 June 1996

because the accused's counsel could not appear. The hearing of

26 June 1996 was also adjourned at the accused's request. A new hearing

was fixed for 24 September 1997 which the applicant was summoned to

attend as a witness. That hearing was also adjourned because the

applicant and another witness were not present.

The case was finally heard on 27 September 1997 when the accused

were acquitted. The Government claim that the applicant was not present

at that hearing, while the applicant claims that he was.

B. Relevant domestic law

Article 68 of the Code of Criminal Procedure provides as follows:

"1. Persons who have the right to take part in the proceedings

as parties civiles can pursue their claims for damages before the

criminal court ... if they serve a writ on the accused according

to the rules of civil procedure ...

2. Persons who have the right under the Civil Code to receive

compensation for moral damage can submit their claim to the

criminal court before the taking of evidence begins even if they

have not previously served a writ".

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

of the length of the proceedings.

2. He also complains under Articles 5 and 8 of the Convention and

Article 1 of Protocol No. 1 of the failure of the Greek authorities to

protect his interests.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 January 1997 and registered

on 7 May 1997.

On 10 September 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

1 December 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 10 February 1998.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the proceedings.

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

relevant, provides as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a ...

hearing within a reasonable time by a ... tribunal established

by law."

The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention does not apply to the proceedings in question. Although the

applicant declared that he wished to join the proceedings as partie

civile, he never served his claim on the accused, as he was required

to do under Article 68 para. 1 of the Code of Criminal Procedure. As

a result, the criminal court could not examine his civil claim.

Moreover, despite the accused's acquittal, the applicant remained free

to re-introduce his claim before the civil courts.

The applicant submits that the proceedings were "civil" in

character, since the reason why the court acquitted the accused was

that it considered that they were right in claiming part of the

applicant's plot of land.

The Commission notes that under with Article 68 para. 1 of the

Code of Criminal Procedure persons who have lodged a criminal complaint

become parties civiles after they have served their claims on the

accused in accordance with the relevant civil procedure rules. The

Government claim that the applicant never did that and the applicant

does not appear to dispute this fact. Moreover, the Commission notes

that, although the applicant claims that he was present at the hearing

of 27 September 1997, there is no indication that he submitted his

civil claim before the taking of evidence began. In these

circumstances, the Commission considers that the criminal court never

acquired the competence to pronounce on the applicant's civil claim.

As a result, the proceedings did not involve a determination of the

applicant's civil rights and obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (cf., mutatis mutandis,

Eur. Court HR, Hamer v. France judgment of 7 August 1996, Reports

1996-III, no. 13, p. 1044, para. 78). Neither did they involve a

criminal charge against the applicant.

In the light of all the above, the Commission considers that

Article 6 para. 1 (Art. 6-1) is not applicable to the proceedings in

question. This part of the application is, therefore, incompatible

ratione materiae with the provisions of the Convention and must be

rejected under Article 27 para. 2 (Art. 27-2).

2. The applicant also complains under Articles 5 and 8 (Art. 5, 8)

of the Convention and Article 1 of Protocol No. 1 (P1-1) of the failure

of the Greek authorities to protect his interests. The applicant claims

that he cannot obtain redress from the Greek legal system.

The Government submit that the applicant could have used a series

of other remedies put at his disposal by the Greek legal order to

protect his interests against L.B. and K.B.

The Commission considers that it should limit its examination to

the criminal proceedings instituted at the applicant's initiative

against L.B. and K.B.

In this connection, the Commission recalls that, in accordance

with its case-law, the term "liberty and security of person" in

Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole

and, in view of its context, as referring only to physical liberty and

security. "Liberty of person" thus means freedom from arrest and

detention and "security of a person" the protection against arbitrary

interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76,

Yearbook 20, p. 102). The applicant has not been deprived of his

liberty. As a result, no appearance of a violation of Article 5 para. 1

(Art. 5-1) is disclosed.

Moreover, the Commission notes that, even assuming that

Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1

(P1-1) require a system of criminal protection of private property

against interferences similar to those complained of by the applicant,

the Greek legal order provided for the possibility of lodging a

criminal complaint. The applicant used this possibility. Although the

proceedings resulted in the accused persons' acquittal, this cannot

involve in itself a violation of the above-mentioned provisions of the

Convention and of Protocol No. 1, which do not guarantee a particular

outcome. Neither has the applicant submitted anything which could lead

to a different conclusion in the particular circumstances of the case.

As a result, no appearance of a violation of Article 8 (Art. 8) of the

Convention or Article 1 of Protocol No. 1 (P1-1) is disclosed.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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BEVILACQUA v. GREECE

BEVILACQUA v. GREECE

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