Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30478/96

by Stavros GREGORIADES

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 17 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

A. WEITZEL

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 22 January 1996

by Stavros GREGORIADES against Greece and registered on 18 March 1996

under file No. 30478/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen born in 1936 in Cyprus where he

is currently residing. He is a doctor.

The facts, as they have been submitted by the applicant, may be

summarised as follows:

I. PROCEEDINGS INSTITUTED FURTHER TO CRIMINAL COMPLAINTS LODGED BY

THE APPLICANT

On 6 December 1993 the indictments chamber of the First Instance

Criminal Court (simvulio plimmeliodikon) of Athens decided not to

commit for trial ten members of the administration of a public hospital

and two police officers against whom criminal proceedings had been

instituted further to a complaint lodged by the applicant accusing them

of crimes committed in the exercise of their duties. The applicant

appealed.

On 8 February 1994 the indictments chamber of the First Instance

Criminal Court of Athens decided not to commit for trial two employees

of the Ministry of Health against whom criminal proceedings had been

instituted further to a complaint lodged by the applicant accusing them

of breach of duty. The applicant appealed.

Both the applicant's appeals were rejected by the indictments

chamber of the Court of Appeal (simvulio efeton) of Athens as

inadmissible for lack of locus standi on 17 March 1994 and

23 March 1994 respectively.

On 27 May 1994 the applicant lodged an application with the

Commission complaining, inter alia, under Articles 6 and 13 of the

Convention that he had not been given the chance to appear in person

before the indictments chambers which had dismissed the proceedings

which had been instituted further to his complaints. The application

was registered on 25 November 1994 under file No. 25784/94 and was

rejected by the Commission, sitting as a Committee by virtue of

Article 20 para. 3 of the Convention, on 6 April 1995.

II. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

a. Particular circumstances of the case

On 5 September 1994 the public prosecutor of the First Instance

Criminal Court (isangeleas plimmeliodikon) of Athens committed the

applicant for trial before the three-member First Instance Criminal

Court (trimeles plimmeliodikio) of Athens for a series of offences,

including perjury, which the applicant had allegedly committed in his

attempt to have criminal proceedings instituted against various

persons. A hearing was fixed for 14 April 1995. The summons were served

on 13 October 1994 at the address the applicant had indicated to the

authorities at the beginning of the proceedings.

On 20 October 1994 the applicant appealed to the public

prosecutor of the Court of Appeal (isangeleas efeton) of Athens against

the decision committing him for trial, informed the authorities that

his address had been changed and named a lawyer, Mr. D, as the person

who should receive all documents on his behalf (antiklitos).

On 26 October 1994 the applicant claims to have left Greece for

Cyprus.

On 14 November 1994 the public prosecutor of the Court of Appeal

allowed the applicant's appeal and sent the case to the indictments

chamber of the First Instance Criminal Court of Athens. On

15 December 1994 the indictments chamber decided to commit the

applicant for trial.

On 17 February 1995 the applicant appealed to the indictments

chamber of the Court of Appeal of Athens. His appeal was rejected as

inadmissible on 10 May 1995. The decision was served at the applicant's

old address and was forwarded to the applicant in Cyprus by his ex-

landlord.

On 25 July 1995 the applicant notified the public prosecutor of

the First Instance Criminal Court of Athens that he had moved to Cyprus

and informed him of his new address.

On 27 July 1995 the three-member First Instance Criminal Court

of Athens convicted the applicant in absentia and sentenced him to a

suspended sentence of seven months imprisonment.

The applicant claims not to have been informed of the decision

of the first instance court before 9 January 1996 when he received a

letter from a lawyer, Mrs. V, he had entrusted with inquiring about the

state of the criminal proceedings against him.

b. Relevant domestic law and practice

According to Article 273 para. 1 (c) of the Code of Criminal

Procedure, all documents related to a criminal trial must be served at

the address which the accused indicated when first appearing before the

investigating judge or the public prosecutor, unless the accused has

made a valid declaration of change of address, inter alia, when

appealing against the public prosecutor's decision committing him for

trial. According to Article 273 para. 1 (e) of the Code of Criminal

Procedure, if the accused declares that he lives abroad and is not

represented by counsel, he is obliged to name one of the lawyers of

the competent first instance criminal court as the person who will

receive all documents on his behalf (antiklitos). All documents must

be served on this lawyer and only on him.

According to Article 473 para. 1 of the Code of Criminal

Procedure, the time allowed for appeal begins to run, for persons

convicted in absentia, from the date of valid service of the judgment

convicting them. According to the case-law of the Court of Cassation,

an invalid service cannot affect the rights of the prospective

appellant (decisions Nos. 490/1967, 141/1969 and 485/1995).

COMPLAINTS

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

that the indictments chamber of the First Instance Criminal Court of

Athens did not hear him before deciding not to commit for trial the

various persons against whom he had lodged criminal complaints.

2. The applicant also complains under Article 6 para. 1 of the

Convention that he was committed for trial and found guilty by the

three-member First Instance Criminal Court of Athens without having

been heard. He claims that, although he had informed the competent

authorities of his change of address and his moving to Cyprus, the

judgment convicting him was never served on him. When he was informed

of his conviction, he could no longer appeal because the time-limit had

expired.

THE LAW

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

Convention that the indictments chamber of the First Instance Criminal

Court of Athens did not hear him before deciding on 6 December 1993 and

8 February 1994 not to commit for trial the various persons against

whom he had lodged criminal complaints.

The Commission recalls that under Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention it should not deal with any application

submitted under Article 25 (Art. 25) which is substantially the same

as a matter which it has already examined and if it contains no new

information. The Commission considers that the applicant's complaints

are essentially the same as complaints he had raised in Application No.

259874 which was declared inadmissible on 6 April 1995 and that they

contain no relevant new information. It follows that this part of the

application must be rejected pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

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

Convention that he was committed for trial and found guilty by the

three-member First Instance Criminal Court of Athens without having

been heard.

The Commission recalls that a person who has been convicted in

absentia is entitled under Article 6 para. 1 (Art. 6-1) of the

Convention to a fresh determination of the merits of the charge by a

court, unless he has unequivocally waived his right to take part in the

trial (Eur. Court H.R., Colozza v. Italy judgment of 12 February 1985,

Series A no. 89, p. 14, para. 27, and pp. 15-16, paras. 29-30).

According to Greek law, a person convicted in absentia may obtain a

fresh determination of the merits of the charge by appealing against

his conviction. The appeal must be lodged within ten days from the date

of service of the judgment.

The Commission notes that the applicant claims that he has missed

the deadline, the judgment having been apparently served at an address

other than the address he had given to the competent authorities.

However, the applicant also claims that he had duly informed the

authorities of his change of address and his moving to Cyprus and the

Commission notes that, according to the case-law of the Court of

Cassation, an invalid service does not affect the rights of the

prospective appellant.

The Commission recalls that in the case of Stamoulakatos

v. Greece it expressed certain doubts about the effectiveness of the

particular remedy on the basis that the accused bore the burden of

proving that the service was invalid (Comm. Report 20.5.92, para. 68,

Eur. Court H.R., Series A no. 271, p. 19). However, in that case the

applicant had lodged an appeal against his conviction in absentia and

his appeal had been rejected. The applicant in the present case, on the

contrary, never attempted to challenge the decision of the first

instance court, although he has produced before the Commission several

elements of proof that the competent authorities had been notified of

his change of address. In these circumstances, the Commission cannot

conclude that the applicant was precluded from obtaining a fresh

determination of the merits of the charges against him by appealing

against his first instance conviction when he was informed of the

relevant judgment.

It follows that no appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention is disclosed and that this part of the

application must be rejected as inadmissible being 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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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GREGORIADES v. GREECE

GREGORIADES v. GREECE

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