Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28523/95

by Philip PORTINGTON

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

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 11 May 1995 by

Philip PORTINGTON against Greece and registered on 12 September 1995

under file No. 28523/95;

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

of Procedure of the Commission;

Having regard to:

- the observations submitted by the respondent Government on

20 April 1996 and the observations in reply submitted by the

applicant on 26 July 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen. He was born in 1950 and is

currently detained in Alikarnassos prison in Greece. He is represented

by Mr. Andrew McCooey, a solicitor practising in London.

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

parties, may be summarised as follows.

In 1986, on a date which has not been specified, while the

applicant was crossing the frontier into Greece, he was arrested and

charged with murder. The murder was allegedly committed by the

applicant, in July 1985, on a previous visit to Greece.

The applicant was remanded in custody by the magistrates of

Kastoria on a date which has not been specified. On 28 February 1986

he was committed to trial by the Indictments Chamber of the First

Instance Criminal Court (Simvulio Plimmelidikion) of Kastoria. His

appeal was rejected by the Indictments Chamber of the Court of Appeal

(Simvulio Efeton) of Thessaloniki on 27 November 1987.

On 17 February 1988, after a hearing which lasted one day, the

Criminal Court of Thessaloniki composed of jurors and professional

judges (Mikto Orkoto Dikastirio) convicted the applicant to murder and

sentenced him to death. The applicant appealed.

On 6 October 1989 the applicant's appeal came for hearing before

the Criminal Court of Appeal of Thessaloniki composed of jurors and

professional judges (Mikto Orkoto Efetio). The applicant was

represented by legal aid counsel, Mr H. Nine prosecution witnesses were

not present. The defence asked for an adjournment on the ground that,

while none of the witnesses present had first-hand information about

the murder, there was a person in England who knew the case and who

should be called to testify. The prosecutor did not agree. The court,

by majority, decided to adjourn sine die the case on the ground that

it was necessary to hear the testimony of the nine prosecution

witnesses who were not present.

The applicant's appeal came for hearing again on 19 April 1991.

The applicant asked for the adjournment of the case on the ground that

a certain lawyer, Mr G, who had taken over his case a year before was

not present at court. Mr H, who was present, stated that he was

prepared to defend the applicant. The prosecutor considered that the

case should be heard on that day. He had not been able to speak with

Mr G on the phone, but the collaborators of Mr G had told him that they

knew nothing about the case of the applicant. The court decided to

adjourn sine die to enable the applicant to be represented by Mr G.

On 8 February 1993 the applicant appeared again before the appeal

court, being represented by another counsel, Mr S. The defence asked

for an adjournment on the basis that six prosecution witnesses were

absent. The prosecution agreed and the court adjourned sine die.

Between 27 May 1993 and 31 December 1993, 16 February 1994 and

17 February 1994, 7 March 1994 and 11 March 1994, 16 March 1994 and

18 March 1994, 21 March 1994 and 13 May 1994 and 16 May 1994 and

30 June 1994 the lawyers were on strike.

A new hearing for the applicant's appeal was fixed for

5 December 1994. The applicant asked for an adjournment on the ground

that he wanted to be represented by a certain lawyer whom the British

Embassy had found for him and whom he did not name. The prosecutor

agreed and the court adjourned sine die.

The applicant's appeal was finally heard on 12 February 1996. The

appeal court upheld his conviction but commuted his sentence to life

imprisonment. The applicant appealed in cassation.

COMPLAINT

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

of the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 May 1995 and registered on

12 September 1995.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

20 April 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 26 July 1996, also after an extension

of the time-limit.

THE LAW

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 any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time"

...

The Government submit that the applicant does not complain about

the length of the proceedings until his first instance conviction. In

any event, they submit that in that stage of the proceedings there were

no delays, since the trial hearing was held two and a half months after

his committal. His appeal came for hearing for the first time one and

a half year after his conviction. This is the normal waiting period in

the Criminal Court of Appeal of Thessaloniki, a court with a very wide

geographical jurisdiction.

The Government further submit that the applicant was responsible

for all the adjournments of the hearing of his appeal. Each time the

hearing of the appeal was adjourned, a number of procedural steps had

to repeated and the witnesses had to be summoned afresh. Moreover, the

court administration had been trying to locate an unnamed witnesses in

the United Kingdom. Moreover, the lawyers went on strike on several

occasions between 8 February 1993 and 5 December 1994. In any event,

the applicant suffered no actual prejudice because of the length of the

proceeding, since his conviction was upheld. Death sentences are never

executed in Greece.

The applicant submits that, notwithstanding the tactics of the

defence, the court authorities had a duty to make sure that his appeal

be heard within a reasonable time.

In the light of all the above and the criteria established in the

case-law of the organs of the Convention concerning "reasonable time"

(complexity of the case, conduct of the parties and the conduct of the

authorities dealing with the case), the Commission considers that the

complaint concerning the length of the proceedings raises serious

issues of fact and law which cannot be resolved at the present stage

of the examination of the application, but calls for an examination of

the merits.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PORTINGTON v. GREECE

PORTINGTON v. GREECE

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