Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19773/92

by Nicholas PHILIS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 24 May 1995, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 15 January 1992

by Mr Nicholas PHILIS against Greece and registered on 27 March 1992

under file No. 19773/92.

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

19 December 1994 and the observations in reply submitted by the

applicant on 31 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen born in 1937 and residing in

Athens. He is a civil engineer by profession.

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

parties, may be summarised as follows.

I. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT FOR INSULTING JUDICIAL

AUTHORITIES

In the course of proceedings he had instituted against certain

officials of the Autonomous Organisation for Labour Housing (Aftonomos

Organismos Ergatikis Katikias - hereafter OEK) the applicant addressed

on 14 April 1986 a letter to the Indictments Chamber of the Court of

Appeal (Simvoulio Efeton) of Athens in which he claimed that "the

proceedings followed by the competent authorities in his various legal

actions leave no doubt as to the existence of bias in favour of OEK

officials and that the clear purpose of the delay in the proceedings

was to ensure that the crimes would be prescribed".

On 25 April 1986 the Public Prosecutor of the Court of Appeal

(Isangeleas Efeton) of Athens transmitted the letter to the Public

Prosecutor of the First Instance Criminal Court (Isangeleas

Plimeliodikon) of Athens considering that the applicant should be

charged with insulting the judicial authorities. On 30 April 1986 the

Public Prosecutor of the First Instance Criminal Court ordered a

preliminary inquiry into the affair.

On 9 October 1986 the applicant appeared before the investigating

judge. He denied the charges and informed the judge of his intention

to lodge a memorial until 15 October 1986. In the memorial he submitted

on 14 October 1986 the applicant requested the examination of a number

of witnesses. Four witnesses were examined between 10 November 1986 and

20 November 1986. On 20 January 1987 the investigating judge

transmitted the case-file to the Public Prosecutor.

On 20 March 1987 the Public Prosecutor instructed the

investigating judge to complete the case-file by ordering the applicant

to submit a number of court decisions mentioned in his memorial of 14

October 1986. On 11 June 1987 the applicant submitted these decisions

together with another memorial. On 12 June 1987 the investigating judge

transmitted these documents to the Public Prosecutor.

On 5 October 1987 the Public Prosecutor charged the applicant

with insulting the judicial authorities and fixed a hearing before the

three-member First Instance Criminal Court (Trimeles Plimeliodikio) of

Athens for 12 October 1988. On 13 September 1988 a summons was served

on the applicant ordering him to appear before the first instance court

on 12 October 1988. On 22 September 1988 the applicant appealed against

this order asking for his case to be heard by an indictments chamber.

On 30 September 1988 the Public Prosecutor of the Athens Court of

Appeal rejected the appeal.

On 12 October 1988 the First Instance Criminal Court of Athens

found the applicant guilty and sentenced him to five months'

imprisonment, a penalty which was immediately converted to a fine of

400 GRD per day. The applicant appealed immediately.

On 5 November 1990 the Court of Appeal (Efetio) of Athens

postponed the hearing of the applicant's appeal. On 25 October 1991 the

Court of Appeal allowed the applicant's appeal and pronounced his

innocence.

The decision of the court and the record of the hearing were

"finalized" (katharographi) on 19 November 1991. They were delivered

to the applicant on 28 November 1991. On 9 December 1991 the applicant

lodged an application with the Court of Appeal requesting the

correction and completion of the record and the decision of the court.

On 15 April 1992 the Court rejected the applicant's request as

inadmissible on the ground that it had not been submitted within twenty

days from the pronouncement of the judgment, i.e. from 25 October 1991.

IV. DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT

On 2 August 1982 the OEK complained to the Technical Chamber of

Greece (Tehniko Epimelitirio Ellados - hereafter TEE) of the various

proceedings the applicant had introduced against the OEK and engineers

working for it. Acting on this complaint the President of the

Disciplinary Council of the TEE instituted disciplinary proceedings

against the applicant for improper behaviour. On 14 November 1983 the

charges were drawn and a Rapporteur was designated. On 9 March 1984 the

Disciplinary Council decided to adjourn the examination of the case,

because the President of the OEK, who had been called to testify, did

not appear. On 20 November 1984 the Disciplinary Council suspended the

applicant from practising his profession for a period of ten months.

The applicant was notified of the decision by letter of the TEE

dated 7 June 1985. On 21 June 1985 the applicant appealed to the

Highest Disciplinary Council of the TEE. On 14 April and 18 May 1992

the applicant wrote to the TEE requesting information on to the outcome

of his appeal. On 22 May 1992 the TEE replied that the applicant's

appeal was under review by one of the members of the Highest

Disciplinary Council of the TEE acting as rapporteur and that his

appeal would be heard upon submission of the latter's report.

By letter of 17 February 1993 the applicant was invited to attend

the hearing of 10 March 1993 of the Highest Disciplinary Council of the

TEE. On 5 March 1993 the applicant challenged all the members of the

council and asked for the Article 6 guarantees to be respected at the

hearing.

On 10 March 1993 the Council rejected the applicant's request of

5 March 1993. It allowed, however, his appeal and pronounced his

innocence.

On 2 April 1993 the applicant requested the correction of the

decision of 10 March 1993. On 26 April 1993 the Highest Disciplinary

Council of the TEE addressed a letter to the applicant answering the

points raised in his request of April 1993. The decision, however, was

not corrected.

COMPLAINTS

1. The applicant complains under Article 6 of the length of the

criminal proceedings against him for insulting the judicial

authorities.

2. The applicant also complains under Article 6 of the Convention

of the length of the disciplinary proceedings against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 January 1992 and registered

on 27 March 1992.

On 31 August 1994 the Commission invited the Government to submit

written observations on the admissibility and merits of the applicant's

complaints regarding the length of the criminal and disciplinary

proceedings against him, pursuant to Rule 48 para. 2 (b) of the Rules

of Procedure. The Commission declared inadmissible the remainder of the

application.

The Government's written observations were submitted on

19 December 1994 after an extension of the time-limit fixed for that

purpose. The applicant replied on 31 January 1995.

THE LAW

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

of the criminal proceedings against him for insulting the judicial

authorities.

The Commission recalls that Article 6 (Art. 6) of the Convention

provides as follows:

"In the determination of .... any criminal charge against him,

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

by a ..... tribunal .... ."

The Government submit that there were no significant delays at

the pre-trial stage of the proceedings against the applicant. Although

the Court of Appeal pronounced its judgment three years after the first

instance judgment, the Government argue that this cannot amount to a

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

workload of the Court of Appeal is very heavy and the case of the

applicant could not have been given priority given its nature and the

fact that the applicant was not detained.

The applicant submits that the period to be taken into

consideration began on 25 April 1986 and that the criminal charges

against him have not yet been determined, because the Court of Appeal

unlawfully refused to correct its judgment of 25 October 1991. The

applicant argues that the case against him was simple, that he did not

contribute in any manner whatsoever to the delays and that the

authorities were entirely responsible for the inordinate length of the

proceedings. In the course of the two years and five months that

elapsed between the moment when he was charged and the first instance

hearing nothing but purely routine acts were performed, the completion

of the case-file ordered on 20 March 1987 was unnecessary and a period

of total inactivity of three years intervened between the first

instance and appeal judgments. Domestic procedural rules providing for

the finalisation of judgments within eight days were not respected and

a further period of total inactivity of over six months intervened

before his application for the correction of the judgment of

25 October 1991 was rejected. The applicant finally argues that the

proceedings against him should have been concluded more expeditiously

given the importance of what was at stake, namely his right to freedom

of expression and access to the courts.

In the light of the parties' observations, the Commission

considers that the application raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. The application cannot, therefore, be

regarded as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention, and no other ground for

declaring it inadmissible has been established.

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

Convention of the length of the disciplinary proceedings against him.

The Commission recalls that Article 6 (Art. 6) of the Convention

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 .... ."

The Government submit that Article 6 (Art. 6) of the Convention

is not applicable in the present case. The disciplinary organs of the

TEE cannot be considered to be tribunals within the meaning of Article

6 (Art. 6), because of the manner in which they are constituted and the

lack of publicity of the proceedings. The applicant never risked being

suspended from exercising his profession, because the first instance

penalty could not be executed pending his appeal, which led eventually

to his acquittal. As regards the substance of the complaint, the

Government rely on the terms of the declaration of Greece under Article

25 (Art. 25) of the Convention and submit that the Commission has to

limit its examination to events which occurred after 19 November 1985.

The applicant's appeal was lodged in June 1985 and its examination was

delayed to allow for the conclusion of the various other court

proceedings between the applicant and the OEK. The applicant never

sought to expedite the hearing of his appeal. In the light of all the

above the Government conclude that the proceedings were reasonable in

length.

The applicant argues that the proceedings in question involved

a determination of his civil rights. He further submits that, although

the period to be taken into consideration began on 20 November 1985,

the Commission should take account of the stage which the proceedings

had reached on that date. He also argues that his civil rights have not

yet been determined because of the failure of the Higher Disciplinary

Council to correct its decision. In the applicant's opinion, the case

was simple, he did not contribute in any manner whatsoever to the

delays and the authorities were entirely responsible for the inordinate

length of the proceedings, having allowed the proceedings to stagnate

for a period of nearly eight years between the filing of his appeal and

the appeal hearing. The applicant finally argues that the proceedings

against him should have been concluded more expeditiously given the

importance of what was at stake, namely his right of access to the

courts.

In the light of the parties' observations, the Commission

considers that the application raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits.

The application cannot, therefore, be regarded as being

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

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE.

Secretary Acting President

to the First Chamber of the First Chamber

(M.F. BUQUICCHIO) (J. LIDDY)

Menu

PHILIS v. GREECE

PHILIS v. GREECE

LEXI