Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15264/89

by Nicholas PHILIS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 7 July 1992, 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

Mr. M. de SALVIA, Secretary to the First 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 20 June 1989 by

Nicholas PHILIS against the Netherlands and registered on 20 July 1989

under file No. 15264/89;

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 facts of the case as submitted by the parties may be

summarised as follows:

The applicant is a Greek citizen born in 1937. He is engineer

and resides in Athens.

On 20 September 1985 criminal proceedings were instituted against

the applicant for issuing a cheque without funds.

On 26 November 1986 the First Instance Court of Athens (Monomeles

Plimmeliodikeio) held a hearing on the case and heard a witness on the

applicant's behalf and the applicant himself. The court found the

applicant guilty and sentenced him to fifteen days' imprisonment

convertible into a fine of 10,300 Dr. The judgment was read out in

open court in the presence of the applicant on the same date.

According to the written judgment the reasons for the applicant's

conviction were then given.

On 14 December 1987 and 26 January 1988 the applicant complained

to the Prosecutor of the Court of Cassation (Areios Pagos) that the

judgment of the Athens Court had not been registered (by inscribing a

fair copy in a book provided for the purpose) in the court's registry

within the 15-day time-limit provided by Article 473 para. 3 of the

Code of Criminal Procedure. He did not receive any reply.

On 29 March 1988 the applicant received the text of the judgment.

On the front page it was indicated that the decision had been signed

and registered on 10 February 1988.

On 15 April 1988 the applicant appealed to the Court of

Cassation. He submitted that the First Instance Court of Athens had

failed to examine whether the bank's refusal to pay the cheque was

justified, i.e. whether the cheque was actually without cover, and

contended that his fraudulent intent was not proven. As to the

admissibility of his appeal the applicant submitted that the running

of the 20-day appeal time-limit began on 29 March 1988, when he

received the judgment. He also contended that the registration was

irregular.

In its decision of 10 February 1989 the Court of Cassation found

that the appeal time-limit began at the latest on 10 February 1988 when

the decision was signed and registered. Consequently the Court of

Cassation declared the appeal inadmissible for having been introduced

out of time.

COMPLAINTS

The applicant complains of the length of the proceedings referred

to in the application. He invokes Articles 6 para. 1 and 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 June 1989 and registered on

20 July 1989.

On 5 November 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 the proceedings. The

Commission declared inadmissible the remainder of the application.

On 8 April 1991 the Commission referred the application to the

First Chamber.

The Government submitted their observations on 11 April 1991. The

applicant's observations in reply were contained in his letter of 10

May 1991.

THE LAW

The applicant complains of the length of the proceedings

concerning the charges against him for issuing a cheque without funds.

He invokes Article 6 para. 1 (Art. 6-1) of the Convention which in so

far as relevant reads as follows:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a ... hearing within

a reasonable time ... "

The Commission notes that the proceedings complained of began on

20 September 1985 and ended on 10 February 1989. Their total length

is 3 years, 4 months and 20 days. The period the Commission is

competent to examine began however on 20 November 1985, when

recognition by Greece of the right of individual petition took effect

according to the declaration by Greece under Article 25 (Art. 25) of

the Convention.

It further notes that the parties focus on the period between

26 November 1986 and 10 February 1988, i.e. the 14 months' period which

was needed for the "registration" of the First Instance Court judgment.

The Government submit that the proceedings were not lengthy and

argue that the delay in the "registration" of the first instance

judgment were due to the applicant's attitude who has not asked for

such "registration" at an earlier stage. Such a request was necessary

having regard to the heavy workload of the Athens First Instance Court.

The applicant submits that he has in vain requested on several

occasions that the judgment be registered. He complains that due to

the excessive delays for the registration he has been hindered in

lodging in time an appeal with the Court of Cassation.

The Commission considers that the question as to whether the

length of the proceedings in this case exceeded the reasonable time

prescribed by Article 6 para. 1 (Art. 6-1) of the Convention raises

serious issues of fact and law which cannot be resolved at this stage

of the proceedings, but require a thorough examination of the merits

of the case.

The Commission further notes that there are no other grounds of

inadmissibility in respect of this complaint.

For these reasons, the Commission by a majority

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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PHILIS v. GREECE

PHILIS v. GREECE