Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 15264/89

by Nicholas PHILIS

against Greece

The European Commission of Human Rights sitting in private

on 5 November 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy Secretary to the Commission

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 Greece 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 applicant may be

summarised as follows:

The applicant is a Greek citizen born in 1937. Three previous

applications by the same applicnant have been declared partly

admissible and are now pending before the European Court of Human

Rights (Nos. 12750/87, 13780/88 and 14003/88). A further application

(No. 14712/89) has been declared inadmissible.

The present application refers to criminal proceedings

instituted against the applicant on 20 September 1985 for delivery of

a cheque without funds.

On 26 November 1986 the Criminal Court of Athens (Monomeles

Plimmeleiodikeio Athinon ) held a hearing on the case and examined 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 to a fine of 10,300 Dr. The judgment was read in the

presence of the applicant in open court 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 decision

of the Athens Court had not been registered 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 decision.

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 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. The applicant also complained that the Court of

Athens did not examine any witnesses against him and that it failed to deal

with his arguments based on Articles 6 para. 1 and 14 of the Convention and

Article 1 of Protocol No. 1, which he had developed during the hearing on

26 November 1986. 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 decision of the Athens Court. 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 declared the

appeal inadmissible as out of time.

On 24 June 1988 the applicant introduced with the Commission

Application No. 14003/88 in which he complained inter alia of

unfairness of the above proceedings. He submitted that the Court of

Athens had not examined any witness against him and that he was not

enabled to appeal in time to the Court of Cassation due to the delayed

registration and notification of the decision of the Court of Athens.

The Commission rejected the above complaint in its partial

decision of 9 May 1989 on the admissibility of Application No.

14003/88. The Commission observed that according to the deposited

judgment of the Court of Athens the reasons for the decision were

given when the court delivered its judgment in open court and in the

applicant's presence. It found that the applicant had not shown that

he was not aware of the reasons of his conviction until reception of

the text of the judgment and that he had not shown that he was

prevented from lodging his appeal in time. The Commission declared

the applicant's complaint inadmissible for non-exhaustion of domestic

remedies in accordance with Article 27 para. 3 of the Convention.

COMPLAINTS

1. The applicant now complains of the proceedings before the

Court of Athens and of the conduct of the Prosecutor of the Court of

Cassation. Invoking Articles 6, 13 and 17 of the Convention, he

submits that he was denied access to the Court of Cassation, that the

principle of "equality of arms" was infringed to his detriment and

that the judicial authorities' activities aimed at the destruction of

his rights.

The applicant submits that these are new complaints different

from those already lodged with the Commission in Application No.

14003/88.

2. The applicant further alleges that the Court of Athens did not

give the reasons for his conviction when it delivered its judgment in

open court. Furthermore, he complains of the judgment of the Court of

Cassation. He submits that this court failed to deal with his arguments

concerning the admissibility of his appeal. He invokes Articles 6 and

13 of the Convention.

3. The applicant also invokes Article 14 of the Convention and

Article 1 of Protocol No. 1 and alleges that in the context of the

above proceedings these provisions have been violated to his

detriment.

4. Finally, the applicant complains of the length of the criminal

proceedings referred to in this application.

THE LAW

1. The applicant complains of unfairness of the proceedings

before the Court of Athens and of the conduct of the Prosecutor of the

Court of Cassation, invoking Articles 6 (Art. 6), 13 (Art. 13)

and 17 (Art. 17) of the Convention.

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

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

which is substantially the same as a matter which has already been

examined by the Commission and contains no relevant new information.

It finds that the above complaints are substantially the same as the

complaints rejected in Application No. 14003/88. Moreover, the mere

fact that the applicant now invokes Articles 13 (Art. 13) and 17

(Art. 17) of the Convention in relation to the facts complained of

earlier does not alter the substance of the complaints.

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 also complains that the Court of Athens did not

give the reasons for his conviction when it delivered its judgment in

open court and that the Court of Cassation rejected without any

reasoning his arguments concerning the admissibility of his cassation

appeal. In this respect he invokes Articles 6 (Art. 6) and 13

(Art. 13) of the Convention.

However, even assuming that the applicant has complied with

the requirement of the exhaustion of domestic remedies under Article

26 (Art. 26) of the Convention, the Commission finds nothing to support

the applicant's allegation that the Court of Athens did not give the

reasons for his conviction in open court. On the contrary, it is

expressly stated in the minutes of the proceedings and in the written

judgment of this court that the reasons of the decision were then

given.

In addition, the Commission finds nothing to support the

applicant's allegation that the judgment of the Court of Cassation is

not sufficiently reasoned.

This part of the application is therefore manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

3. The applicant also alleges that in the context of the above

proceedings Articles 14 (Art. 14) of the Convention and 1 of

Protocol No. 1 (P1-1) have been infringed to his detriment.

However, the examination of the case does not disclose any

appearance of a violation of the provisions invoked. Therefore, this

complaint is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

4. The applicant finally complains of the length of the criminal

proceedings, invoking Articles 6 (Art. 6) and 13 (Art. 13) of the

Convention.

The Commission considers that this part of the application

cannot be determined without the benefit of the observations of the

parties and finds that the examination of this complaint should be

adjourned.

For these reasons, the Commission unanimously

ADJOURNS the examination of the applicant's complaint

concerning the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

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PHILIS v. GREECE

PHILIS v. GREECE