FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51308/99 by Konstantinos STOKAS against Greece

The European Court of Human Rights ( First Section) , sitting on 29 November 2001 as a Chamber composed of

Mrs F. Tulkens , President , Mr C.L. Rozakis , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 23 April 1999 and registered on 24 September 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Konstantinos Stokas , is a Greek national, born in 1951 and lives in Grevena . He is represented before the Court by Mr N.Frangakis , a lawyer practising in Athens.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 23 October 1993 a car driven by the applicant’s brother, which also carried the latter’s wife and their two children, deviated from its course, entered abruptly into the opposite circulation lane and crashed into a truck coming from the opposite direction. The collision had as a result the death of all the passengers of the car.

The site of the accident was inspected and it was found that the road surface at the collision point was slippery, due to the rain which had fallen. It was also established that the car’s speed was higher than the maximum permitted speed in that sector. An expert’s report concluded that because the load of the truck, its power and mass, it was impossible for it to maoeuvre and had caused the truck to drag the car backwards with only a small speed.

A preliminary investigation ( proanakrisi ) was initiated ex officio immediately, pursuant to Article 243 of the Code of Criminal Procedure. On 19 December 1994 the case file was sent to the First Instance Criminal Court of Kozani .

On 29 July 1994 the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons. He also notified the public prosecutor at the First Instance Criminal Court of Kozani that he wished to take part in the criminal proceedings as a civil party. He asked for 400 drachmas by way of compensation for non-pecuniary damage, expressly reserving his right to pursue the remainder of his claim before the civil courts.

On 16 October1995 the applicant brought an action before the Single-Member First Instance Civil Court ( Monomeles Protodikio ) of Kozani against the driver of the truck and the insurance companies seeking compensation for non-pecuniary damage of an amount of 26 000 000 drachmas. The examination of the case was adjourned because the criminal proceedings were pending.

The preliminary investigation lasted until November of 1995. A great number of witnesses was heard. On 18 December 1995 the file was sent to the public prosecutor at the Kozani criminal court.

On the 18 December 1995 the applicant submitted an application to the public prosecutor at the Kozani criminal court, pursuant to Article 246 § 3 of the Code of Criminal Procedure, requesting that the preliminary investigation should be complemented by a full investigation ( kyria anakrisi ). Such an order was given on 21 February 1996.

On 12 February 1997 the public prosecutor pressed charges for homicide by negligence against the driver of the truck and the representatives of the company that owned the vehicle.

On 8 June 1997 the Indictments Division of the First Instance Criminal Court ( Symvoulio Plimmeliodikon ) of Kozani decided not to bring charges against the accused. It held that the steering system and brakes of the truck were functioning satisfactorily and that the truck driver could not be accused of reckless driving but had been unable to avoid the collision because of the negligent conduct of the applicant’s brother. The latter was imprudent, was driving at an excessive speed and violated the double separation line of the road.

On 14 July 1997 the applicant filed an appeal against the above decision of the indictments division. He complained that the decision was not sufficiently reasoned and that the Indictments Division had applied the relevant legislation erroneously.

On 14 January 1998 the applicant’s appeal was dismissed by the Indictments Division of the Court of Appeal ( Symvoulio Efeton ) of Western Macedonia (decision 21/1998). The Indictments Division confirmed the first instance decision and reiterated that the collision was due to the exclusive responsibility of the applicant’s brother.

On 5 March 1998 the applicant’s civil action came for hearing before the Kozani civil court. The court heard a number of witnesses and examined the other evidence in the case.

On 4 May 1998 the applicant appealed on points of law against the decision of 14 January 1998 of the Indictments Division of the Court of Appeal.

On 8 May 1998 the civil court dismissed the applicants’ action on the merits ( judgment 211/1998). It held that the applicant’s brother was entirely responsible for the accident and that the truck’s tyres and the fact that it was overloaded had no causal link to the accident and the fatal injury of the applicant’s brother and his family.

On 6 August 1998 the Court of Cassation set aside the decision of the Indictments Division of the Court of Appeal on the ground that it did not contain sufficient reasons, in the sense that the court of appeal had only made a general reference to the evidence before it and it could not, therefore, be deduced whether it had taken it all into consideration. In order to be re-examined, the case was referred back to the Indictments Division of the Court of Appeal of Western Macedonia , sitting with a different composition.

On 8 September 1998 the Indictments Division of the Court of Appeal of Western Macedonia ruled that there was no case for the accused to answer (decision 84/1998).

On 14 September 1998 the applicant lodged an appeal with the Court of Cassation against the second decision of the Indictments Division of the Court of Appeal. He claimed that the decision did not set out with sufficient clarity the relevant circumstances and evidence on which it was based.

On 14 October 1998 the Court of Cassation upheld the appeal on the ground that the impugned decision was lacking sufficient reasoning and referred the case back to the Indictments Division of the Court of Appeal of Western Macedonia , sitting with a different composition. In particular, the Court of Cassation found that the appealed decision’s reasoning did not elaborate fully and clearly on the evidence bearing on the co-responsibility of the accused for the accident.

On 19 October 1998 the Indictments Division of the Court of Appeal decided for the third time not to press charges against the accused. It held that there were not sufficient indications pointing to the guilt of the defendant. For the third time, the Indictments Division held that the driver of the car had been driving at an excessive speed under the circumstances, as it transpired from the deposition of the driver of the car moving behind the applicant’s brother. No liability could be established for the defendant, having regard to the conclusions reached after the inspection of the site of the accident, the diagram which was drawn up. It transpired that the defendant was driving at 45 km/h, that is under the speed limit, was overloaded and circulating at the far right of his own traffic lane. The fact that the applicant’s brother’s car was dragged by the truck down the road was attributed to the slippery road and the defendant’s confusion at the time of the collision.

On 22 October 1998 the applicant appealed on points of law to the Court of Cassation .

On 26 January 1999 the Court of Cassation dismissed the appeal on the ground that the action had become statute-barred. In particular, the Court of Cassation held that the five-year period of limitation provided by the law for involuntary homicide had lapsed and thus the punishable character of the act allegedly committed by the defendant had disappeared.

B. Relevant domestic law and practice

Under Article 111 § 2 of the Criminal Code misdemeanours ( plimmelimata ), such as the offence for which the driver and the representatives of the company would have been tried, are subject to a five-year prescription period, starting from the moment the offence takes place. According to Article 113 of the Criminal Code, the investigation and interlocutory proceedings (e.g. the proceedings before the indictments chambers) does not interrupt the running of the prescription period.

COMPLAINTS

The applicant complains that his rights under Article 6 § 1 of the Convention have been breached in the criminal proceedings against the driver of the lorry and the representatives of the company.

In particular, he complains that his right to a fair hearing was violated because of the way in which the criminal proceedings were terminated. Not only were his rights as a civil party disregarded but also his prospects of success before the civil courts were compromised.

The applicant also complains of a breach of his right to a hearing within reasonable time because of the long periods of inactivity in the criminal proceedings, especially during the preliminary and full investigation.

Finally, the applicant complains that the criminal proceedings were not heard by an independent and impartial tribunal. He points out in this respect that the Indictments Division of the Court of Appeal of Western Macedonia failed to comply with the decisions of the Court of Cassation twice maintaining, in essence, the reasoning that the Court of Cassation had found inadequate

THE LAW

The applicant alleges a violation of Article 6 § 1 of the Convention, which insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

(a) The Government’s principal submission is that Article 6 § 1 is not applicable in the present case.

The Government maintain that a civil claimant does not aim, at the stage of criminal proceedings, at securing financial reparation for the damage sustained. Being a victim of the crime, he pursues the redress of the injustice, by way of conviction of the defendant. Joining criminal proceedings as a civil party has a mixed character. However, its criminal character is predominant, because its outcome depends on the conviction of the defendant and it is not necessary to indicate in the introductory act to join the proceedings the amount of compensation sought by the civil claimant. Furthermore, the civil claimant has access to the file and is entitled to lodge requests with the investigating judge and the indictments division. Last but not least, the criminal court cannot award a claim higher than 15 000 drachmas and refers it for the remainder to the civil courts.

The Government further submit that the proceedings before the criminal courts does not influence the examination of the case and the award of compensation by the civil courts. If the defendant is found guilty by the criminal court, the civil court must limit its decision to the determination of the amount of the award. If the criminal court finds the defendant non guilty, its decision does not constitute res judicata for the civil court, which is free to examine whether the incriminated act has caused a damage to the civil claimant.

The Government recalls that in the present case the applicant basically aimed at supporting the charges against the accused and their referral for trial before the criminal court. His civil claims were limited to 400 drachmas and did not represent the actual claims for non-pecuniary damage. When he joined the proceedings, he reserved his right to introduce the latter before the civil courts, as he did by his action of 16 October 1995 to the First Instance Court of Kozani , whereby he claimed 26 000 000 drachmas. The First Instance Court examined in depth the applicants claims. It held that the defendants could not be considered liable for the accident, which was entirely imputed to the applicant’s brother’s conduct. In this respect, a civil court is not bound by any decision of a criminal court which may conclude that there is no case to answer or may acquit the defendant. It follows that there was no connection whatsoever between the civil and criminal proceedings as regards the satisfaction of the applicant’s civil claims.

The applicant contends that joining the proceedings as civil party has a twofold aspect: criminal and civil. Both aspects weigh equally by virtue of the law and in practice. Compensation of the non-pecuniary damage aims at repairing the damage but also at comforting the person who sustained the damage. As the right to be comforted can be secured only via joining the criminal proceedings as civil party, the termination of these proceedings in a manner contrary to the Convention entails the suppression of this right. The reparation of the damage, although it could have been secured in the civil proceedings, became impossible due to the shortcomings of the preliminary investigation and the main investigation.

According to the principles laid down in its case-law, the Court must ascertain whether there was a dispute (“ contestation ”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and, finally, the outcome of the proceedings must be directly decisive for the right in question (see the Acquaviva v. France judgment of 21 November 1995, Series A n° 333-A, . 47).

The Court notes that on 29 July 1994 the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons. He also notified the public prosecutor at the First Instance Criminal Court of Kozani that he wished to take part in the criminal proceedings as a civil party. He asked for 400 drachmas by way of compensation for non-pecuniary damage, expressly reserving his right to pursue the remainder of his claim before the civil courts. On 16 October1995 the applicant brought an action before the Single-Member First Instance Civil Court of Kozani against the driver of the truck and the insurance companies seeking compensation for non-pecuniary damage of an amount of 26 000 000 drachmas. The examination of the case was adjourned because the criminal proceedings were pending. However, on 8 May 1998 the court dismissed the applicant’s action on the ground that no liability of the truck’s driver could be established. The court did not refer to the decisions of the criminal courts before which the proceedings were still pending.

The Court considers that the present case differs from the case of Moreira de Azevedo v. Portugal ( judgment of 23 October 1990, Series A n° 189) and the above-mentioned case of Acquaviva v. France, in which the Court had concluded to the applicability of Article 6. In the first case, the Court held that the intervention of the applicant in the criminal proceedings as assistente (and who had not submitted a formal claim for damages) was equivalent to filing a claim for compensation in civil proceedings. In the second case, the Court held that a decision in criminal proceedings to drop the charges against the defendant deprived the applicants, who had retained the right to submit a claim for damages up to and during the trial, of any right to sue for compensation.

In the present case, the Court recalls that, as regards the criminal proceedings, on two occasions the Court of Cassation found that the Indictments Division’s reasoning was inadequate and remitted the case back for reconsideration. On the third occasion it found that the action had become statute-barred.

However, these decisions left the applicant’s civil claims intact, as he had already submitted them to the civil court, which were not in any way bound by the decisions of the criminal courts. The Court is, therefore, forced to conclude that the outcome of the proceedings before the criminal courts were not decisive for the applicant’s right to compensation. Accordingly, there was no “dispute” over a “civil right” within the meaning of Article 6 of the Convention.

The Court further notes that the civil proceedings ended more than six months prior to the introduction of the application.

It follows that the application is incompatible ratione materiae with the provision of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Françoise Tulkens Registrar President