SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41354/98 by Yeoryios ARVELAKIS against Greece

The European Court of Human Rights ( Second Section ), sitting on 23 March 2000 as a Chamber composed of

Mr M. Fischbach, President , Mr C.L. Rozakis, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, Mr A. Kovler, judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 March 1998 and registered on 25 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Greek national, born in 1960. He is currently detained in Ayias prison in Canea , Crete.

He is represented before the Court by Mr I. Anagnostopoulos , a lawyer practising in Athens.

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

On 17 March 1988 the applicant was arrested for homicide. On 15 November 1988 he appeared before the first instance criminal court of Iraklio , composed of judges and jurors ( Mikto Orkoto Dikastirio Irakliu ). On 16 November 1988 he was found guilty and given a life sentence. The applicant appealed on the same day.

On 23 July 1990 there was a fire in the public prosecutor’s office and the case-file was destroyed. It was reconstituted at the end of October 1990.

On 6 December 1990 the Court of Appeal of Crete, composed of judges and jurors ( Mikto Orkoto Efetio Kritis ), adjourned the examination of his appeal until 6 June 1991 because a number of key prosecution witnesses were not present.

On 6 June 1991 the examination of the appeal was further adjourned because the applicant’s lawyer was on strike.

The appeal was heard on 9 January 1992 and the Court of Appeal upheld the applicant’s conviction and sentence. On 19 February 1992 the applicant appealed in cassation .

On 11 May 1992 the applicant’s lawyer applied for an adjournment of the hearing before the Court of Cassation because he needed more time to prepare. The court acceded to his request. On 17 November 1992 there was another adjournment because the applicant’s lawyer was on strike. A further adjournment was ordered on the same ground on 9 February 1993. The appeal in cassation was finally heard on 11 May 1993.

On 1 July 1993 the Court of Cassation ( Arios Pagos ) quashed the decision of the Court of Appeal on the ground that it did not contain proper reasons. The case was sent back to the Court of Appeal for re-examination.

On 24 August 1993 the applicant asked for his appeal not to be heard in Crete on public order and safety grounds. His request was unsuccessful.

On 7 April 1994 the Court of Appeal of Crete adjourned the hearing of the case because the applicant’s lawyer was on strike. On 11 May 1995 the case was adjourned again because key prosecution witnesses were absent.

On 26 September 1996 the Court of Appeal found the applicant guilty of homicide, considered that there existed no mitigating circumstances and imposed on him a sentence of life imprisonment.

On 17 February 1997 the applicant appealed in cassation once more. He claimed, inter alia , that he had pleaded before the Court of Appeal that his sentence should be reduced because of the length of the proceedings but the court had tacitly rejected this plea.

On 10 September 1997 the applicant submitted an additional memorial to the effect that the Court of Appeal should have reduced his sentence proprio motu because of the length of the proceedings. He invoked in this connection Article 6 § 1 of the Convention.

The applicant’s appeal was heard by the Court of Cassation on 26 September 1997 and was rejected on 7 November 1997.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention of the length of the proceedings against him.

PROCEDURE

The application was introduced on 16 March 1998 and registered on 25 March 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 6 July 1999 the Court decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 20 October 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 6 December 1999.

THE LAW

The applicant complains under Article 6 § 1 of the Convention of the length of the proceedings against him.

Article 6 § 1 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 …”.

The Government submit that the length of the proceedings does not disclose a breach of Article 6 § 1 of the Convention, given the seriousness of the case, the fact that it was examined twice by the Court of Cassation and the fact that many delays were caused by the lawyers’ strike for which the Government are not responsible. The Government also point out that there are certain difficulties in constituting courts with jurors, that the applicant himself caused delays by asking for his case to be transferred to another appeal court and for the adjournment of the hearing of his appeal in cassation on 11 May 1992 and that some delays were caused by the fire in the public prosecutor’s office and the absence of key prosecution witnesses. Finally, the Government point out that each time that a hearing had to be adjourned care was taken to limit the delays when fixing a new date.

The applicant submits that his case was not complex, as evidenced by the fact that the first trial hearing only lasted two days. In his view, the State cannot invoke the difficulties in the constitution of courts with jurors to justify the delay in the proceedings. Moreover, by the time the fire broke out in the public prosecutor’s office, the hearing of his appeal had already been delayed by one year and eight months. Moreover, there was an eleven-month delay between the first decision of the Court of Cassation and the adjournment by the Court of Appeal of the re-examination of the applicant’s case. The applicant also argues that the Government cannot justify the delays by referring to the need to adjourn hearings because prosecution witnesses were not present. In addition there was a fifteen-month delay between the adjournment of 10 May 1995 and the re-examination of his case by the Court of Appeal. His second appeal in cassation was heard one year after the second judgment of the Court of Appeal. The lawyers’ strike did not cause major delays if compared with the overall length of the proceedings. The applicant cannot be blamed for making use of available remedies. Overall, the applicant submits that the particular circumstances of the case cannot justify the length of the proceedings, which exceeded nine years and seven months.

In the light of the parties’ observations, the Court considers that the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Marc Fischbach Registrar President