SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42155/98 by Nicholas STAMOULAKATOS against Greece

The European Court of Human Rights ( Second Section ) sitting on 9 November 1999 as a Chamber composed of

Mr M. Fischbach, President , Mr C. Rozakis, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, Mr E. Levits, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 July 1998 by Nicholas Stamoulakatos against Greece and registered on 10 July 1998 under file no. 42155/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 22 March 1999 and the observations in reply submitted by the applicant on 19 April 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek national, born in 1932 and living in London .

A. Particular circumstances of the case

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

On 15 November 1993 the public prosecutor of Athens summoned the applicant to appear before the three-member first instance criminal court ( trimeles plimmeliodikio ) of Athens on 26 April 1994 to be tried for making a false criminal accusation and perjury.

The applicant's trial took place in his absence on 12 February 1997. He was found guilty and given a commutable sentence of ten months. The applicant appealed on 5 June 1997 and the enforcement of the first instance decision was suspended.

On 8 May 1998 the three-member Court of Appeal ( trimeles efetio ) of Athens decided to discontinue the proceedings against the applicant because the action had become time-barred.

On 12 May 1998 the applicant applied for compensation for the proceedings instituted against him.

On 29 June 1998 the Greek General Consulate in London sent the applicant a letter it had received from the Court of Appeal of Athens . This letter, dated 11 June 1998, was addressed to the General Consulate and stated the following:

“In reply to your letter of 9 April 1998, which concerns a request by Nicholas Stamoulakatos , we inform you that, according to the law, he has no right to be compensated.”

B. The applicant's previous application under the Convention

On 25 August 1996 the applicant lodged application No. 32857/96 with the European Commission of Human Rights complaining, inter alia, of the length of the above criminal proceedings against him, which were at the time pending at first instance.

On 3 December 1997 the Commission declared the applicant's complaint concerning the length of the first instance proceedings admissible. It declared the remainder of the application inadmissible.

On 20 May 1998 the Commission expressed the opinion that the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time had been violated because of the length of the first instance proceedings.

On 18 January 1999 the Committee of Ministers found that there had been a violation of Article 6 § 1 in the applicant's case.

COMPLAINTS

1. The applicant complains under Articles 1, 3, 4, 5, 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 of the fairness of the proceedings against him. In particular, he claims that he was not given legal aid, that the authorities refused to bear his travel expenses for attending the trial and that the first instance court refused to hear some of his witnesses and to make an interpreter available to some others.

2. The applicant also complains under Article 6 § 1 of the Convention of the length of the proceedings.

3. Finally, the applicant complains under Article 3 of Protocol No. 7 that, despite his acquittal, he was not compensated.

PROCEDURE

The application was introduced with the European Commission of Human Rights on 1 July 1998 and registered on 10 July 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 24 November 1998 the Court decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 22 March 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 19 April 1999.

THE LAW

1. The applicant complains under Articles 1, 3, 4, 5, 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1 of the fairness of the proceedings against him.

Article 1 of the Convention creates an obligation for States to respect the human rights guaranteed in the Convention. Article 3 prohibits torture. Article 4 prohibits slavery and forced labour. Article 5 guarantees the right to liberty and security. Article 6 guarantees the right to a fair trial. Article 13 guarantees the right to an effective remedy for alleged violations of the rights in the Convention. Article 14 prohibits discrimination in the enjoyment of the rights in the Convention. Article 1 of Protocol No. 1 protects the right to property.

The Court recalls that, according to the case-law of the Convention organs, an acquitted person may not claim to be a victim of violations of the right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of the proceedings as a result of which he was acquitted (application No. 8083/77, admissibility decision 13.3.80, D.R. 19, p. 223). The Court notes that the proceedings against the applicant were discontinued on appeal because the action had become time-barred. The Court considers that also in such a situation the applicant can no longer claim to be a victim of a violation of the right to a fair trial.

The Court also notes that the applicant has not explained the reasons for which he invokes Articles 1, 3, 4, 5, 13 and 14 of the Convention and Article 1 of Protocol No. 1 in connection with the fairness of the criminal proceedings against him. The Court finds no appearance of a violation of the rights guaranteed by these provisions on the basis of the information contained in the case-file.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 thereof.

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

Article 6 § 1 guarantees the right to a hearing "within a reasonable time".

The Government submit that the Court may only take into consideration the length of the proceedings after the applicant appealed against his first instance conviction. The length of the first instance proceedings was examined in the context of application No. 32857/96. The Government argue that the applicant, when lodging the present application, did not complain about the length of the appeal proceedings. In any event, the fact that the appeal proceedings lasted eleven months does not disclose, in the Government's view, a violation of Article 6 § 1 of the Convention.

The applicant argues that there was a new violation of the Convention in the appeal proceedings.

The Court recalls that the question of the length of the first instance proceedings against the applicant was examined in the context of application No. 32857/96. It follows that under Article 35 § 2 (b) of the Convention the Court may, in the context of the present application, only examine the length of the proceedings after the applicant's first instance conviction.

The Court notes that the applicant, when lodging the application, complained expressly about the length of the proceedings, including the appeal proceedings.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see, among other authorities, the Pélissier et Sassi v. France judgment of 25 March 1999, to be published in Reports of Judgments and Decisions 1999, § 67, and the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports 1997-IV, p. 1083, § 35).

The Court can find no indication that the appeal proceedings were complex, especially since they were eventually discontinued because the action against the applicant had become time-barred. Making a global assessment of the duration of the proceedings, the Court considers that an eleven-month period between the lodging and the final determination of an appeal cannot justify the conclusion that the applicant's right to a hearing within a reasonable time was violated.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 thereof.

3. The applicant complains under Article 3 of Protocol No. 7 that, despite his acquittal, he was not compensated.

Article 3 of Protocol No. 7 provides as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non ‑ disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Government argue that the applicant is not entitled to compensation under this provision because he did not serve the sentence that had been imposed on him at first instance. Moreover, the proceedings were discontinued on appeal because of a technicality and not because it was shown that the findings of the first instance court were flawed.

The applicant considers that he is entitled to compensation.

The Court finds that the applicant was not convicted by a "final decision" which was subsequently reversed. Consequently, he cannot claim a right to compensation under Article 3 of Protocol No. 7.

This part of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Marc Fischbach              Registrar              President