FIRST SECTION

DECISION

Application no. 68144/13 Dimitrios DIAMANTOPOULOS against Greece

The European Court of Human Rights (First Section), sitting on 8 March 2022 as a Chamber composed of:

Marko Bošnjak, President, Péter Paczolay, Alena Poláčková, Erik Wennerström, Raffaele Sabato, Lorraine Schembri Orland, Ioannis Ktistakis, Judges, and Renata Degener, Section Registrar,

Having regard to the above application lodged on 22 October 2013,

Having regard to the decision of 8 October 2018 to give notice to the Greek Government of the application,

Having regard to the parties’ observations,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Dimitrios Diamantopoulos, was a Greek national, who was born in 1933 and lived in Athens. He was represented before the Court by Mr P. Mazis , a lawyer practising in Athens. The applicant died on 5 October 2018, while his application was pending before the Court. His spouse, Mrs Eleni Diamantopoulou, his daughter, Mrs Pothiti Diamantopoulou and his son, Mr Georgios Diamantopoulos, stated that they wished to continue the proceedings.

2. The Greek Government (“the Government”) were represented by their Agent, Mr K. Georgiadis, Legal Representative at the State Legal Council.

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

4. The applicant was a managing partner of the company Diamantopoulos K Sia OE, which in 2003 participated in a call for tenders launched by the Greek State for the supply of 3,500 electric torches to the police. The E. company, Diamantopoulos K Sia OE, and a third company were selected in the first round of the bidding process. The applicant objected before the relevant administrative authorities to the selection of the E. company in the first round, contending that their torches did not comply with the technical specifications set out in the call for tenders. His objection was rejected and the E. company was awarded the tender, while Diamantopoulos K Sia OE was ranked third.

5. In 2006 criminal proceedings for active bribery were initiated against State agents involved with the management of calls for tenders. The applicant testified as a witness before the investigating judge stating, inter alia , that the E. company’s torches did not comply with the technical specifications as regards their capacity to transmit Morse code signals, and that the company’s declaration, that their country of origin was Germany, was false.

6. Mr A.G., the chairman of the board of directors and Mr V.G., the executive director of the E. company, were subsequently accused of active bribery. They were finally acquitted in 2009.

7. On 10 July 2006 the E. company, Mr A.G. and Mr V.G. brought a civil action against the applicant for perjury and slanderous defamation, claiming compensation for non-pecuniary damage. They also lodged, on an unknown date, a criminal complaint against the applicant for perjury and slanderous defamation.

8. Following the dismissal of their civil action by the Athens Court of First Instance in judgment no. 4183/2009, they lodged an appeal. The Athens Court of Appeal issued judgment no. 1496/2011, by which it reversed the first ‑ instance decision and ordered the applicant to pay each appellant 7,000 euros.

9. On 30 May 2011 the applicant lodged an appeal on points of law with the Court of Cassation (civil law chamber), against judgment no. 1496/2011, submitting (i) that the Court of Appeal judgment lacked sufficient reasoning and that certain parts of its reasoning were contradictory, and (ii) that the Court of Appeal had not considered important evidence.

10. As regards the criminal proceedings, on 25 May 2012 the Athens Criminal Court of First Instance acquitted the applicant of perjury and slanderous defamation. No appeal was lodged against that judgment which thus became final (court certificate dated 7 June 2012).

11. On 15 November 2012 the applicant, in written observations, relied for the first time on the presumption of innocence and adduced the final criminal acquittal judgment. He argued that the judgment of the civil appellate court violated his right to be presumed innocent, following his acquittal by the criminal courts on the same facts.

12. The hearing took place on 28 January 2013 and the Court of Cassation, by judgment no. 1577/2013, dismissed the applicant’s appeal on points of law on 23 July 2013 . In particular, it held that the reasons given by the Court of Appeal were adequate and consistent and that the Court of Appeal took into account and assessed all the evidence which had been adduced before it. The Court of Cassation did not refer to the applicant’s argument concerning the presumption of innocence.

13. The relevant provisions of the Code of Civil Procedure, as in force at the relevant time, read as follows:

Article 250

“Pending criminal proceedings which influence the court’s ruling on the case, the court may, of its own motion or at the request of the parties, adjourn the hearing until a final judgment is issued in criminal proceedings ( περατωθεί αμετάκλητα )”

Article 559

“An appeal on points of law may be brought ... in the event of (1) the infringement of a substantive provision ...”

Article 562 § 4

“By way of exception, the Court of Cassation shall examine of its own motion ( αυτεπαγγέλτως ), but following a suggestion by the judge rapporteur, included in the written proposal, a ground of appeal which is referred to in points 1, 4, 14, 16, 17 or 19 of Article 559.”

Article 569 § 2

“Supplementary grounds of appeal on points of law ... shall be submitted only by a document filed with the registry of the Court of Cassation thirty full days ( πλήρεις μέρες ) before the hearing of the case ... A copy of the supplementary grounds is to be served on the opposing party and other parties within the same time-limit ... Copies of the supplementary grounds ... shall be delivered by the secretary of the Court of Cassation to the judge rapporteur of the case and to the prosecutor of the Court of Cassation within the same time-limit of thirty days ...”

Article 570 § 1

“The parties shall not be required to submit observations, unless objections are raised as regards the timely and admissible lodging of the appeal on points of law and the supplementary grounds. The parties shall submit their observations at least twenty days before the date set for the hearing ( δικάσιμος ).”

14. The full plenary of the Court of Cassation issued on 15 July 2020 judgment no. 4/2020, which ruled on the issue of whether the civil courts are bound by the decisions of the criminal courts (see Ilias Papageorgiou v. Greece , no. 44101/13, §§ 20-25, 10 December 2020). The case concerned a criminal acquittal which took place before the appellate court’s finding of civil liability for slanderous defamation. The court held that for the presumption of innocence to be applicable to subsequent non-criminal proceedings, there must exist a correlation, in other words a substantial link, between the non-criminal and the criminal proceedings, as is the case when a civil action for damages is brought in the context of a tort case and compensation is claimed by the victim from the person allegedly responsible, when the latter has also been accused of the relevant criminal offence. The court further added that in civil courts the parties are responsible for adducing all of the evidence and “the presumption of innocence is activated only if the parties rely on and adduce the acquittal judgment of the criminal court to the civil court”.

15. The Court of Cassation concluded that the judgment of the criminal court determining whether the criminal act had been committed was not binding on the civil court’s determination of the relevant civil liability. However, the civil court had to take into account the criminal court’s judgment as a strong piece of evidence, although it could depart from it with a fully reasoned decision. The Court of Cassation held that the principle of the presumption of innocence does not preclude the establishment of civil liability following an acquittal judgment, even when the facts are identical.

COMPLAINTS

16. The applicant complained under Article 6 § 2 of the Convention that, despite the fact that he had relied on and adduced before the Court of Cassation his final acquittal by the criminal court on the same facts, the Court of Cassation had failed to consider it and had violated his right to be presumed innocent.

THE LAW

Alleged violation of Article 6 § 2 of the Convention

17. The applicant complained that the fact that the Court of Cassation had failed to consider his final acquittal by the criminal court on the same facts had breached his right to be presumed innocent. He relied on Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

(a) The parties’ submissions

18. The Government submitted that the acquittal judgment of the Athens First Instance Criminal Court was issued after the civil appellate court’s judgment. As, in the Greek judicial system, an appeal on points of law is limited to the examination of legal errors in the impugned judgment and cannot extend to the merits of the case, it would have been possible for the observance of the presumption of innocence to have been assessed by the Court of Cassation only if the applicant had formulated in an admissible way a separate supplementary ground of appeal relating to the presumption of innocence.

19. In the Government’s view, there was no link between the criminal proceedings and the civil proceedings at the Court of Cassation, because the latter had not examined the outcome of the prior criminal proceedings, analysed the criminal judgment, reviewed or evaluated the evidence in the criminal file, assessed the applicant’s participation in some or all of the events leading to the criminal charge, or commented on the indications of the applicant’s possible guilt.

20. The applicant argued that the Court of Cassation, by repeating in its judgment the entire judgment of the civil appellate court, which had ordered the applicant to pay compensation for perjury and slanderous defamation, had cast doubt on his acquittal by the criminal courts on the same facts and had stigmatised him. He further noted that the Government had not denied in their observations that his acquittal by the Athens Criminal Court of First Instance had activated the presumption of innocence.

21. The applicant relied on judgment no. 715/2017, alleging that the civil chamber of the Court of Cassation in that case had applied the principle of the presumption of innocence following a criminal acquittal, examined the relevant arguments, and quashed the civil appellate court’s decision which had established civil liability on the same facts.

22. The Government replied that the present situation differed from that in judgment no. 715/2017 because in the latter case the criminal acquittal judgment had been issued three years before the civil Court of Appeal’s judgment and not after it.

(b) The Court’s assessment

23. The general principles concerning the applicability of Article 6 § 2 in proceedings that follow the conclusion of criminal proceedings are set out in the Court’s judgment Allen v. the United Kingdom [GC] (no. 25424/09, §§ 92-105, ECHR 2013 ).

24. The Court reiterates that the scope of Article 6 § 2 is not limited to pending criminal proceedings against an applicant. The above-mentioned Article can apply to judicial decisions taken after such proceedings were concluded either by way of discontinuation or acquittal (see Allen, cited above, §§ 98-102, for the summary of the earlier case-law in that connection). Such subsequent judicial decisions fall within the scope of Article 6 § 2 when, by virtue of the domestic legislation and practice, they are linked to the criminal proceedings and constitute “consequences and necessary concomitants of”, or “a direct sequel to”, the conclusion of the criminal proceedings (ibid., §§ 99-100).

25. In Allen (cited above, § 104), the Court has clarified that, whenever the question of the applicability of Article 6 § 2 arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt.

26. In the present case, the Court notes that it is the second aspect of Article 6 § 2 of the Convention that comes into play, the role of which is to prevent the principle of the presumption of innocence from being undermined after the relevant criminal proceedings were concluded either by way of discontinuation or acquittal (see Allen, cited above, § 94; Ilias Papageorgiou v. Greece, cited above, § 45 ). The Court must, therefore, examine whether there was a link between any prior criminal proceedings and the civil proceedings which ended in judgment no. 1577/2013 of the Court of Cassation.

27. The final acquittal judgment of the criminal courts was issued after the appellate court’s judgment, and the Court of Cassation, as the highest domestic civil court, was the only judicial body which could possibly examine any argument relating to the consequences of the acquittal judgment as regards the compensation case.

28. The Court notes, as the Government also acknowledged, that the conduct of the applicant examined in the civil and the criminal proceedings was identical, namely the statements in his testimony as a witness before the investigating judge as regards the E. company and the specifications of their products.

29. The fact that the Court of Cassation did not examine the applicant’s arguments relating to the presumption of innocence because they had not been adduced in an admissible way before it, does not preclude the applicability of Article 6 § 2 in the present case, considering that the Government stated explicitly in their observations that the Court of Cassation “would have assessed the observance of the presumption of innocence if the applicant had formulated in an admissible way a separate supplementary ground relating to it” (see paragraph 18 above). Under Greek law and in the light of the domestic case-law (see paragraphs 14-15 above), it would not be incompatible with the Court of Cassation’s power of review to examine the consequences for the civil proceedings of a criminal acquittal judgment, in the circumstances when the latter was issued after the Court of Appeal’s judgment.

30. For these reasons, the civil proceedings before the Court of Cassation were linked, in the present case, to the criminal proceedings and Article 6 § 2 is applicable.

(a) The parties’ submissions

31. The Government objected that the applicant had not exhausted domestic remedies because he had relied for the first time on the presumption of innocence and the acquittal judgment of the criminal courts in his written observations submitted on 30 November 2012, before the hearing at the Court of Cassation on 28 January 2013. It was well known to any reasonably prudent lawyer, that the grounds of appeal on points of law must be submitted either in the relevant application or in the supplementary grounds document ( δικόγραφο προσθέτων λόγων ), pursuant to Article 569 of the Code of Civil Procedure. Any grounds of appeal put forward in the written observations have no legal effect. The applicant did not provide the Court of Cassation with the opportunity to examine his ground of appeal and to examine the case in general under Article 6 § 2 of the Convention.

32. The Government also argued that in accordance with Article 562 § 4 of the Code of Civil Procedure, as applicable at the relevant time, the Court of Cassation could examine of its own motion one of the grounds of appeal referred to therein only following a suggestion by the judge rapporteur included in his written proposal (see paragraph 13 above) and such a suggestion had not been submitted in the present case.

33. The Government further added that the applicant had had the possibility οf requesting the adjournment of the hearing in his civil case before the Court of Appeal until the criminal court had issued its judgment. The Government adduced relevant case-law, according to which the civil courts had decided to adjourn civil proceedings until the final judgment of the criminal courts.

34. The applicant contended that he had, through his written observations, submitted validly, explicitly and coherently his arguments that the presumption of innocence had been violated. In accordance with point 1 of Article 559 of the Code of Civil Procedure, the infringement of a substantive provision constitutes a ground of appeal which the Court of Cassation has the possibility, if not the obligation, to examine of its own motion under Article 562 § 4 of the Code of Civil Procedure. The Court of Cassation could thus have considered the presumption of innocence and quashed the impugned judgment even if the applicant had omitted to put forward the ground of appeal relating to the presumption of innocence, and all the more so when the applicant had put the argument forward in the written submissions or orally during the hearing.

35. The applicant further submitted that the fact that he had not requested the adjournment of the civil proceedings could not absolve the Court of Cassation from examining his ground of appeal. In any event, as the judgment of the Criminal Court of First Instance was in his favour, he had not had any interest in requesting the suspension of the appeal proceedings.

(b) The Court’s assessment

36. The Court reiterates that the purpose of the rule on the exhaustion of domestic remedies is to afford Contracting States the opportunity of preventing or putting right violations that they are alleged to have committed before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). At the same time, the complaints intended to be made subsequently at international level should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

37. The formal requirements in question, or their application, should not prevent litigants from using an available remedy (see Miragall Escolano and Others v. Spain , nos. 38366/97 and 9 others, § 36, ECHR 2000-I). Where an applicant has failed to comply with formal requirements, the application should in principle be declared inadmissible for failure to exhaust domestic remedies (see, for example, Cardot v. France , 19 March 1991, § 34, Series A no. 200, and Thiermann and Others v. Norway (dec.), no. 18712/03, 8 March 2007).

38. The Court further notes that it is not its task to take the place of the domestic courts. It is primarily for the national authorities to resolve problems of interpretation of domestic legislation. Its role is limited to verifying whether the effects of such interpretation are compatible with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature. The Court further considers that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging a legal remedy are aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty. Litigants should expect those rules to be applied (see, mutatis mutandis , Miragall Escolano and Others, cited above, § 33 ) .

39. In the present case, the applicant lodged the appeal on points of law on 30 May 2011, and the criminal acquittal judgment was issued on 25 May 2012. He thus needed to submit after his initial application a supplementary ground of appeal relating to the presumption of innocence. However, the Court of Cassation did not examine the applicant’s ground of appeal relating to the presumption of innocence, which was included in his written observations instead of being submitted in the supplementary grounds document, contrary to the relevant procedural requirements laid down in Article 569 § 2 of the Code of Civil Procedure.

40. Article 569 § 2 of the Code of Civil Procedure specifically provides for the possibility of subsequently submitting, where necessary, supplementary grounds to an appeal on points of law. That provision lays down specific procedural steps which must be followed. The appellant must draw up a separate document, lodge it with the registry thirty full days before the hearing of the case and serve it on the other parties within the same time ‑ limit. Τhe rules governing those formal steps to be taken are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty and the equality of arms (see Doggakis and Others v. Greece , no. 527/05, § 20, 26 July 2007 ).

41. The applicant was represented by a lawyer during the entire proceedings and he should have expected that the procedural rules concerning the submission of supplementary grounds had to be respected. Moreover, he did not provide any explanation as to why he failed to submit the grounds of appeal in the form of supplementary grounds, despite the fact that the time ‑ limit for their submission had not expired at the time when he chose, instead, to rely on the alleged breach of the presumption of innocence in his observations.

42. As regards the applicant’s argument that the Court of Cassation could or should examine of its own motion the presumption of innocence notwithstanding the means by which it was put forward, there is nothing in the material in the Court’s possession to support this interpretation. The domestic legislation as it stood at the relevant time did not impose an obligation on the part of the Court of Cassation to examine that ground of appeal without the relevant preconditions being met. The applicant did not produce any case-law demonstrating that the Court of Cassation had considered a criminal acquittal judgment of its own motion despite the fact that it had not been validly relied on. On the contrary, the Court notes that in the full plenary judgment no. 4/2020, the Court of Cassation held that “the presumption of innocence is activated only if the applicant relies on and adduces a criminal acquittal judgment at the civil court”.

43. Lastly, the Court notes that the situation in the present case differs from Kapetanios and Others v. Greece (nos. 3453/12 and 2 others, § 66, 30 April 2015 ), in which the Court held that the domestic court should have examined of its own motion the consequences of the final criminal acquittal judgment for the relevant pending proceedings. In the specific circumstances of that case the applicants had relied on the acquittal judgments in accordance with the procedural requirements at the highest court.

44. That being so, the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the domestic remedies available to him as he failed to comply with the applicable rules and procedures of Greek law. The application must therefore be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 March 2022.

Renata Degener Marko Bošnjak Registrar President