Information Note on the Court’s case-law 211

October 2017

Tsalkitzis v. Greece (No. 2) - 72624/10

Judgment 19.10.2017 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Refusal to suspend or adjourn criminal proceedings for slander: no violation

Facts – In earlier proceedings ( Tsalkitzis v. Greece , 11801/04 , 16 November 2006 – “the 2006 ju dgment”), the applicant had successfully argued before the European Court that his right of access to a court had been violated by a ruling of the Greek courts upholding the parliamentary immunity from prosecution of a member of parliament against whom he had lodged a criminal complaint alleging breach of duty, extortion and bribery.

The member of parliament had in turn lodged a criminal complaint against the applicant for false accusation, perjury and slander. Having been convicted of the charges at first instance, the applicant appealed arguing that his trial should have been suspended or adjourned until the end of the criminal proceedings he had initiated against the member of parliament. In the Convention proceedings, the applicant complained under Arti cle 6 § 1 that the refusal of the Greek courts to suspend or adjourn the proceedings against him had breached his right to a fair trial.

Law – Article 6 § 1: There were no provisions in the domestic legislation to allow for the suspension of criminal proce edings in cases such as the applicant’s, that is when a criminal complaint had not led to prosecution for reasons other than it being unfounded or, more specifically, owing to an act found to be in breach of the Convention. However, the Court’s task was no t to review the relevant law and practice in abstracto , but to ascertain in concreto whether the proceedings as a whole, including the refusal of the applicant’s request to suspend the proceedings, had infringed his right to a fair trial under Article 6.

T he Court could not conclude that the Court of Appeal’s reading of the 2006 judgment was, viewed as a whole, the result of a manifest factual or legal error leading to a “denial of justice”. In particular, it did not directly flow from the 2006 judgment tha t that any future criminal proceedings against the applicant related to the same set of facts would have to be adjourned. In addition, the finding of a violation of Article 6 did not generally create a continuing situation or impose a continuing procedural obligation on the respondent State.

The violation of the applicant’s right of access to a court established in the 2006 judgment did not automatically render the proceedings conducted against him unfair. Although the two sets of proceedings – the criminal proceedings against the applicant an d his criminal complaint against the member of parliament – were closely linked, they were distinct from each other.

In the proceedings against him, the applicant had been given the opportunity to examine witnesses, adduce documents, be represented by a l awyer and be heard by the domestic courts which examined his case. He was able to submit the arguments he considered relevant and an oral hearing was held both before the first-instance court and the Court of Appeal, which had full competence to assess all the relevant facts and evidence. The applicant had therefore been afforded all the guarantees of a fair trial and had had a real opportunity to defend himself and be acquitted.

The Court did not accept the applicant’s argument that he had been deprived of the assistance he would have received had the authorities investigated the member of parliament first. In that connection, it attached significant weight to the different level of proof required in the two set of proceedings, noting that if criminal proce edings had been initiated against the member of parliament his guilt would have had to be proved beyond any reasonable doubt whereas in the proceedings against the applicant any reasonable doubt benefited him as the defendant.

The Court was not convinced t hat the proceedings conducted against the applicant were unfair or that the domestic courts’ refusal to suspend or adjourn them had been so formalistic as to limit unreasonably his access to a court or to render the proceedings as such unfair.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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