Information Note on the Court’s case-law 260

March 2022

Diamantopoulos v. Greece (dec.) - 68144/13

Decision 8.3.2022 [Section I]

Article 6

Article 6-2

Presumption of innocence

Criminal acquittal issued after court of appeal judgment establishing civil liability for the same conduct and relied upon before cassation court to contest that liability: Article 6 § 2 applicable

Facts – The Athens Court of Appeal established the applicant’s civil liability for perjury and slanderous defamation and ordered him to pay compensation. The applicant lodged an appeal on points of law with the Court of Cassation (civil law chamber). While this was pending, the Athens Criminal Court of First Instance assessed the applicant’s criminal liability on the same facts for perjury and slanderous defamation and acquitted him by a final judgment. Relying on this judgment, the applicant then put forward at the Court of Cassation a plea in law relating to the violation of the presumption of innocence by the civil appellate court. The Court of Cassation did not examine this plea as the applicant had invoked it in his written observations before the hearing and not by a separate supplementary grounds document, as required by Article 569 § 2 of the Code of Civil Procedure. The appeal was dismissed on points of law.

Law – Article 6 § 2

(a) Applicability – It was the second aspect of Article 6 § 2 that came into play, the role of which was to prevent the principle of the presumption of innocence from being undermined after the relevant criminal proceedings had been concluded either by way of discontinuation or acquittal. The question to be examined therefore was whether the civil proceedings which had ended with the Court of Cassation’s judgment had been linked to any prior criminal proceedings. The Court replied in the affirmative. In particular, the final acquittal judgment in the criminal case against the applicant had been issued after the appellate court’s judgment, and the Court of Cassation, as the highest domestic civil court, had been the only judicial body which could have possibly examined any argument relating to the consequences of the acquittal judgment as regards the compensation case. Indeed, under domestic law and in the light of the domestic case-law, it would not have been incompatible with its power of review to examine the consequences for the civil proceedings of a criminal acquittal judgment. The conduct of the applicant examined in the civil and the criminal proceedings had been identical. The Government had stated explicitly in their observations that the Court of Cassation would have assessed the observance of the presumption of innocence if this plea had been formulated in an admissible way as a separate supplementary ground to his appeal on points of law. Consequently, the fact that it had not been examined as it had not been submitted in an admissible way did not preclude the applicability of Article 6 § 2.

Conclusion : Article 6 § 2 applicable.

(b) Admissibility (exhaustion of domestic remedies) – Article 569 § 2 of the Code of Civil Procedure laid down specific procedural steps that had to be followed for submitting supplementary grounds to an appeal on points of law. Τhe rules governing those formal steps to be taken were aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty and the equality of arms. The applicant had been represented by a lawyer during the entire proceedings and should have expected that the relevant procedural rules had to be respected. Moreover, he did not provide any explanation as to why he had failed to submit the grounds of appeal in the form of supplementary grounds even though the thirty-day time-limit for their submission had not expired when he had invoked the plea in his observations. Nor was there anything in the material before the Court indicating, as argued by the applicant, that the Court of Cassation could or should have examined of its own motion the presumption of innocence notwithstanding the means by which it was put forward. 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 had not produced any case-law demonstrating that the Court of Cassation had ever done so. On the contrary, that court had already held that the presumption of innocence was activated only if the applicant relied on and adduced a criminal acquittal judgment at the civil court. In this respect the present case thus differed from Kapetanios and others v. Greece in which the applicants had relied on the acquittal judgments in accordance with the procedural requirements at the highest court.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

(See also Allen v. the United Kingdom [GC], 25424/09, 12 July 2013, Legal Summary ; Kapetanios and others v. Greece, 3453/12 and 2 others, 30 April 2015, Legal Summary ; Ilias Papageorgiou v. Greece , 44101/13, 10 December 2020)

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

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