CEDH · CASELAW;REPORTS;ENG — 10 février 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                                  FIRST CHAMBER                            Application No. 15264/89                                 Nicholas PHILIS                                     against                                     Greece                            REPORT OF THE COMMISSION                          (Adopted on 10 February 1993)                                TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1 - 10) . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 11 - 15). . . . . . . . . . . . . . . . . . . . . . . . . .2   III.   OPINION OF THE COMMISSION       (paras. 16 - 34). . . . . . . . . . . . . . . . . . . . . . . . . .4     A.   Complaint declared admissible       (para. 16). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4     B.   Points at issue       (para. 17). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4     C.   The alleged violation of Article 6 para. 1 of the Convention       (paras. 18 - 28). . . . . . . . . . . . . . . . . . . . . . . . . .4         CONCLUSION       (para. 29). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5     D.   The alleged violation of Article 13 of the Convention       (paras. 30 - 31). . . . . . . . . . . . . . . . . . . . . . . . . .6         CONCLUSION       (para. 32). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6         Recapitulation       (para. 33). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6   APPENDIX I:        Partial Decision on the admissibility                   of the application. . . . . . . . . . . . . . . . . . .7   APPENDIX II:       Final Decision on the admissibility                   of the application. . . . . . . . . . . . . . . . . . 12   I.     INTRODUCTION   1      The present Report concerns Application No. 15264/89 by Nicholas Philis against Greece, introduced on 20 June 1989 and registered on 20 July 1989.   2      The applicant is a Greek national born in 1937 and resident in Athens.   3      The application is directed against Greece. The respondent Government were initially represented by their Agent, Mr. Constantinos Economides, Head of the Special Legal Department of the Ministry of Foreign Affairs. They are now represented by their Agent, Mr. George Sgouritsas, President of the Legal Council of the State (Nomino Symboulio ton *ratous).   4      On 5 November 1990, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the applicant's complaint concerning the length of criminal proceedings. The Commission declared inadmissible the remainder of the application. The Commission's partial decision is annexed to this Report (Appendix I).   5      On 8 April 1991 the Commission referred the application to the First Chamber.   6      The Government submitted their observations on 11 April 1991. The applicant's observations in reply were contained in his letter of 10 May 1991.   7      On 7 July 1992 the Commission (First Chamber) declared admissible the applicant's complaint concerning the length of the proceedings.   This final decision on admissibility is also appended to this Report (Appendix II).   The applicant has submitted further observations on 21 August 1992.   8      Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this report on 10 February 1993, in accordance with Article 31 para. 1 of the Convention, the following members being present:               MM.    J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK             Sir    Basil HALL             Mr.    C.L. ROZAKIS             Mrs.   J. LIDDY             MM.    M. PELLONPÄÄ                   B. MARXER                   G.B. REFFI   9      In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Greece.   10     The text of the report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   11     On 20 September 1985 criminal proceedings were instituted against the applicant for issuing a cheque without funds.   12     On 26 November 1986 the First Instance Court of Athens (*onomeles Plimmeliodikeio) held a hearing on the case and examined a witness on the applicant's behalf and the applicant himself.   The court found the applicant guilty and sentenced him to fifteen days' imprisonment convertible into a fine of 10,300 Dr.   The judgment was read out in open court in the presence of the applicant on the same date.   13     On 14 December 1987 and 26 January 1988 the applicant complained to the Prosecutor of the Court of Cassation (*isangeleas *reios Pagos) that the judgment of the Athens Court had not been finalised and registered in the court's registry (Katharographi) within the 15-day time-limit prescribed by Article 473 para. 3 of the Code of Criminal Procedure.    He did not receive any reply. On 29 March 1988 the applicant received the text of the judgment. On the front page it was indicated that the decision had been signed and registered on 10 February 1988.   14     On 15 April 1988 the applicant appealed to the Court of Cassation.   He submitted that the First Instance Court of Athens had failed to examine whether the bank's refusal to pay the cheque was justified, i.e. whether the cheque was actually without cover, and contended that his fraudulent intent was not proven.   As to the admissibility of his appeal the applicant submitted that the running of the 20-day appeal time-limit began on 29 March 1988, when he received the judgment.   He also contended that the registration was irregular.   15     In its decision of 10 February 1989 the Court of Cassation found that the appeal time-limit began at the latest on 10 February 1988 when the decision was signed and registered.   Consequently the Court of Cassation declared the appeal inadmissible for having been introduced out of time.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   16     The Commission has declared admissible the applicant's complaint relating to the length of the criminal   proceedings before the Greek courts.   B.     Points at issue   17     The points at issue in the present case are as follows:         (i)    Has the length of the proceedings complained of       exceeded the "reasonable time" referred to in Article 6       para. 1 (Art. 6-1) of the Convention?         (ii)   Has the length of the proceedings complained of violated       the applicant's right to have an effective remedy under       Article 13 (Art. 13) of the Convention?   C.     The alleged violation of Article 6 para. 1 (Art. 6-1)       of the Convention         General considerations   18     Under Article 6 para. 1 (Art. 6-1) of the Convention, "In the determination of any criminal charge against him ..., everyone is entitled to a .... hearing within a reasonable time by (a) .... tribunal ...."   19     It is not contested that the above provision applies to the proceedings complained of.   20     According to the constant case-law of the Court and the Commission, the reasonableness of the length of proceedings falling within the scope of Article 6 para. 1 (Art. 6-1) of the Convention must be assessed in the light of the circumstances of each case and having regard in particular to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (see, for example, Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).         Determination and assessment of the length of the proceedings   21     With regard to the period to be considered, the Commission notes that the proceedings began on 20 September 1985, when the applicant was charged with issuing a cheque without funds. The period the Commission is competent to examine ratione temporis began on 20 November 1985, when recognition by Greece of the right of individual petition took effect. However, in assessing the reasonableness of the length of the proceedings account must be taken of the state of proceedings on 20 November 1985 (cf. Eur.Court H.R., Foti and Others judgment of 10 December 1982, Series A No 56, pp. 18-19, para. 53). The proceedings ended on 10 February 1989, when the Court of Cassation delivered its judgment on the applicant's appeal. Consequently, the proceedings complained of lasted 3 years, 4 months and 20 days, of which more than 3 years were after the Greek declaration under Article 25 (Art. 25) of the Convention.   22     The Commission notes that the investigation and first instance proceedings, until judgment at first instance was given orally, lasted some 14 months. The proceedings before the Court of Cassation lasted not quite 8 months. The Commission finds that these periods cannot be regarded as unreasonably long.   23     The Commission however observes that what undoubtedly contributed to the prolongation of the proceedings was the 14 months period between 26 November 1986, when the first instance judgment was given orally, and 10 February 1988, on which date the judgment was "finalised".   24     The applicant submits that he has in vain requested on several occasions a "finalised" version of the judgment in order to appeal to the Court of Cassation. He further complained to the Prosecutor of the Court of Cassation of the delays in the "finalisation". However, his requests and complaints remained unanswered.   25     The Government submit the overall length of the proceedings was not unreasonable. In particular the period of time taken for the "finalisation" is imputable to the applicant who did not ask for the "finalisation" of the judgment at an earlier stage. Having regard to the heavy workload of the Athens First Instance Court such a demand was necessary for ensuring a speedy "finalisation".   26     The Commission finds that the complexity of the case cannot justify the length of the proceedings complained of.   27     It further notes that the "finalisation" of the judgment in the present case only involved the filling up of a judgment form of 7 pages and its signature by the Judge and the Registrar. It finds that the 14 months delay in this "finalisation" is imputable to the judicial authorities and not to the applicant, as the Government submit. In particular, with regard to the excessive case-load of the Athens' First Instance Court, the Commission reiterates that under Article 6 para. 1 (Art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of any criminal charge against him. It is for Contracting States to organise their legal systems in such a way that their courts can meet this requirement (see Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   28     In the light of the criteria established by the case-law and having regard to all the circumstances of the case, the Commission considers that the length of the proceedings complained of has been excessive and incompatible with the "reasonable time" requirement.         Conclusion   29     The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     The alleged violation of Article 13 (Art. 13) of the Convention   30     The applicant has also invoked Article 13 (Art. 13) of the Convention which provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."   31     The Commission observes however that the applicant has not under this provision made any complaint other than that of the excessive length of the proceedings examined above under Article 6 para. 1 (Art. 6-1) of the Convention. Therefore, the Commission finds that it is not necessary to examine the same issue under Article 13 (Art. 13) of the Convention.         Conclusion   32     The Commission concludes, unanimously, that it is not necessary to examine the applicant's complaint under Article 13 (Art. 13) of the Convention.         Recapitulation   33     The Commission concludes, unanimously, that in this case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission concludes, unanimously, that it is not necessary to examine the applicant's complaint under Article 13 (Art. 13) of the Convention.           Secretary to                               President of       the First Chamber                          the First Chamber         (M.F. BUQUICCHIO)                            (J.A. FROWEIN)