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. 16598/90                               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). . . . . . . . . . . . . . . . . . . . . . . 3   III.   OPINION OF THE COMMISSION       (paras. 16 - 27). . . . . . . . . . . . . . . . . . . . . . . 4     A.   Complaint declared admissible       (para. 16). . . . . . . . . . . . . . . . . . . . . . . . . . 4     B.   Point at issue       (para. 17). . . . . . . . . . . . . . . . . . . . . . . . . . 4     C.   The alleged violation of Article 6 para. 1       of the Convention       (paras. 18 - 26). . . . . . . . . . . . . . . . . . . . . . . 4         Conclusion       (para. 27). . . . . . . . . . . . . . . . . . . . . . . . . . 5   APPENDIX I:       Partial Decision on the admissibility                  of the application . . . . . . . . . . . . . . . . 6   APPENDIX II:      Final Decision on the admissibility                  of the application . . . . . . . . . . . . . . . .11   I.     INTRODUCTION   1      The present Report concerns Application No. 16598/90 by Nicholas Philis against Greece, introduced on 6 April 1990 and registered on 16 May 1990.   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 (**miko Symboulio ton *ratos).   4      On 11 December 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 13 May 1991.   7      On 1 July 1992 the Commission (First Chamber) declared admissible the applicant's remaining complaint concerning the length of the proceedings.   This final decision on admissibility is also appended to this report (Appendix II).   The Government have submitted further observations on the merits of the complaint declared admissible on 11 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 30 July 1985 the Agricultural Bank of Greece transferred to the applicant's account in the National Bank of Greece an amount of 351,000 Dr representing a part of the fee for design projects executed by the applicant.   On 8 August 1985 the applicant issued a cheque for 100,000 Dr payable to himself, which the National Bank refused to pay, since the amount transferred to the applicant's account was credited only on 14 August 1985.   The bank informed the Athens Prosecutor who charged the applicant with issuing a cheque without funds.   12     The case was brought before the First Instance Court of Athens (**n*meles Plimmeliodikei*).   The hearing of the case was adjourned on two occasions, namely on 12 January 1986 and 19 December 1986, because of the absence of the representative of the bank.   The court held a hearing on 16 January 1987 in the applicant's absence.   It found the applicant guilty and sentenced him to 5 months' imprisonment and a fine of 50,000 Dr.   13     On 19 January 1987 the applicant appealed to the Criminal Court of Athens (*rimeles Plimmeleiodikei*).   14     A hearing was held on 18 April 1989.   The court heard the applicant but rejected his request to examine witnesses against him. The court reduced the penalty to 20 days' imprisonment convertible into a fine of 19,440 Dr.   The judgment was read in open court in the applicant's presence on the same date.   15     On 5 May 1989 the applicant appealed to the Court of Cassation (*reios Pagos).   At the hearing held before that court on 13 February 1990 the applicant presented his case himself, although under Article 513 para. 3 of the Code of Criminal Procedure he should have been represented by a lawyer.   The applicant invoked Article 6 para. 3 (c) of the Convention, submitting that according to this provision he had the right to defend himself in person. On 13 March 1990 the Court of Cassation gave its judgment by which the applicant's appeal was declared inadmissible because he was not duly represented before that court.   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.     Point at issue   17     The point at issue in the present case is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) 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 in August 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 13 March 1990, when the Court of Cassation delivered its judgment on the applicant's appeal. Consequently, the proceedings complained of lasted 4 years and 6 months, of which more than 4 years after the Greek declaration under Article 25 (Art. 25) of the Convention.   22     The Commission finds that the proceedings were not of such a complexity as to justify such an overall duration. The applicant submits that the length of the proceedings is due to the attitude of the judicial authorities while the Government contend that no delays due to that conduct can be found.   23     The Government submit, in particular, that the postponements of the hearing in the applicant's case before the First Instance Court were due to the absence of an essential witness. Moreover, the applicant did not protest against these postponements. As regards the appeal proceedings, the Government submit that the delays were essentially due to the workload of the Athens Criminal Court. They note that a change in the court's working hours caused a temporary overload of that court's list at that period. However, measures have been taken in order to permit the judiciary to deal effectively with this workload. Finally, the proceedings before the Court of Cassation lasted about ten months, a period which is not unreasonably long.   24     The Commission observes that when the examination of the applicant's case was adjourned by the First Instance Court on 12 January 1986, a new hearing was fixed on 19 December 1986, i.e. 11 months later. It further notes that the appeal proceedings took place 2 years and 3 months after the filing of the appeal. The Commission finds that the above periods of inactivity are imputable to the judicial authorities.   25     As regards the case-load of the domestic courts, the Commission recalls 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).   26     In the light of the criteria established by 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   27     The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           Secretary to                           President of       the First Chamber                      the First Chamber         (M.F. BUQUICCHIO)                        (J.A. FROWEIN)