CEDH · CASELAW;REPORTS;ENG — 16 janvier 1996

.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. 19773/92                             Nicholas Philis                                 against                                 Greece                        REPORT OF THE COMMISSION                    (adopted on 16 January 1996)                            TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3        A.    Criminal proceedings against the applicant           for insulting a judicial authority           (paras. 16-24). . . . . . . . . . . . . . . . . . .3        B.    Disciplinary proceedings against the applicant           (paras. 25-29). . . . . . . . . . . . . . . . . . .4     III. OPINION OF THE COMMISSION      (paras. 30-54) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 30). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 31). . . . . . . . . . . . . . . . . . . . .5        C.    As regards the alleged violation of Article 6 para. 1           of the Convention in the criminal proceedings           (paras. 32-39). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 40). . . . . . . . . . . . . . . . . . . . .6        D.    As regards the alleged violation of Article 6 para. 1           of the Convention in the disciplinary proceedings           (paras. 41-51). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 52). . . . . . . . . . . . . . . . . . . . .8        E.    Recapitulation           (paras. 53-54). . . . . . . . . . . . . . . . . . .9       APPENDIX I:     PARTIAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 10   APPENDIX II:    FINAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 20     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Greek citizen, born in 1937 and resident in Athens.   3.    The application is directed against Greece.   The respondent Government were represented by their Agent, Mr. L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr. M. Apessos, Deputy Member (Paredros) of the Legal Advisory Council of the State, and Mrs. K. Grigoriou, Assistant Member (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns the length of criminal and disciplinary proceedings against the applicant.   The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 15 January 1992 and registered on 27 March 1992.   6.    On 31 August 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints concerning the length of the criminal and disciplinary proceedings.   It declared the remainder of the application inadmissible.   7.    The Government's observations were submitted on 19 December 1994 after one extension of the time-limit fixed for this purpose.   The applicant replied on 31 January 1995.   8.    On 24 May 1995 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention.   9.    The text of the Commission's decision on admissibility was sent to the parties on 2 June 1995 and they were invited to submit such further information or observations on the merits as they wished.   The applicant submitted observations on 28 June 1995.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, Acting President           MM.   C.L. ROZAKIS                E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                M.P. PELLONPÄÄ                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL   12.   The text of this Report was adopted on 16 January 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decisions on the admissibility of the application are attached hereto as Appendices I and II.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    Criminal proceedings against the applicant for insulting a      judicial authority   16.   In the course of proceedings he had instituted against certain officials of the Autonomous Organisation for Labour Housing (Aftonomos Organismos Ergatikis Katikias - hereafter OEK) the applicant addressed on 14 April 1986 a letter to the Indictments Chamber of the Court of Appeal (Simvulio Efeton) of Athens in which he claimed that "the proceedings followed by the competent authorities in his various legal actions leave no doubt as to the existence of bias in favour of OEK officials and that the clear purpose of the delay in the proceedings was to ensure that the crimes would be prescribed".   17.   On 25 April 1986 the Public Prosecutor of the Court of Appeal (Isangeleas Efeton) of Athens transmitted the letter to the Public Prosecutor of the First Instance Criminal Court (Isangeleas Plimeliodikon) of Athens considering that the applicant should be charged with insulting the judicial authorities. On 30 April 1986 the Public Prosecutor of the First Instance Criminal Court ordered a preliminary inquiry into the affair.   18.   On 9 October 1986 the applicant appeared before the investigating judge. He denied the charges and informed the judge of his intention to lodge a memorial by 15 October 1986. In the memorial he submitted on 14 October 1986 the applicant requested the examination of a number of witnesses. Four witnesses were examined between 10 November 1986 and 20 November 1986. On 20 January 1987 the investigating judge transmitted the case-file to the Public Prosecutor.   19.   On 20 March 1987 the Public Prosecutor instructed the investigating judge to complete the case-file by ordering the applicant to submit a number of court decisions mentioned in his memorial of 14 October 1986. On 11 June 1987 the applicant submitted these decisions together with another memorial. On 12 June 1987 the investigating judge transmitted these documents to the Public Prosecutor.   20.   On 5 October 1987 the Public Prosecutor charged the applicant with insulting the judicial authorities and fixed a hearing before the three-member First Instance Criminal Court (Trimeles Plimmeliodikio) of Athens for 12 October 1988. On 13 September 1988 a summons was served on the applicant ordering him to appear before the first instance court on 12 October 1988. On 22 September 1988 the applicant appealed against this order asking for his case to be heard by an indictments chamber. On 30 September 1988 the Public Prosecutor of the Athens Court of Appeal rejected the appeal.   21.   On 12 October 1988 the First Instance Criminal Court of Athens found the applicant guilty and sentenced him to five months' imprisonment, a penalty which was immediately converted to a fine of 400 drachmas per day. The applicant appealed immediately.   22.   On 5 November 1990 the Court of Appeal (Efetio) of Athens postponed the hearing of the applicant's appeal. On 25 October 1991 the Court of Appeal allowed the applicant's appeal and pronounced his innocence.   23.   The decision of the court and the record of the hearing were "finalized" (katharographi) on 19 November 1991. They were delivered to the applicant on 28 November 1991. On 9 December 1991 the applicant lodged an application with the Court of Appeal requesting the correction and completion of the record and the decision of the court. On 15 April 1992 the Court rejected the applicant's request as inadmissible on the ground that it had not been submitted within twenty days from the pronouncement of the judgment, i.e. from 25 October 1991.   24.   Under Articles 473 and 506 of the Code of Criminal Procedure, the prosecutor had the right to appeal in cassation against the decision of the Court of Appeal within ten days from the "finalisation" of that decision. However, no such appeal was lodged and the decision of the Court of Appeal became final on 29 November 1991.   B.    Disciplinary proceedings against the applicant   25.   On 2 August 1982 the OEK complained to the Technical Chamber of Greece (Tehniko Epimelitirio Ellados - hereafter TEE) of the various proceedings the applicant had introduced against the OEK and engineers working for it. Acting on this complaint the President of the Disciplinary Council of the TEE instituted disciplinary proceedings against the applicant for improper behaviour. On 14 November 1983 the charges were drawn and a Rapporteur was designated. On 9 March 1984 the Disciplinary Council decided to adjourn the examination of the case, because the President of the OEK, who had been called to testify, did not appear. On 20 November 1984 the Disciplinary Council suspended the applicant from practising his profession for a period of ten months.   26.   The applicant was notified of the decision by letter of the TEE dated 7 June 1985. On 21 June 1985 the applicant appealed to the Highest Disciplinary Council of the TEE. On 14 April and 18 May 1992 the applicant wrote to the TEE requesting information on to the outcome of his appeal. On 22 May 1992 the TEE replied that the applicant's appeal was under review by one of the members of the Highest Disciplinary Council of the TEE acting as rapporteur and that his appeal would be heard upon submission of the latter's report.   27.   By letter of 17 February 1993 the applicant was invited to attend the hearing of 10 March 1993 of the Highest Disciplinary Council of the TEE. On 5 March 1993 the applicant challenged all the members of the council and asked for the Article 6 guarantees to be respected at the hearing.   28.   On 10 March 1993 the Council rejected the applicant's request of 5 March 1993. It allowed, however, his appeal and cleared him of the charges.   29.   On 2 April 1993 the applicant requested the correction of the decision of 10 March 1993. On 26 April 1993 the Highest Disciplinary Council of the TEE addressed a letter to the applicant answering the points raised in his request of April 1993. The decision, however, was not corrected.     III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   30.   The Commission has declared admissible the applicant's complaints relating to the length of the criminal and the disciplinary proceedings against him.   B.    Points at issue   31.   The points at issue are accordingly:        - whether the length of the criminal proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention;        - whether the length of the disciplinary proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards the alleged violation of Article 6 para. 1 (Art. 6-1)      of the Convention in the criminal proceedings   32.   Insofar as relevant Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:        "In the determination of .... any criminal charge against      him, everyone is entitled to a .... hearing within a      reasonable time by a .... tribunal .... ."   33.   The applicant submits that the period to be taken into consideration began on 25 April 1986 and that the criminal charges against him have not yet been determined, because the Court of Appeal unlawfully refused to correct its judgment of 25 October 1991. The applicant argues that the case against him was simple, that he did not contribute in any manner whatsoever to the delays and that the authorities were entirely responsible for the inordinate length of the proceedings. In the course of the two years and five months that elapsed between the moment when he was charged and the first instance hearing nothing but purely routine acts were performed, the completion of the case-file ordered on 20 March 1987 was unnecessary and a period of total inactivity of three years intervened between the first instance and appeal judgments. Domestic procedural rules providing for the finalisation of judgments within eight days were not respected and a further period of total inactivity of over six months intervened before his application for the correction of the judgment of 25 October 1991 was rejected. The applicant finally argues that the proceedings against him should have been concluded more expeditiously given the importance of what was at stake, namely his right to freedom of expression and access to the courts.   34.   The Government submit that there were no significant delays at the pre-trial stage of the proceedings against the applicant. Although the Court of Appeal pronounced its judgment three years after the first instance judgment, the Government argue that this cannot amount to a violation of Article 6 para. 1 (Art. 6-1) of the Convention. The workload of the Court of Appeal is very heavy and the case of the applicant could not have been given priority given its nature and the fact that the applicant was not detained.   35.   The Commission considers that the period to be taken into consideration began at the latest on 9 October 1986, when the applicant first appeared before the investigating judge. It ended on 29 November 1991, when the decision of the Court of Appeal pronouncing the applicant's acquittal became final. Consequently, the proceedings complained of lasted five years one month and 20 days.   36.   The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (see Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).   37.   The Commission notes that the case was not complex and that the applicant's conduct did not significantly contribute to the length of the proceedings. It also notes the existence of a period of inactivity imputable to the State between 12 October 1988, when the applicant appealed against his conviction at first instance, and 25 October 1991, when the Court of Appeal of Athens pronounced his acquittal. It considers that no convincing explanation for this delay has been advanced by the respondent Government. The excessive case-load of the Court of Appeal of Athens does not constitute such an explanation.   38.   The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision in the determination of a criminal charge against him within a reasonable time (cf. Eur. Court H.R., Baggetta judgment of 25 June 1987, Series A no. 119, p. 32, para. 23).   39.   In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.        CONCLUSION   40.   The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.    As regards the alleged violation of Article 6 para. 1 (Art. 6-1)      of the Convention in the disciplinary proceedings   41.   Insofar as relevant Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:        "In the determination of his civil rights and obligations      ....., everyone is entitled to a .... hearing within a      reasonable time by a .... tribunal .... ."   42.   The applicant submits that the proceedings in question involved a determination of his civil rights. He argues that his civil rights have not yet been determined because of the failure of the Higher Disciplinary Council to correct its decision. In the applicant's opinion, the case was simple, he did not contribute in any manner whatsoever to the delays and the authorities were entirely responsible for the inordinate length of the proceedings, having allowed the proceedings to stagnate for a period of nearly eight years between the filing of his appeal and the appeal hearing. The applicant finally argues that the proceedings against him should have been concluded more expeditiously given the importance of what was at stake, namely his right of access to the courts.   43.   The Government submit that Article 6 (Art. 6) of the Convention is not applicable in the present case. The disciplinary organs of the TEE cannot be considered to be tribunals within the meaning of Article 6, (Art. 6) because of the manner in which they are constituted and the lack of publicity of the proceedings. The applicant never risked being suspended from exercising his profession, because the first instance penalty could not be executed pending his appeal, which led eventually to his acquittal. As regards the substance of the complaint, the Government submit that, although the applicant lodged his appeal against his conviction at first instance in June 1985, the Commission has to limit its examination to events which occurred after 19 November 1985. They also argue that the examination of the applicant's appeal was delayed to allow for the conclusion of the various other court proceedings between the applicant and the OEK. The applicant never sought to expedite the hearing of his appeal. In the light of all the above, the Government conclude that the proceedings were reasonable in length.   44.   The Commission notes that in the disciplinary proceedings in question the applicant was threatened with suspension from the exercise of his profession. The outcome of the proceedings was, therefore, directly decisive for the applicant's right to continue working as a civil engineer, which is a civil right (see, mutatis mutandis, Application No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100). It follows that the proceedings involved the determination of a dispute over "civil rights and obligations" and came, therefore, within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   45.   With regard to the period to be considered, the Commission notes that the proceedings began, at the latest, on 14 November 1983, when the disciplinary charges against the applicant were drawn up. The period the Commission is competent ratione temporis to examine began on 20 November 1985, when the 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 the 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 March 1993 when the applicant was cleared of the charges by the Highest Disciplinary Council of the TEE. Consequently, the proceedings complained of lasted seven years, three months and 19 days.   46.   The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   47.   The Commission notes that the case was not complex. It also notes the existence of a period of inactivity between 21 June 1985, when the applicant appealed against his disciplinary conviction at first instance, and 10 March 1993, when he was acquitted by the Highest Disciplinary Council of the TEE. The Commission, being competent ratione temporis to examine the largest part of this period, considers that the inactivity is imputable to the State.   48.   Contrary to what the Government argue, the Commission considers that the applicant cannot be held responsible for the delays on the ground that he never sought to expedite the hearing of his appeal. In accordance with the case-law of the Court, a person facing a "criminal charge" within the meaning of Article 6 (Art. 6) of the Convention is not expected to cooperate actively with the judicial authorities (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 36, para. 82). The same holds true for an accused person in disciplinary proceedings involving the determination of "civil rights and obligations" within the meaning of Article 6 (Art. 6). Moreover, insofar as the Government may be arguing that the applicant has waived his right to a hearing within a reasonable time, the Commission recalls that, in accordance with the case-law of the Court, the waiver of a right guaranteed by the Convention must be established in an unequivocal manner (Eur. Court H.R., Oberschlick judgment of 23 May 1991, Series A no.   204, p. 23, para. 51). This was not, however, the case in the proceedings in question.   49.   The Commission further considers that the respondent Government have advanced no other convincing explanation for the delay before the Highest Disciplinary Council of the TEE. The Government's contention that the proceedings were suspended to await the outcome of other relevant court proceedings cannot be accepted in the absence of a formal decision to this effect by the TEE's disciplinary organs.   50.   The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   51.   In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.        CONCLUSION   52.   The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   E.    Recapitulation   53.   The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in the criminal proceedings against the applicant.   54.   The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in the disciplinary proceedings against the applicant.        Secretary                                 Acting President to the First Chamber                         of the First Chamber     (M.F. BUQUICCHIO)                           (J. LIDDY)