CEDH · CASELAW;REPORTS;ENG — 10 septembre 1997

.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. 28523/95                          Philip Portington                               against                               Greece                      REPORT OF THE COMMISSION                   (adopted on 10 September 1997)                          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. 16-22) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 23-38) . . . . . . . . . . . . . . . . . . . . .4        A.    Complaint declared admissible           (para. 23). . . . . . . . . . . . . . . . . . . . .4        B.    Point at issue           (para. 24). . . . . . . . . . . . . . . . . . . . .4        C.    As regards Article 6 para. 1 of the Convention           (paras. 25-37). . . . . . . . . . . . . . . . . . .4             CONCLUSION           (para. 38). . . . . . . . . . . . . . . . . . . . .6   APPENDIX: DECISION OF THE COMMISSION AS TO           THE ADMISSIBILITY OF THE APPLICATION. . . . . . . .7   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 British citizen, born in 1950 and currently detained in Alikarnassos prison in Greece. He was represented before the Commission by Mr. Andrew McCooey, a solicitor practising in London.   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. V. Kontolaimos, Senior Adviser (Paredros) of the Legal Advisory Council of the State, and Mrs. V. Pelekou, Legal Assistant (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns the length of criminal proceedings against the applicant. The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 11 May 1995 and registered on 12 September 1995.   6.    On 29 November 1995 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 its admissibility and merits.   7.    The Government's observations were submitted on 20 April 1996 after an extension of the time-limit fixed for this purpose. The applicant replied on 26 July 1996, also after an extension of the time- limit.   8.    On 16 October 1996 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 31 October 1996 and they were invited to submit such further information or observations on the merits as they wished. No such observations were submitted by the parties.   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, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL           Mrs. M. HION           Mr.   R. NICOLINI   12.   The text of this Report was adopted on 10 September 1997 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 decision on the admissibility of the application is annexed hereto.   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   16.   In 1986, on a date which has not been specified, while the applicant was crossing the frontier into Greece, he was arrested and charged with murder. The murder was allegedly committed by the applicant, in July 1985, on a previous visit to Greece. The applicant was remanded in custody by the magistrates of Kastoria on a date which has not been specified. On 28 February 1986 he was committed to trial by the Indictments Chamber of the First Instance Criminal Court (Simvulio Plimmelidikion) of Kastoria. His appeal was rejected by the Indictments Chamber of the Court of Appeal (Simvulio Efeton) of Thessaloniki on 27 November 1987.   17.   On 17 February 1988, after a hearing which lasted one day, the Criminal Court of Thessaloniki composed of jurors and professional judges (Mikto Orkoto Dikastirio) convicted the applicant of murder and sentenced him to death. The applicant appealed.   18.   On 6 October 1989 the applicant's appeal came for hearing before the Criminal Court of Appeal of Thessaloniki composed of jurors and professional judges (Mikto Orkoto Efetio). The applicant was represented by legal aid counsel, Mr H. Nine prosecution witnesses were not present. The defence asked for an adjournment on the ground that, while none of the witnesses present had first-hand information about the murder, there was a person in England who knew the case and who should be called to testify. The prosecutor did not agree. The court, by majority, decided to adjourn sine die the case on the ground that it was necessary to hear the testimony of the nine prosecution witnesses who were not present.   19.   The applicant's appeal came for hearing again on 19 April 1991. The applicant asked for the adjournment of the case on the ground that a certain lawyer, Mr G, who had taken over his case a year before was not present at court. Mr H, who was present, stated that he was prepared to defend the applicant. The prosecutor considered that the case should be heard on that day. He had not been able to speak with Mr G on the phone, but the colleagues of Mr G had told him that they knew nothing about the case of the applicant. The court decided to adjourn sine die to enable the applicant to be represented by Mr G.   20.   On 8 February 1993 the applicant appeared again before the appeal court, being represented by another counsel, Mr S. The defence asked for an adjournment on the basis that six prosecution witnesses were absent. The prosecution agreed and the court adjourned sine die. Between 27 May 1993 and 31 December 1993, 16 February 1994 and 17 February 1994, 7 March 1994 and 11 March 1994, 16 March 1994 and 18 March 1994, 21 March 1994 and 13 May 1994 and 16 May 1994 and 30 June 1994 the lawyers were on strike.   21.   A new hearing for the applicant's appeal was fixed for 5 December 1994. The applicant asked for an adjournment on the ground that he wanted to be represented by a certain lawyer whom the British Embassy had found for him and whom he did not name. The prosecutor agreed and the court adjourned sine die.   22.   The applicant's appeal was finally heard on 12 February 1996. The appeal court upheld his conviction but commuted his sentence to life imprisonment. The applicant appealed in cassation.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   23.   The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.    Point at issue   24.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   25.   The relevant part of 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 ..."   26.   The Commission notes that, although the parties have not provided precise information on the date of the applicant's arrest which occurred in the beginning of 1986, the applicant was committed for trial by the Indictments Chamber of the First Instance Criminal Court of Kastoria on 28 February 1986. It also appears that the proceedings before the Court of Cassation are still pending. It follows that the proceedings have lasted to date at least eleven years, six months and thirteen days. However, the Commission notes that the applicant's complaint concerns mainly the delays in the hearing of his appeal which was lodged immediately after his first instance conviction on 17 February 1988 and was rejected by the Criminal Court of Appeal of Thessaloniki on 12 February 1996.   27.   The applicant submits that, notwithstanding the tactics of the defence, the court authorities had a duty to make sure that his appeal should be heard within a reasonable time.   28.   The Government submit that the applicant does not complain about the length of the proceedings until his first instance conviction. In any event, they submit that at that stage of the proceedings there were no delays, since the trial hearing was held two and a half months after his committal. His appeal came for hearing for the first time one and a half year after his conviction. This is the normal waiting period in the Criminal Court of Appeal of Thessaloniki, a court with a very wide geographical jurisdiction.   29.   The Government further submit that the applicant was responsible for all the adjournments of the hearing of his appeal. Each time the hearing of the appeal was adjourned, a number of procedural steps had to be repeated and the witnesses had to be summoned afresh. Moreover, the court administration had been trying to locate an unnamed witness in the United Kingdom. Moreover, the lawyers went on strike on several occasions between 27 May 1993 and 30 June 1994. In any event, the applicant suffered no actual prejudice because of the length of the proceeding, since his conviction was upheld. Death sentences are never executed in Greece.   30.   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 the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).   31.   The Commission must, nevertheless, observe from the outset that a period of approximately eight years for the determination of a criminal appeal is extraordinarily lengthy, especially since the first instance court had imposed on the applicant the death penalty and there had already been a period of inactivity of approximately one year and nine months in the indictment proceedings. The Commission, therefore, considers that very convincing reasons must be advanced by the respondent Government for it to conclude that such a length was reasonable in the circumstances of the particular case.   32.   The Commission considers that the applicant's case was of a certain complexity, given the very nature of the charge, i.e. murder. Moreover, the Government are correct in pointing out that the defence asked for a number of adjournments in the appeal proceedings.   33.   However, the Commission considers that the State authorities were, nevertheless, responsible for several periods of inactivity in the proceedings. Thus, the applicant's appeal came for hearing more than one year and seven months after it had been lodged, a period for which the Government does not offer any explanation other than the case-load of the Criminal Court of Appeal of Thessaloniki.   34.   Moreover, the appeal hearing was adjourned for the first time on 6 October 1989 because nine prosecution witnesses were not present in court. As a result, the Commission considers that the State authorities were responsible for the delay of one year, six months and 13 days which ensued.   35.   The Commission considers that the same holds true for the delays which resulted from the adjournment of 8 February 1993. The reason for this adjournment was again the absence of a number of prosecution witnesses. The Commission notes that the Government submits in this respect that the lawyers went on strike on several occasions between 27 May 1993 and 30 June 1994. However, the Commission need not decide whether the delays occasioned by the lawyers' strike engaged the responsibility of the Greek State, since there is nothing to indicate that the Criminal Court of Appeal of Thessaloniki was obliged to adjourn any hearings in the applicant's case during the above-mentioned strike. The Commission considers that a further period of one year, nine months and 27 days delay resulting from the adjournment of 8 February 1993 must be attributed to the State authorities.   36.   The Commission notes that, as opposed to the above-mentioned adjournments for which the prosecution must be held responsible, the adjournments of 19 April 1991 and 5 December 1994 were ordered to accommodate the applicant's wishes concerning his legal representation. However, by that time the proceedings had already been considerably delayed. Nevertheless, the next hearings were not fixed before 8 February 1993 and 12 February 1996 respectively, i.e. more than one year and nine months and one year and two months later. In these circumstances, the Commission considers that, although the applicant must bear certain responsibility for the delays which his two requests for adjournments caused, the court authorities did not take appropriate measures to ensure that the proceedings were not avoidably delayed (see, mutatis mutandis, Jesso v. Austria, Comm. Report 7.5.86, para. 70, D.R. 50, p. 55).   37.   Having regard to all the above and in the light of the criteria established by case-law, the Commission considers that the length of the proceedings before the Criminal Court of Appeal of Thessaloniki was excessive and failed to meet the "reasonable time" requirement.        CONCLUSION   38.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber