CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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 }                         AS TO THE ADMISSIBILITY OF                           Application No. 32857/96                       by Nicholas STAMOULAKATOS                       against Greece        The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, 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                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 25 August 1996 by Nicholas STAMOULAKATOS against Greece and registered on 3 September 1996 under file No. 32857/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      24 September 1997 and the observations in reply submitted by the      applicant on 13 October 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Greek citizen, born in 1936. He currently resides in London.        The facts of the case, as they have been submitted by the parties, can be summarised as follows:        On 15 November 1993 the public prosecutor of Athens instituted criminal proceedings against the applicant for perjury and false accusation and summoned him to appear before the three-member first instance criminal court (trimeles plimmeliodikio) of Athens on 26 April 1994 (summons - klitirio thespisma No. 113908/93). The Government submit that the summons were served on the applicant in accordance with the law, a fact which the applicant does not dispute.        On 26 April 1994 the three-member first instance criminal court of Athens decided to adjourn the proceedings so that three witnesses could be summoned by the prosecutor (decision No. 3553/94). On 21 November 1994 the same court decided that the case could not be heard because the applicant had not been summoned in accordance with the law. The court adjourned the proceedings (decision No. 74964/94). Further adjournments were ordered on 25 September 1995 and 14 June 1996 again because the applicant had not been lawfully summoned (decisions Nos. 64096/95 and 46053/96).        On 12 February 1997 the three-member first instance criminal court of Athens tried the applicant in his absence and found him guilty. The court imposed on him a sentence of ten months imprisonment, which could be converted into a fine. The court also decided that, if the applicant appealed, the sentence would be suspended.   COMPLAINTS   1.    The applicant complains under Articles 3, 5, 6 para. 1, 13 and 14 of the Convention about the length of the proceedings.   2.    The applicant also complains under Article 10 of the Convention that the proceedings were instituted against him because of certain opinions he had expressed.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on   25 August 1996 and registered on 3 September 1996.        On 21 May 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 24 September 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 13 October 1997.   THE LAW   1.    The applicant complains under Articles 3, 5, 6 para. 1, 13 and 14 (Art. 3, 5, 6-1, 13, 14) of the Convention about the length of the proceedings. He also complains under Article 10 (Art. 10) of the Convention that the proceedings were instituted against him because of certain opinions he had expressed.        The Government submit that the application is an abuse of the right of petition, because the applicant has used gratuitously provocative and insulting language vis-à-vis the Greek justice system. In particular, they refer to the use of the terms "ridiculous masonic justice", "a real Mafia called Greek justice", "ridiculous people" and to the fact that the applicant has called the Athens prosecutor "a secret spy of Masonry".        In his observations in reply, the applicant has stated that he withdraws these and any other abusive statements which cannot be considered a legitimate exercise of the right of freedom of expression.        Having regard to the interpretation given to the right of freedom of expression by the Convention organs, the Commission considers that the applicant's statements to which the respondent Government makes reference do not amount to a legitimate exercise of the right of freedom of expression (see, inter alia, Eur. Court HR, Barfod v. Denmark judgment of 22 February 1989, Series A no. 149). In his observations in reply the applicant has stated that he wishes to withdraw any statements which do not amount to a legitimate exercise of the right of freedom of expression. It follows that these statements have been withdrawn by the applicant.        In these circumstances, the Commission considers that the case cannot be rejected as an abuse of the right of petition under Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The Commission will next examine the applicant's complaint regarding the length of the proceedings. The Commission notes that the applicant has not explained the reasons for which he invokes Articles 3, 5, 13 and 14 (Art. 3, 5, 13, 14) of the Convention in connection with the length of the proceedings. The Commission, therefore, considers that the complaint concerning the length should be only considered under Article 6 para. 1 (Art. 6-1) of the Convention, which 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 established by law."        The Government submit that the State authorities are not responsible for the first adjournment, which had to be ordered because three important witnesses were not present in court. They also submit that the applicant was probably aware of the hearing of 14 June 1996. They refer in this connection to a letter addressed on 12 January 1996 to the Greek Ministry of Justice by the United Kingdom Central Authority for Mutual Legal Assistance in Criminal Matters, which confirms that summons issued by the Athens court were sent to the applicant to the address provided by the Greek Ministry of Justice by recorded post on 14 December 1995. Finally, the Government argue that the applicant, being aware of the date of the first hearing, could have rang the secretariat of the court to get informed about further developments in the case. Referring to the applicant's conduct and to the fact that an extraordinary procedure had to be applied for summoning the applicant, the Government contend that there were no unreasonable delays in the case.        The applicant makes no submissions in reply.        In the light of the parties' observations, the Commission considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. It cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   3.    Finally, the applicant complains under Article 10 (Art. 10) of the Convention that the proceedings were instituted against him because of certain opinions he had expressed.        The Commission notes that the applicant has been prosecuted for and convicted of perjury and false accusation. However, the applicant can appeal against his conviction and the domestic court has ordered that such an appeal will suspend the execution of the sentence.        It follows that the applicant has not exhausted domestic remedies, in accordance with Article 26 (Art. 6) of the Convention, and that this part of the application must be rejected in accordance with its Article 27 para. 3 (Art. 27-3).        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint concerning the length of the criminal      proceedings against him;        DECLARES INADMISSIBLE the remainder of the application.        M.F. BUQUICCHIO                              J. LIDDY         Secretary                                 President    to the First Chamber                      of the First Chamber