CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 35973/97                       by Fabio BEVILACQUA                       against Greece          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM    M.P. PELLONPÄÄ, President                 N. BRATZA                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            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 17 January 1997 by Fabio BEVILACQUA against Greece and registered on 7 May 1997 under file No. 35973/97;        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      1 December 1997 and the observations in reply submitted by the      applicant on 10 February 1998;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian national born in 1947. He is a marketing consultant and resides in Ancona.        The facts of the case, as they have been submitted by the parties, can be summarised as follows:   A.    Particular circumstances of the case        On 12 August 1993 the applicant bought a house with a plot of land on the island of Paxos in Greece. However, part of this plot of land is claimed by a local family.        On 7 January 1994 the public prosecutor (isangeleas) of Corfu ordered the Paxos police to examine the applicant's complaints against Mr. L.B. and Mr. K.B., members of the family in question.        On 5 May 1994 the applicant lodged with the public prosecutor of Corfu a criminal complaint against L.B. and K.B for having illegally entered his property, threatened and assaulted him and occupied part of his land. He stated that he wished to join the proceedings as partie civile (politikos enagon) and requested 500,000 drachmas by way of pecuniary and non-pecuniary damages.        On 25 May 1994 the applicant contacted the Greek Embassy in Rome to inquire about the state of the proceedings. On 7 June 1994 the Embassy forwarded the applicant's request for information to the Ministry of Foreign Affairs, which apparently contacted the Ministry of Justice. On 11 July 1994 the Ministry of Justice requested information from the public prosecutor of Corfu who replied on 27 March 1995 that criminal proceedings had been instituted and that there would be a hearing before the single-member first instance criminal court (monomeles plimmeliodikio) of Paxos on 27 September 1995.        The hearing of 27 September 1995 was adjourned until 26 June 1996 because the accused's counsel could not appear. The hearing of 26 June 1996 was also adjourned at the accused's request. A new hearing was fixed for 24 September 1997 which the applicant was summoned to attend as a witness. That hearing was also adjourned because the applicant and another witness were not present.        The case was finally heard on 27 September 1997 when the accused were acquitted. The Government claim that the applicant was not present at that hearing, while the applicant claims that he was.   B.    Relevant domestic law        Article 68 of the Code of Criminal Procedure provides as follows:        "1.    Persons who have the right to take part in the proceedings      as parties civiles can pursue their claims for damages before the      criminal court ... if they serve a writ on the accused according      to the rules of civil procedure ...        2.     Persons who have the right under the Civil Code to receive      compensation for moral damage can submit their claim to the      criminal court before the taking of evidence begins even if they      have not previously served a writ".   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention of the length of the proceedings.   2.    He also complains under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1 of the failure of the Greek authorities to protect his interests.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 January 1997 and registered on 7 May 1997.        On 10 September 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 1 December 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 10 February 1998.   THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the proceedings.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:        "In the determination of his civil rights and obligations or 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 Article 6 para. 1 (Art. 6-1) of the Convention does not apply to the proceedings in question. Although the applicant declared that he wished to join the proceedings as partie civile, he never served his claim on the accused, as he was required to do under Article 68 para. 1 of the Code of Criminal Procedure. As a result, the criminal court could not examine his civil claim. Moreover, despite the accused's acquittal, the applicant remained free to re-introduce his claim before the civil courts.        The applicant submits that the proceedings were "civil" in character, since the reason why the court acquitted the accused was that it considered that they were right in claiming part of the applicant's plot of land.        The Commission notes that under with Article 68 para. 1 of the Code of Criminal Procedure persons who have lodged a criminal complaint become parties civiles after they have served their claims on the accused in accordance with the relevant civil procedure rules. The Government claim that the applicant never did that and the applicant does not appear to dispute this fact. Moreover, the Commission notes that, although the applicant claims that he was present at the hearing of 27 September 1997, there is no indication that he submitted his civil claim before the taking of evidence began. In these circumstances, the Commission considers that the criminal court never acquired the competence to pronounce on the applicant's civil claim. As a result, the proceedings did not involve a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf., mutatis mutandis, Eur. Court HR, Hamer v. France judgment of 7 August 1996, Reports 1996-III, no. 13, p. 1044, para. 78). Neither did they involve a criminal charge against the applicant.        In the light of all the above, the Commission considers that Article 6 para. 1 (Art. 6-1) is not applicable to the proceedings in question. This part of the application is, therefore, incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2).   2.    The applicant also complains under Articles 5 and 8 (Art. 5, 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) of the failure of the Greek authorities to protect his interests. The applicant claims that he cannot obtain redress from the Greek legal system.        The Government submit that the applicant could have used a series of other remedies put at his disposal by the Greek legal order to protect his interests against L.B. and K.B.        The Commission considers that it should limit its examination to the criminal proceedings instituted at the applicant's initiative against L.B. and K.B.        In this connection, the Commission recalls that, in accordance with its case-law, the term "liberty and security of person" in Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole and, in view of its context, as referring only to physical liberty and security. "Liberty of person" thus means freedom from arrest and detention and "security of a person" the protection against arbitrary interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76, Yearbook 20, p. 102). The applicant has not been deprived of his liberty. As a result, no appearance of a violation of Article 5 para. 1 (Art. 5-1) is disclosed.        Moreover, the Commission notes that, even assuming that Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) require a system of criminal protection of private property against interferences similar to those complained of by the applicant, the Greek legal order provided for the possibility of lodging a criminal complaint. The applicant used this possibility. Although the proceedings resulted in the accused persons' acquittal, this cannot involve in itself a violation of the above-mentioned provisions of the Convention and of Protocol No. 1, which do not guarantee a particular outcome. Neither has the applicant submitted anything which could lead to a different conclusion in the particular circumstances of the case. As a result, no appearance of a violation of Article 8 (Art. 8) of the Convention or Article 1 of Protocol No. 1 (P1-1) is disclosed.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                    President to the First Chamber                         of the First Chamber