CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 septembre 2004

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Lorenzen , President ,   Mr   C.L. Rozakis ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mrs   E. Steiner ,   Mr   K. Hajiyev, judges , and   Mr   S. Quesada , Deputy Section Registrar , Having regard to the above application lodged on 19 December 2002, Having deliberated, decides as follows: THE FACTS The applicants, Mr Georgios Andreadis, Alexandros Andreadis and Petros Andreadis, are Greek nationals, born in 1941, 1944 and 1949 and living respectively in Athens. They are represented before the Court by Norton Rose, lawyers practising in London. The facts of the case, as submitted by the applicants, may be summarised as follows. In June 1997, the Greek State filed criminal charges against the applicants alleging fraud. The case was referred to an investigating judge ( anakritis ). On 25 August 1997 the State declared to the investigating judge that it wished to join the proceedings as a third party seeking compensation (“partie civile”). On 14 September 1998, the investigating judge returned the file to the Public Prosecutor with his findings that no sufficient and serious indications of guilt emerged to establish the objective and subjective existence of the offence of fraud. Discharge of the case was recommended, by the issue of formal summonses for refusal. The Public Prosecutor to whom the file was returned raised a series of questions and sent the file back to the second investigating judge. On 17 February 1999 the second investigating judge returned the file to the Public Prosecutor concluding that he was bound to issue formal summonses, stating that no indications emerged that the accused committed the punishable offences attributed to them of fraud against the State. In June 1999 the Public Prosecutor remitted the file for the third time to the investigating judge for further investigation. On 25 October 1999 the third Report of the investigating judge was delivered to the Public Prosecutor, once again confirming that no grounds existed for prosecution. The investigating judge concluded that he was bound to issue formal summonses dismissing the case. The Public Prosecutor remitted for a fourth time the file to the investigating judge. On 3 December 1999 the investigating judge refused to carry out the instructions stating that all the inquiries ordered under previous order have already been made. In view of the disagreement between the investigating judge ( anakritis) and the Public Prosecutor, the matter was remitted to the Indictment Division of the First Instance Criminal Court of Athens ( symvoulio plimmeliodikwn ) to consider whether yet further investigation should take place. On 22 June 2000 the investigation into the allegations of fraud against the applicants was concluded by the issue of formal summonses. No charges were brought against them. On 16 October 2000 the Prosecutor submitted the case to the Indictment Division of the Athens Court of Appeal ( symvoulio efetwn ). On 23 November 2000 the Indictment Division reached its decision. It ordered that a further investigation should be carried out by the investigating judge, and furthermore, that the applicants should be called upon to submit their defence. In particular the Indictment Division held that: “Beyond Stratis Andreadis, it is certain that all three of his sons, due to their participation in STRAN as well as in the COMMERCIAL BANK, as set out above, were fully aware of the aforesaid repayment by STRAN of the loan of FINANCIERE and of the interest thereon, and of the non-existence of a claim of STRAN against the State in relation to this loan   (...) and it cannot seriously be argued that it is possible for them to have been ignorant of the repayment of such a large sum. (...) it follows that there are relevant indications that the accused, Georgios, Alexandros and Petros Andreadis committed the act they have been charged with (...) Following this, the carrying out of a further investigation by the same investigating judge must be ordered so that charges can be recited against them for the act of such incitement and so that they can be called upon to enter their defence”. Under Greek legislation, the applicants had no right of appeal against the Council's decision. Had the Indictment Division decided that the criminal investigations against them should be terminated, the State would have had a right of appeal. The applicants lodged a petition with the Public Prosecutor of the Supreme Court asking him, to exercise his absolute discretion and apply to the Supreme Court for a reversal of the decision. On 27 February 2001, the Deputy Prosecutor of the Supreme Court accepted the petition for reversal. On 21 March 2002 the fifth criminal division of the Supreme Court quashed the Indictment Division's decision by a majority of two to one. However, because the third judge disagreed with this result, the matter was referred to the Ordinary Plenary Assembly of the Supreme Court. The appeal had been listed to be heard on 16 May 2002. On 26 June 2002 the Ordinary Plenary Assembly dismissed the petition for the revocation of the Indictment Division's order, by a majority of fifteen to five. The majority held that the Indictment Division of the Athens Court of Appeal was entitled to conclude that there was sufficient circumstantial evidence of guilt to require refutation by the applicants in the form of a substantive defence. Moreover, the majority dismissed the assertions that, according to the applicants, the Indictment Division made categorical assertions of their guilt. As a result of the Plenary Assembly's decision, the case file was returned to a third investigating magistrate to implement the order of the Council of Court of Appeal. In November 2002 all three applicants appeared before the investigating judge and were formally charged. COMPLAINTS 1.     The applicants complain under Article 6 § 1 of the Convention about the excessive length of the investigation proceedings brought against them. 2.     They also complain under Article 6 §§ 1 and 2 of the Convention that their right to a fair hearing has been violated, that the Indictment Division of the Athens Court of Appeal has publicly expressed its “certainty” of the applicants' guilt and, finally, that they have suffered discrimination in the enjoyment of their rights under Article 6 of the Convention contrary to Article 14 of the Convention. THE LAW 1.     The applicants complain that the excessive length of criminal proceedings, amounting to more than six years for the investigation of the allegations against them, violates the reasonable time requirement of Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law “ The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 2.     Under the same Convention provision, the applicants next complain about the fairness of the domestic proceedings. In this connection, the Court notes that the applicants raise a number of points. (a)     They complain that the criminal proceedings against them have been conducted in a manner which violates the principle of equality of arms. (b)     They allege that the criminal proceedings brought against them were used as a form of harassment or persecution for a collateral purpose. (c)     Furthermore, they complain of the lack of independence and impartiality on the part of the prosecuting authorities. Moreover, the applicants complain that the reasoning of the Indictment Division of the Athens Court of Appeal disregarded the principle of presumption of innocence since it expressed its “certainty” of the applicants' guilt of very serious crimes in unqualified and categorical terms. They invoke Article 6 § 2 of the Convention which provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Finally, the applicants allege that they suffered discrimination in the enjoyment of their rights under Article 6 contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Court recalls that the fairness of criminal proceedings must be examined on the basis of the proceedings as a whole ( Girdauskas v.   Lithuania , no.   70661/01, §   22, 11   December 2003). The Court notes that the trial in the present case is still pending. Accordingly, it would be premature for the Court to deal with the applicants' complaints under Article 6 until the domestic courts have finally examined the criminal offences alleged against him. In these circumstances, the Court concludes that the applicants cannot at this stage claim to be victims of a violation of the above provisions in regard to this aspect of the case. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicants' complaints concerning the length of proceedings under Article 6 § 1 of the Convention; Declares the remainder of the application inadmissible.   Santiago Quesada   Peer Lorenzen Deputy Registrar   President