CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 février 2006

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THE FACTS The applicant, Mrs Anthi Gorou, is a Greek national, who was born in 1957 and lives in Athens. She was represented before the Court by Mr   H.   Mylonas, a lawyer practising in Athens. The respondent Government were represented by their Agent's delegates, Mr M. Apessos, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos, Legal Assistant at the State Legal Council. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 2 June 1998 the applicant filed, with the public prosecutor at the Athens Court of First Instance, a criminal complaint for perjury and defamation against S.M., together with an application to join the proceedings as a civil party, but without seeking reparation. On 26   September 2001, when the case was heard before the Athens Criminal Court, the applicant reiterated her civil-party application and adduced her arguments. On the same day, the court delivered its judgment (no. 74941/2001). Finding that the allegations were unsubstantiated, it acquitted S.M. of the two charges laid against him and dismissed the applicant's complaint. On 5 August 2002 this judgment was finalised and entered in the register of the Criminal Court. On 24 September 2002 the applicant requested State Counsel at the Court of Cassation to lodge an appeal on points of law against judgment no.   74941/2001 of the Athens Criminal Court. On 27 September 2002 the applicant's request was dismissed by State Counsel at the Court of Cassation, who endorsed the application itself with the handwritten comment: “there is no legal or well-founded ground of appeal to the Court of Cassation”. B.     Relevant domestic law Article 24 of the Code on Judicial Organisation and the Status of Judicial Organs ( Κώδικας οργανισμού δικαστηρίων και κατάστασης δικαστικών λειτουργών ) provides as follows: “1. State Counsel shall be a judicial authority independent from the courts and from the executive. 2. He shall act in a unitarian and uniform manner, with the objectives of maintaining legality, protecting the citizen and ensuring compliance with rules of public policy. ... 3. In the performance of his duties and in the expression of his opinion [State Counsel] shall act without constraint, abiding by the law and by his own conscience. ...” At the material time the Code of Criminal Procedure contained the following relevant provisions: Article 139 “Judgments, orders of the chamber of judges, and orders of the investigating judge or of the public prosecutor shall give specific and precise reasons ... ... Even where it is not required by a specific provision, all judgments and orders shall include reasoning, whether they are final or interlocutory and whether or not they depend on the discretion of the judge hearing the case.” Article 505 § 2 “State Counsel at the Court of Cassation shall be entitled to appeal on points of law against any decision within the time-limit provided for in Article 479 § 2 ...” COMPLAINTS 1. The applicant complained under Article 6 § 1 of the Convention of a lack of reasoning in both judgment no. 74941/01 of the Athens Criminal Court and the decision whereby State Counsel at the Court of Cassation dismissed her request for an appeal on points of law against that judgment. 2. Under that same Article she further complained about the length of the proceedings in question. THE LAW A. Objections to the admissibility of the application 1. Objection to admissibility on grounds of incompatibility ratione materiae The Government pleaded the inadmissibility of the application, arguing that it was incompatible ratione materiae with the provisions of the Convention. They contended that the outcome of the impugned proceedings had not been directly decisive of the applicant's civil rights, as she had applied to join the proceedings as a civil party but without seeking compensation. They added that, if State Counsel had granted her request, the applicant would admittedly have been able to apply for civil-party status before the Court of Cassation, but as she had not sought reparation, the examination of her appeal by that high court of civil jurisdiction would not have concerned a request for compensation but rather the guilt of the accused. The Government thus concluded that the dispute did not concern a civil right within the meaning of Article 6 § 1 of the Convention. Referring to the judgment in Perez v. France [GC] (no.   47287/99, ECHR 2004 ‑ I), the applicant argued that Article 6 § 1 of the Convention was applicable in the present case. The Court reiterates that the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim's exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez , cited above, and Schwarkmann v. France , no.   52621/99, §   41, 8 February 2005). The Court observes that the present case partly concerns defamation proceedings. It thus relates to the right to a good reputation, of which the “civil” nature is unquestionable. Accordingly, Article 6 § 1 of the Convention is applicable, even though the applicant did not seek reparation when applying for civil-party status (see Diamantides v. Greece (dec.), no.   71563/01, 20 November 2003). It is therefore appropriate to dismiss the Government's plea of inadmissibility on grounds of incompatibility ratione materiae . 2. Objection to the admissibility of the application for being out of time The Government argued that the application had been lodged out of time. They noted that judgment no. 74941/2001 of the Athens Criminal Court had been finalised on 5 August 2002 and that the decision of State Counsel at the Court of Cassation in response to the request for an appeal on points of law against that judgment had been given on 27 September 2002, that is to say more than six months before 10 April 2003, the date on which the Court received the application form. The applicant argued, for her part, that her application should be regarded as having been sent to the Court on 22 January 2003, which was less than six months after 27 September 2002, the date on which State Counsel at the Court of Cassation had dismissed her request for an appeal to that high court. The Court considers that the application was lodged on 23 January 2003, the date on which the applicant sent the Court an initial letter in which she set out sufficiently the object of the application (see Kavakçı v. Turkey (dec.), no. 71907/01, 30 June 2005). It follows that the application was not lodged out of time. Accordingly, the Government's objection should be dismissed. B. The complaints concerning the fairness of the proceedings The applicant complained about the lack of reasoning, both in judgment no. 74941/01, in which the Athens Criminal Court had acquitted S.M. and in the refusal by State Counsel at the Court of Cassation to lodge an appeal against that decision. She relied on Article 6 § 1 of the Convention, of which the relevant parts read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.” 1. Reasoning of judgment no. 74941/01 of the Athens Criminal Court The Court reiterates that, according to its established case-law, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation by national law (see García Ruiz v. Spain [GC], no.   30544/96, §   28, ECHR 1999 ‑ I). With specific regard to the reasoning of judgments, the Court reiterates that, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see, among other authorities, García Ruiz , cited above, § 26). In the light of the foregoing, the Court considers that in its judgment no.   74941/01 the Athens Criminal Court responded appropriately to the arguments before it. The Court notes more specifically that the applicant was able to adduce before that court all the evidence that she deemed relevant for the defence of her interests and that this evidence was effectively examined by the competent judges. It follows that this part of the application should be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. Reasoning given by State Counsel at the Court of Cassation in refusing to lodge an appeal on points of law against the Criminal Court's decision (a) Objection to admissibility for failure to exhaust domestic remedies The Government pleaded failure to exhaust domestic remedies. They pointed out that the applicant had applied for civil-party status in criminal proceedings without seeking reparation. Accordingly, an action for damages in the civil courts was the only means for her to obtain compensation. However, she had apparently never brought any such action. The applicant contended, for her part, that the Government's arguments were not pertinent. In her submission, the object of the present case was not an action for damages in the civil courts but her intervention as civil party in criminal proceedings. The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention requires applicants – using the legal remedies available in domestic law in so far as they are effective and adequate – to afford Contracting States the possibility of putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Fressoz and Roire v. France [GC], no.   29183/95, § 37, ECHR 1999-I). The only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Dalia v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38). In the instant case, the Court notes that the applicant's complaint relates to the lack of reasoning in the decision of State Counsel at the Court of Cassation. However, the action for damages referred to by the Government could not have provided redress for the violation alleged in the application, but would only have enabled the applicant to obtain compensation. It was not therefore a remedy that should have been used for the purposes of Article 35 § 1 of the Convention. Consequently, the Government's objection on the ground of non-exhaustion of domestic remedies cannot be allowed. (b) Merits of the complaint The Government argued that the task of State Counsel was confined to representing the public and social interest in the context of criminal proceedings. They added that the decision on the appropriateness of allowing the applicant's request for an appeal to be lodged on points of law had fallen exclusively within State Counsel's discretion. The applicant observed that, according to established practice in domestic law, a civil party could lodge an appeal on points of law through the intermediary of State Counsel at the Court of Cassation. Referring to the Anagnostopoulos v. Greece judgment (no.   54589/00, 3 April 2003), she argued that when the domestic legal order offered a remedy to an individual litigant, the State had an obligation to ensure that the latter enjoyed the fundamental guarantees of Article 6. In the present case, however, the total lack of reasoning in the decision of State Counsel at the Court of Cassation had precluded any possibility of verifying that the decision was not improper or arbitrary. Having regard to all the parties' submissions, the Court finds that this complaint raises serious questions of fact and law, the determination of which cannot be made at this stage but requires an examination of the merits. The application thus cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. C. The complaint about the length of the proceedings The applicant alleged that the length of the proceedings had breached the “reasonable time” principle enshrined in Article 6 § 1 of the Convention. The Government considered that the impugned proceedings had begun on 26 September 2001, the date on which the applicant had applied for civil-party status in the proceedings before the Athens Criminal Court, and that it had ended with the acquittal of S.M. on the same day. In their submission, there was thus no problem with the length of the proceedings in the present case. The applicant submitted, for her part, that the impugned proceedings had begun on 2 June 1998, the date on which she had filed a criminal complaint against S.M. with a civil-party application. She noted that, according to the Court's case-law in such matters, a period of over four years for one level of jurisdiction was unreasonable. Having regard to all the parties' submissions, the Court finds that this complaint raises serious questions of fact and law, the determination of which cannot be made at this stage but requires an examination of the merits. The application thus cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court by a majority, Declares admissible, without prejudging the merits of the case, the applicant's complaints concerning the lack of reasoning in the decision of State Counsel at the Court of Cassation and the length of the impugned proceedings; Declares the remainder of the application inadmissible.     S. Nielsen   L. Loucaides   Registrar   President