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FIRST
SECTION
CASE OF GETIMIS v. GREECE
(Application
no. 58040/09)
JUDGMENT
STRASBOURG
10
January 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Getimis v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Elisabeth
Steiner,
President,
Khanlar
Hajiyev,
Julia
Laffranque,
judges,
and
André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 58040/09) against the
Hellenic Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
Greek national, Mr Panagiotis Getimis (“the applicant”),
on 13 October 2009.
- The
applicant was represented by Mr C. Mylonopoulos, a lawyer practising
in Athens. The Greek Government (“the
Government”) were represented by their Agent’s delegates,
Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State
Legal Council.
- On
2 September 2010 the
President of the First Section decided to give notice of the
application to the Government. In accordance with Protocol No. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Athens.
- On
4 March 1999 criminal complaints in rem were brought with the
Athens First Instance Prosecutor by the Panteion University of Social
and Political Sciences for fraud,
forgery and misappropriation of property related offences.
- On
5 July 2004 charges were brought against the applicant for the
abovementioned offences.
- With
indictment no. 2284/2005 of the Athens Prosecutor of Appeal the
applicant and seventeen other defendants were referred to trial. The
case was set for hearing on 21 November 2005.
- For
the period between 21 November 2005 and 6
June 2007, when the first instance proceedings were concluded, the
Athens First Instance Criminal Court held two hundred and nine
hearings. During this period ninety four witnesses were examined and
more than one thousand and hundred documents were read.
-
By a judgment of 6 June 2007 the Athens First Instance Criminal Court
found the applicant guilty and sentenced him to sixteen years of
imprisonment (judgment no. 2444/2007).
- On
the same date the applicant lodged an
appeal with the Athens Criminal Court of Appeal challenging the
court’s findings and its evaluation of the evidence.
- On
4 November 2009 judgment no. 2444/2007 was finalised and a
written copy of the decision and the minutes of the proceedings was
available.
- The
appeal hearing, which was originally set for 19 November 2010,
was subsequently adjourned to 21 February 2011, as two of the
co-defendants of the applicant were admitted to a public hospital for
treatment.
- As
it transpires from the case file, these proceedings are still
pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any
criminal charge against him everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 5 July 2004, when
criminal complaints were brought against the applicant and has not
yet ended as, according to the case file, the proceedings are still
pending before the Athens Criminal Court of Appeal. It has thus
lasted, to date, more than seven years and four months for two levels
of jurisdiction.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II.).
- The
Court notes that the proceedings are still pending and have, to date,
lasted more than seven years for two levels of jurisdiction. It also
acknowledges that the case is complex as it involved charges against
eighteen persons, questioning of a number of witnesses and examining
a large volume of documents.
- However,
the Court observes that there is no indication that the applicant
demanded unjustified adjournments or that in any way his conduct
contributed to the prolonged length of the proceedings. Further, the
adjournment requested by two co-defendants of the applicant during
the appellate proceedings should not be attributed to him.
- Moreover,
the Court opines that a number of delays in the proceedings before
the Court of Appeal – where the case is currently pending for
more than four years – were at least in part attributable to
the authorities. In particular, the
Court notes that, even though the applicant lodged his appeal
on the same date of the delivery of the first instance judgment, this
became final and a copy was available to him only two years and five
months later. This resulted in delaying also the set of a hearing
regarding the appellate proceedings. Further, as it transpires from
the case file, the aforementioned proceedings are still pending and
there is no indication whether a hearing has been held. Thus, the
Court observes that national courts’ handling of the case did
not facilitate its timely completion. In the Court’s opinion,
the length of the proceedings can be explained by the failure of the
domestic courts to deal with the case diligently (see Gümüÿten
v. Turkey, no. 47116/99, §§ 24-26, 30 November
2004).
- In
view of the above, having regard to its case-law on the subject, the
overall duration of the proceedings and the delays attributable to
the authorities, the Court considers that in the instant case their
length failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
23. The
applicant further complained of the fact that in Greece there was no
court to which application could be made to complain of the excessive
length of proceedings. He relied on Article 13 of the
Convention which provides as follows:
“Everyone whose rights and freedoms as set forth
in the Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see
Konti-Arvaniti v. Greece, no. 53401/99, §§
29-30, 10 April 2003 and Tsoukalas v. Greece, no. 12286/08,
§§ 37-43, 22 July 2010) and sees no reason to reach a
different conclusion in the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicant could have obtained a
ruling upholding his right to have his case heard within a reasonable
time, as set forth in Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant, without specifying his claim, alleged that he suffered
pecuniary damage as, because of the deprivation of his academic
duties, he suffered a loss of resources and income from research
activities. Further, he claimed 200,000 euros (EUR) in respect of
non-pecuniary damage. He argued that, because of the protracted
length of the proceedings, his professional activities were affected
and that the delay had also a negative impact on his personal and
social life. Moreover, he claimed that during all the period that the
proceedings were pending, the case had attracted the attention of the
press.
- The
Government contested the applicant’s claim for pecuniary
damage. They stressed that the applicant’s claim was
unsubstantiated as no specific amount had been indicated and his
allegation was not connected with the length of the proceedings
before the domestic courts. Further, regarding the applicant’s
claim for non-pecuniary damage, they considered the amount requested
exorbitant and submitted that the finding of a violation would
constitute sufficient just satisfaction.
- The
Court considers that the applicant did not specify his claim for
pecuniary damage. Accordingly, there is no call to award him any sum
on that account. On the other hand, ruling on an equitable basis and
taking into account all the circumstances of the case, the Court
awards him EUR 5,000 in respect of the non-pecuniary damage
suffered because of the length of the proceedings, plus any tax that
may be chargeable on this amount.
B. Costs and expenses
- The
applicant alleged that he should be awarded a sum for costs and
expenses incurred before the domestic courts and for those incurred
before the Court. He did not specify his claim and did not produce
any supporting documents.
- The
Government submitted that the applicant’s claim was
unsubstantiated and therefore that it had to be rejected.
- According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually and necessarily incurred and were also reasonable as to
quantum (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000 XI). Furthermore, legal costs are only recoverable in so
far as they relate to the violation found (see Beyeler
v. Italy (just satisfaction) [GC],
no. 33202/96, § 27, 28 May 2002).
- In
the present case, the Court notes that the applicant had failed to
specify his claim for costs and expenses. He has not produced any
documents on the basis of which the Court can assess precisely the
costs and expenses actually incurred in the proceedings before
the domestic courts and those incurred before the Court and, further,
examine whether these were actually related to the violation found.
- Regard
being had to the above-mentioned criteria, the Court considers it
reasonable to reject the applicant’s claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
5,000 (five thousand euros), in respect of non-pecuniary damage, plus
any tax that may be chargeable on this amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Elisabeth Steiner
Deputy
Registrar President
