CASE OF GOROU v. GREECE (No. 2)
(Application no. 12686/03)
20 March 2009
This judgment is final but may be subject to editorial revision.
In the case of Gorou v. Greece (no. 2),
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Işıl Karakaş, judges,
and Vincent Berger, Jurisconsult,
Having deliberated in private on 11 June 2008 and on 4 February 2009,
Delivers the following judgment, which was adopted on the last-mentioned date:
There appeared before the Court:
(a) for the Government
Mr K. Georgiadis, Adviser
at the State Legal Council, Agent's delegate,
Mr I. Bakopoulos, Legal Assistant
at the State Legal Council, counsel.
(b) for the applicant
Mr I. Mylonas, Lawyer, counsel.
The Court heard addresses by Mr Mylonas and Mr Georgiadis.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
“(1) The present Code specifies the instances in which a judge gives a decision or makes an order.
Orders shall also be made by the public prosecutor where he has a statutory obligation to take measures during a judicial investigation in a case or when hearings have been adjourned by the court ...”
“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.”
“Remedies may be used solely by persons who are expressly afforded such right by law ...”
“(1) ... an appeal on points of law may be lodged (a) by the defendant; (b) by a third party whose civil liability has been engaged in the conviction judgment and who has acknowledged such liability; (c) by a civil party named in the conviction judgment, but only in respect of that part of the judgment in which he or she is awarded damages or is recognised as being entitled to compensation, or in which his or her claims have been dismissed as being devoid of legal basis; (d) by the public prosecutor.
The Principal Public Prosecutor 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 ...”
“The quashing of an acquittal on points of law may be sought: (a) by the defendant, if he or she has been acquitted for expressing remorse; (b) by the principal public prosecutor ... if the acquittal has been the consequence of a misinterpretation of a substantive criminal-law provision within the meaning of Article 510 of the Code of Criminal Procedure; (c) by the person who laid the charge or the complainant, if he or she has been ordered to pay damages and costs.”
“(1) ... The Public Prosecutor at the Court of Cassation shall summon the appellant in cassation and other parties to the proceedings, by a summons served on them in accordance with Articles 155 to 161 and within the time-limit provided for in Article 166, before the Court of Cassation or its plenary assembly ...
(2) Where the appeal on points of law has been lodged by a public prosecutor, he shall not be summoned but shall be represented by the public prosecutor at the Court of Cassation.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE FAIRNESS OF THE PROCEEDINGS
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
A. The Chamber judgment
B. The parties' submissions
1. Applicability ratione materiae of Article 6 § 1
First, they argued that the applicant's behaviour throughout the criminal proceedings showed that her purpose in joining the proceedings as a civil party was primarily to obtain the defendant's conviction. The Government noted in this connection that, before the Athens Criminal Court, the applicant had merely claimed the symbolic amount of 1,000 drachmas (about three euros), without prejudice to the satisfaction of all her civil rights before the civil courts. The Government added that, in acquitting the defendant, the Athens Criminal Court had refused to decide on the applicant's civil claims. Accordingly, the sole purpose of her request to the public prosecutor at the Court of Cassation was to support the criminal charge and to have the Criminal Court's acquittal reversed, not to assert any civil right before a criminal court. For the Government, those facts left no doubt that the applicant had decided to join the proceedings as a civil party primarily in order to obtain the defendant's conviction and not for the protection or reparation of her civil rights. Referring to the case of Perez v. France ([GC], no. 47287/99, §§ 70-71, ECHR 2004 I), they observed that the Convention did not guarantee the right to “private revenge”.
Secondly, the Government argued that Article 6 § 1 was not applicable in the present case as the civil party's request to the public prosecutor at the Court of Cassation could not, in their opinion, be characterised as a remedy. In particular, they asserted that Article 506 of the Code of Criminal Procedure did not grant a civil party the right to appeal on points of law. On this point the Government also referred to Article 463 of the Code of Criminal Procedure: “Remedies may be used solely by persons who are expressly afforded such right by law”. For the Government, the public prosecutor was by no means obliged to justify his decision not to accept the request, since there was no right to appeal on points of law under domestic law and, moreover, no such right could be relied upon against statutory provisions on the basis of any particular judicial practice. The lodging of an appeal on points of law fell exclusively within the public prosecutor's discretion.
C. The Court's assessment
1. The Government's preliminary objections
(a) Civil nature of the proceedings
Having regard to the foregoing, this preliminary objection of the Government must be dismissed.
(b) Characterisation of the request to the public prosecutor
The Government's preliminary objection should therefore be dismissed.
2. The merits
Having regard to the foregoing, there has been no violation of Article 6 § 1 of the Convention.
II. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
“In the determination of his civil rights and obligations ... everyone is entitled to a... hearing within a reasonable time by [a] ... tribunal ...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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. Chamber judgment
B. The parties' submissions
C. The Court's assessment
1. Non-pecuniary damage
2. Costs and expenses
3. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months:
(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of the non-pecuniary damage caused by the length of the proceedings;
(ii) EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 20 March 2009.
Vincent Berger Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) separate opinion of Judges Zagrebelsky, Hajiyev, Jaeger, Björgvinsson, Villiger and Berro-Lefèvre;
(b) partly dissenting opinion of Judge Casadevall;
(c) partly dissenting opinion of Judge Malinverni joined by Judge Sajó;
(d) partly dissenting opinion of Judge Kalaydjieva.
SEPARATE OPINION OF JUDGES ZAGREBELSKY, HAJIYEV, JAEGER, BJÖRGVINSSON, VILLIGER AND BERRO-LEFÈVRE
We voted with the majority in favour of finding that there had not been a violation of Article 6 as regards the complaint about a lack of reasoning in the reply of the public prosecutor at the Court of Cassation to the applicant's request for an appeal on points of law. We are of the view, however, that there was no “dispute” over a civil right, as required for the purposes of Article 6 § 1, and that this Article should not therefore have been found applicable in the circumstances. We wish to clarify our views on that particular question.
It is clear from the relevant legislation that the quashing of a judgment can be sought by a civil party only in a limited number of situations, which evidently do not include that of the present case. In particular, under Article 505 § 1 of the Code of Criminal Procedure, a civil party is entitled to appeal on points of law against a conviction only in respect of that part of the judgment in which he or she is awarded damages or is recognised as being entitled to compensation, or in which his or her claims have been dismissed as being without legal basis. Under Article 506 of that Code, the quashing of an acquittal may be sought by the complainant only if he or she has been ordered to pay costs.
To be sure, the relevant legislation is supplemented by judicial practice: the public prosecutor takes into account requests from civil parties and is accustomed to replying in a summary manner to their letters asking him to appeal on points of law.
We are nevertheless of the view that the majority should not have found Article 6 applicable simply on the basis of this practice, however established it may be, that runs counter to the provisions of legislation. If indeed such a practice, whereby the public prosecutor at the Court of Cassation responds to the civil party's request in the event of an acquittal, were to be regarded as creating a remedy available to the civil party, that would be incompatible with the clear and precise applicable law recognising the civil party's right to appeal on points of law only in the situation provided for in Article 506 of the Code of Criminal Procedure, which is not relevant to the present case.
Consequently, the applicant's request to the public prosecutor cannot be regarded as a “remedy” but rather as a means of inviting or urging him to lodge his own appeal on points of law.
It is not appropriate for an international court to infer, from the limited practice of answering letters, the much broader effects of a legal action, especially where the law enumerates an exclusive list of situations in which such legal action is available.
For the foregoing reasons we consider that the complaint concerning the lack of reasoning in the public prosecutor's reply to the applicant was incompatible ratione materiae with the provisions of the Convention.
PARTLY DISSENTING OPINION OF JUDGE CASADEVALL
PARTLY DISSENTING OPINION OF JUDGE MALINVERNI
JOINED BY JUDGE SAJÓ
PARTLY DISSENTING OPINION
OF JUDGE KALAYDJIEVA
The Court's conclusion that Article 6 is applicable implies an expectation that the proceedings in question should be of a judicial nature and should afford the guarantees required by this provision at least to a certain minimum level. I voted with the majority in finding that Article 6 is applicable to the determination of the applicant's civil rights within criminal proceedings, but I was among the minority in finding that the absence of sufficient reasoning constituted a violation of that provision.
I share the concerns of Judge Casadevall about the effect of the majority's conclusion that there was no violation of Article 6 on the development of the Court's findings in similar cases. I also concur with the view of Judge Malinverni that the absence of requisite content and form from a decision which puts an end to judicial proceedings may be seen as arbitrary and may shake public confidence in justice.
In the present case the respondent Government argued that the applicant's request to a prosecutor may not be seen, in principle, as a remedy in respect of her complaints. I agree with this view. Indeed, the fact that the determination of the applicant's civil right to compensation is left to the discretion of a body which is not bound by procedural rules or requirements and which, furthermore, has no appellate jurisdiction, but acts as an intermediary between the applicant and the court, does not appear to be consonant with the institutional and procedural guarantees that are inherent in the judicial determination of a civil right. Having voted that Article 6 was applicable in these circumstances, I fail to see how proceedings of a non-remedial nature could meet the higher standards required by Article 6 as a matter of principle. I regard the length of these proceedings and the absence of minimum reasoning for their outcome as logical aspects of their non-judicial nature.
1 In its Anagnostopoulos judgment (§ 32) the Court found as follows: “When the domestic legal order provides an individual with a remedy, such as a criminal complaint with an application to join the proceedings as a civil party, the State has a duty to ensure that the person using it enjoys the fundamental guarantees of Article 6”.
2 Rather curiously, the Markoulaki judgment was delivered a few weeks after the Gorou (no. 2 ) Chamber judgment.