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Cite as: [2011] ECHR 903

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FIRST SECTION

CASE OF BARITS v. GREECE

(Application no. 365/09)

JUDGMENT

STRASBOURG

7 June 2011

This judgment is final but it may be subject to editorial revision.

In the case of Barits v. Greece,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Anatoly Kovler, President,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 17 May 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 365/09) 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 Alfredos-Iakovos Barits (“the applicant”), on 28 November 2008.

The applicant was represented by Mr V. Chirdaris, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr M. Apessos and Ms K. Paraskevopoulou, Senior Advisers at the State Legal Council, and Ms Z. Chatzipavlou, Legal Assistant at the State Legal Council.

On 19 March 2010 the President of the First Section decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect 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 1953 and lives in Thessaloniki.

On 6 March 2000 he lodged an action (no. 2145/2000) with the civil courts seeking the annulment of his late uncle’s will, according to which certain property had been bequeathed to A.A. The applicant alleged that his late uncle had made A.A. his heir after being deceived and blackmailed by her.

On 25 April 2000 A.A. brought criminal complaints against the applicant for malicious defamation, claiming that he had maliciously made false statements in action no. 2145/2000 causing damage to her reputation.

On 29 January 2001 the applicant was prosecuted by the Athens First Instance Prosecutor and the case was remitted to the Athens First Instance Criminal Court.

On 27 June 2005 the Athens First Instance Criminal Court convicted the applicant and sentenced him to a suspended prison sentence of eight months (judgment no. 46411/2005).

On the same day the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the First Instance court’s findings and its evaluation of the evidence.

By judgment dated 18 September 2006 the Court of Appeal reduced the applicant’s sentence to a suspended prison sentence of five months (judgment no. 6800/2006).

On 27 October 2006 the applicant lodged an appeal on points of law with the Court of Cassation. On 29 March 2007 he lodged additional grounds of appeal. The appeal on points of law was heard on 16 October 2007.

By judgment dated 28 May 2008 the Court of Cassation rejected the applicant’s appeal (judgment no. 1396/2008). This judgment was finalised on 23 July 2008.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

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 29 January 2001 when the Athens First Instance Prosecutor decided to prosecute the applicant, and ended on 23 July 2008 when judgment no. 1396/2008 of the Court of Cassation was finalised. It thus lasted approximately seven years and six months for three levels of jurisdiction.

A. Admissibility

The Court notes that this complaint 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 applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and 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

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 c. Grèce, n^o 53401/99, §§ 29-30, 10 Avril 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, the applicant complained under Article 6 of the Convention about the fairness of the proceedings. In particular, he argued that the domestic courts’ judgments had not been well reasoned and that his allegations had not been effectively addressed by the courts. Further, he complained of a violation of his right of access to court due to the fact that he had been convicted even though he had only been seeking to protect the legacy of his late uncle.

The Court recalls that, 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 or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. In particular, it is not the Court’s 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 (see, among many others, García Ruiz v. Spain [GC], no. 30544/96, §§ 28 29, ECHR 1999 I). Further, the Court reiterates that, according to its case-law, while Article 6 § 1 of the Convention requires courts to give reasons for their decisions, this is not to be understood as requiring a detailed reply to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). The extent of this obligation may vary depending on the nature of the decision and must be analysed in the light of the circumstances of each case (Higgins and Others v. France, 19 February 1998, § 42, Reports of Judgments and Decisions 1998 I).

In this case, the complaints raised by the applicant regarding unfairness of the proceedings are of a fourth instance nature. In particular, throughout the proceedings, the applicant was fully able to state his case and there is nothing in the case-file to indicate that the taking and the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6. In particular, having regard to the judgments of the domestic courts, which deal clearly and unambiguously with the various points that were submitted by the applicant, it does not appear that the domestic courts failed in any obligation to give reasons. Thus, there is no indication that the applicant’s arguments were not heard by the domestic courts. Finally, the Court finds no appearance of a violation of Article 6 § 1 as regards the right of access to court. Indeed, through this complaint, the applicant appears to be reiterating his claim regarding the reasoning of the judicial decisions in question.

In view of the abovementioned, the applicant’s complaints are therefore manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

IV. 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 claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

The Government considered the amount claimed exorbitant and submitteds that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court considered that an award should be made to the applicant, an amount of an amount of EUR 2,000 would be adequate and reasonable.

The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,000 under that head, plus any tax that may be chargeable on this amounts.

B. Costs and expenses

The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. He produced an invoice for that amount.

The Government contested the applicant’s claim and submitted that the amount claimed was not reasonable. In the event, however, the Court considered it appropriate to award the applicant a sum under this head, the amount of 1,000 EUR would be adequate.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 XI). In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable that the sum claimed, namely EUR 1,500, should be awarded in full, plus any tax that may be chargeable to the applicant.

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 complaint concerning the excessive length of the proceedings and the lack of remedies in that respect admissible and the remainder of the application inadmissible;

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 3,000 (three thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on these amounts;

(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;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Anatoly Kovler
Deputy Registrar President