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Cite as: [2012] ECHR 10

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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