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FIRST
SECTION
CASE OF SYNGELIDIS v. GREECE
(Application
no. 24895/07)
JUDGMENT
STRASBOURG
11
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Syngelidis v.
Greece,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George Nicolaou,
judges,
Spyridon Flogaitis, ad hoc judge,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24895/07) 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 Polychronis Syngelidis
(“the applicant”), on 1 June 2007.
- The
applicant was represented by Mr K. Christodoulou and Mr S.
Tsakyrakis, lawyers practising in Athens, and Mr D. Pannick, a
barrister practising in London. The Greek Government (“the
Government”) were represented by their deputy Agents, Mr G.
Kanellopoulos, Adviser, State Legal Council, and Mrs Z. Hatzipavlou,
Legal Assistant, State Legal Council.
- On
27 May 2008 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
- Mr Rozakis, the judge elected in respect of Greece,
withdrew from sitting in the case (Rule 28 of the Rules of Court).
The Government accordingly appointed Mr S. Flogaitis to sit as an ad
hoc judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background facts
- The
applicant was born in 1957 and lives in Athens. He is a businessman,
who married M.A. on 20 September 2003. At the time of their marriage
M.A. was already a member of the Greek parliament (MP). On 24 March
2004 their son was born.
- At
the end of 2004 the applicant’s marriage broke down. It was
pronounced dissolved by mutual consent by the Athens Court of First
Instance on 7 July 2005.
- The
applicant and M.A. concluded an agreement on 14 December 2004
resolving issues of custody and access in relation to their son.
These arrangements were endorsed by a formal decision of the Athens
Court of First Instance of 20 January 2005 (decision no. 528/2005).
In particular, M.A. was to have custody of the child until he came of
age, and he was to live with her. The applicant was entitled to open
access to his son, subject to the child’s needs, and certain
minimum periods and days of contact were specified. In fact, he was
entitled to see his son every day between 5 p.m. and 8 p.m.
- On
a number of occasions the applicant was unable to have contact with
his son in accordance with the provisions of the court’s order.
B. Domestic proceedings
- On
20 October 2005 the applicant lodged an indictment with the
prosecutor of the Athens Court of First Instance based on Article
232A of the Criminal Code. He requested the sum of ten euros by way
of nominal compensation for the non-pecuniary damage which M.A.’s
breach of decision no. 528/2005 had caused him, reserving his
right to seek further compensation before the civil courts.
- On
24 August 2006 the prosecutor of the Athens Court of First Instance
referred the indictment to the prosecutor of the Supreme Court. The
matter was referred to the Minister of Justice on 30 August 2006 for
onward transmission by him to the President of the Greek parliament,
so that leave of Parliament to bring the proceedings could be sought
under Article 62 of the Greek Constitution. The file was received by
Parliament on 3 October 2006.
- On
28 November 2006 the Parliament’s Ethics Committee gave the
opinion that M.A.’s immunity should not be lifted. In its
report the Committee considered that “one of the grounds
provided for by Article 83 § 3 of Parliament’s
Regulations applied in this case”.
- On
6 December 2006, by a majority of 107 votes to 68 following a secret
ballot, Parliament, sitting in plenary session, refused to grant
leave. No reasons were given for its decision.
C. Further developments in the case
- In
the meantime, on 31 March 2005, M.A. had brought criminal proceedings
against the applicant for placing a security guard outside her
building after having allegedly received telephone calls threatening
him and his family. These proceedings were subsequently dismissed
both at first instance and on appeal.
- On
20 December 2005 the Athens Court of First Instance varied the
custody arrangements. The court’s order made specific provision
for the payment of a 1,000-euro fine by M.A. should she breach any of
its provisions (decision no. 9599/2005). M.A. has allegedly
consistently failed to comply with these revised arrangements. On 20
March 2007 and 26 March 2007 the applicant lodged two further
indictments with the prosecutor of the Athens Court of First Instance
following alleged breaches of the court’s decision. The
applicant again sought compensation for non-pecuniary damage.
- On
9 May 2007 the prosecutor of the Athens Court of First Instance
referred the indictment dated 26 March 2007 to the prosecutor of the
Supreme Court. The matter was referred to the Minister of Justice on
22 May 2007 for onward transmission by him to the President of
the Greek Parliament, so that leave of Parliament could be sought
under Article 62 of the Greek Constitution. On 22 May 2008 the
Parliament’s Ethics Committee decided that the request should
be rejected without being placed before the full Parliament for
consideration, on the basis that the request for waiver of immunity
was substantially the same as the first request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- The
relevant parts of the Greek Constitution provide:
Article 53
“1. The members of parliament shall be
elected for a term of four consecutive years, commencing on the day
of the general elections...”
Article 61
“1. A member of parliament shall not be
prosecuted or in any way interrogated for an opinion expressed or a
vote cast by him in the discharge of his parliamentary duties...
2. A member of parliament may be prosecuted only
for libel, under the relevant law, after leave has been granted by
Parliament...”
Article 62
“During the parliamentary term members of
parliament shall not be prosecuted, arrested, imprisoned or otherwise
confined without prior leave granted by Parliament...
...No leave is required when members of parliament are
caught in the act of committing a felony...”
B. The Criminal Code
- The
relevant parts of the Greek Criminal Code provide:
Article 63
“Persons who are entitled, under the Civil Code,
to compensation for damage for non-pecuniary harm and restoration of
damage may join the criminal proceedings as civil parties”
Article 232A
“Anyone who intentionally fails to comply with a
temporary order of a judge or court or with a provision of a court
decision by which they are obliged to act or to refrain from
acting...may be punished by up to one year’s imprisonment...”
C. The Civil Code
- The
relevant parts of the Greek Civil Code provide:
Article 914
“Whoever unlawfully and culpably causes damage to
another shall be bound to make reparation to the other for any damage
thus caused...”
Article 932
“In the case of an unlawful act, the court may,
irrespective of any award of compensation for pecuniary damages,
award reasonable compensation ... for any non-pecuniary harm
suffered...”
D. The Civil Procedure Code
- Articles
946 and 947 of the Civil Procedure Code also enable a court to punish
non-compliance with a judgment or order by imprisonment or by a fine
of up to 5,900 euros.
- By
virtue of Article 1048 of the Civil Procedure Code, a court may not
order the imprisonment of a member of parliament during his or her
mandate and for four weeks after the mandate expires.
E. The Regulations of Parliament
- Article
83 of the Regulations of Parliament provides as follows:
“1. Petitions by public prosecutors for leave
to commence criminal proceedings against an MP under Article 61 §
2 and Article 62 § 2 of the Greek Constitution, having first
been checked by the Supreme Court’s prosecutor, shall be
submitted to Parliament through the Minister of Justice and
registered in a special book according to the order of their
introduction...
...
3. Having heard the MP in respect of whom the
lifting of immunity is sought, if he or she wishes to be heard... the
relevant Committee shall examine, on the basis of the documents
forming part of the request, whether the offence for which the
lifting of the immunity is sought is related to the MP’s
political activity; whether the prosecution is politically motivated;
or whether it is aimed at undermining the authority of Parliament or
of the MP, or at obstructing, to a significant extent, the exercise
of their functions, or at influencing the operation of Parliament or
of the parliamentary group of which the MP is a member.
4. Within a fixed period set by the President
of the Parliament, the Committee shall prepare a report without
examining the veracity of the accusation...
...
5...after the Committee submits its report on the issue
concerned, the petition shall be entered in the agenda of the
Parliament in plenary session...
...
7. Parliament shall decide on the petition by
means of a show of hands... The MP in respect of whom the lifting of
immunity is sought, the presidents of the political parties or their
substitutes if they wish, may give their opinion... Parliament may
decide on the basis of a secret ballot if proposed by the President
or by the president of the political party to which the MP
belongs...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 TAKEN ALONE AND
IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicant complained, under Article 6 § 1 taken alone and in
conjunction with Article 14 of the Convention, that the Greek
parliament’s refusal to waive M.A.’s parliamentary
immunity had breached his right of access to a court. These
Convention provisions, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Admissibility
1. The parties’ submissions
- The
Government argued that the refusal of the Greek parliament to waive
the immunity of M.A. did not raise any issues under Article 6 of the
Convention because it did not affect the applicant’s civil
rights. First, they argued that the applicant’s behaviour
showed that his purpose in joining the proceedings as a civil party
was primarily to obtain the defendant’s conviction. The
Government noted in this connection that, when lodging his indictment
with the prosecutor of the Athens Court of First Instance, the
applicant had merely claimed the symbolic amount of ten euros,
without prejudice to the satisfaction of all his civil rights before
the civil courts. Second, the Government contended that, even if the
applicant was successful in obtaining a verdict against his former
wife, it would not be “directly decisive” since any
consequences of the said conviction on the matter of her compliance
with the terms of the applicant’s access to his child would
have been uncertain and remote. Third, the Government submitted that
the present application fell outside the scope of Article 6 § 1
because decision no. 528/2005, with which the applicant’s wife
had failed to comply was an interim measure under the domestic law.
- The
Government submitted, further, that the applicant had not exhausted
available domestic remedies. They noted that, in addition to criminal
prosecution, Article 947 of the Code of Civil Procedure provided that
a civil action could be brought against a party who had failed to
allow access to a child. The Government contended that, since a
waiver of immunity was not a necessary pre-condition for bringing a
civil action against an MP, the applicant should have used this
procedure before applying to the Court.
- The
applicant observed that Article 6 § 1 applied in the present
case as it was not suggested by the Government that the applicant’s
case had been brought as an actio popularis. Moreover, the
applicant noted that it was not a case in which he sought private
revenge as he had made it clear throughout the domestic proceedings
that his aim was to obtain compensation for the non-pecuniary harm
and frustration he had suffered as a result of his wife’s
failure to comply with the decision of the domestic court. The
applicant added that the non-pecuniary harm suffered in the present
case was particularly grave, since the court’s order concerned
contact between himself and his son, which was at the heart of their
personal and family lives. As regards the Government’s argument
that a verdict against the applicant’s wife would not directly
affect his access to his son, the applicant contended that this
submission was irrelevant. In particular, he noted that the civil
right at issue in the present case was the right to become a civil
party in criminal proceedings brought against his ex-wife, and to
claim compensation in those proceedings for non-pecuniary damage
caused by her failure to comply with court orders regulating the
applicant’s access to his son. Finally, the applicant asserted
that, although the original domestic court order was an interim one,
the action which he had sought to bring in the context of the present
case was, as a matter of Greek law, a wholly separate claim.
- Secondly,
the applicant asserted that domestic law entitled him to file a
criminal indictment in combination with a request for monetary
compensation. Thus, the rights safeguarded by Article 6 of the
Convention, including the right of access to justice, were fully
applicable to his attempt to act accordingly. Moreover, the applicant
submitted that the civil actions to which the Government referred
were not available to him in full because of his ex-wife’s
status as an MP. In particular, the applicant contended that where an
action was brought under Articles 950 § 2 or 947 of the Civil
Procedure Code, and the defaulter was, as in the present case, a
serving MP, imprisonment could not be ordered.
2. The Court’s assessment
(a) As to the applicability of Article 6 §
1 of the Convention
- With
regard to the civil nature of the proceedings, the Court reiterates
that the Convention does not confer any right, as such, to have third
parties prosecuted or sentenced for a criminal offence. To fall
within the scope of the Convention such right 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 v. France [GC], no. 47287/99, §
70, ECHR 2004 I).
- The
import of this case-law is that Article 6 § 1 of the Convention
applies to proceedings involving civil-party complaints from the
moment the complainant is joined as a civil party, unless he or she
has waived the right to reparation in an unequivocal manner (see
Perez, cited above, § 66).
- In
the present case the applicant applied for civil-party status,
claiming a sum equivalent to ten euros, when he lodged an indictment
with the prosecutor of the Athens Court of First Instance, based on
Article 232A of the Criminal Code. Accordingly, the proceedings were
of a civil nature as they had an economic aspect, on account of the
sum – however symbolic – of ten euros which the applicant
claimed in joining them as a civil party (see Gorou v. Greece (no.
2) [GC], no. 12686/03, §§ 24-26, 20 March 2009).
- Moreover,
as regards the Government’s argument related to the decisive
character of the proceedings for the right in question, the Court
notes that they concerned the applicant’s compensation for the
non-pecuniary harm suffered because of the alleged breach by his
ex-wife of decision no. 528/2005 and not the regulation of his
access to his son. Thus, the applicant’s right to be
compensated for the alleged non-compliance with decision no. 528/2005
was directly at stake in the impugned proceedings (see Gorraiz
Lizarraga and Others v. Spain, no. 62543/00, §§ 46-47,
ECHR 2004 III).
- Finally,
the Court notes that although the applicant’s indictment with
the prosecutor of the Athens First Instance Court relied on the fact
of the alleged non-compliance of the applicant’s ex-wife with
the previous interim order, it introduced an entirely separate claim
seeking compensation for the non-pecuniary damage sustained.
Consequently, it cannot be considered as “interim” in
nature. Having regard to the foregoing, the Court considers that
Article 6 § 1 applies in the present case and that the
objections of the Government must be dismissed.
(b) As to the objection of failure to
exhaust domestic remedies
- The Court reiterates that it is well established in
its case-law that an applicant must make normal use of those domestic
remedies which are likely to be effective and sufficient. When a
remedy has been attempted, use of another remedy which has
essentially the same objective is not required (see Yaşa v.
Turkey, 2 September 1998, 1998-VI, § 71, and Riad and
Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84,
ECHR 2008-...).
- The
Court notes that in the present case the applicant lodged an
indictment with the prosecutor of the Athens Court of First Instance
based on Article 232A of the Criminal Code seeking compensation for
the alleged breach by M.A. of decision no. 528/2005. Thus, this
indictment was capable of remedying directly the impugned state of
affairs, namely the non-pecuniary damage suffered by the applicant
due to the alleged non-execution of decision no. 528/2005 (see
Wiktorko v. Poland, no. 14612/02, § 34, 31 March
2009). In the circumstances of the case this constituted an adequate
and effective remedy within the meaning of Article 35 of the
Convention.
- Further,
the Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government noted that the purpose of conferring immunity on members
of parliament in respect of their votes and opinions was to ensure
that the representatives of the people enjoyed the greatest possible
freedom of expression in the exercise of their functions, beyond the
limits imposed on ordinary citizens.
- The
Government submitted that the immunity in question, being attached to
a function provided for in the Constitution, did not breach either
the principle of the equality of citizens before the law or the
prohibition of discrimination. Its purpose was neither to create a
“privileged” class nor to allow parliamentarians to make
arbitrary use of their privileges. On the contrary, it pursued the
legitimate aim of allowing Parliament to debate any issue relevant to
public life freely and openly without its members having to fear
persecution or possible legal consequences.
- Moreover,
the Government asserted that the right of access to a court had not
been restricted in the present case, as the domestic order secured
the possibility of seeking compensation before the civil courts for
material and non-pecuniary damage sustained on account of the alleged
unlawful behaviour of M.A. The Government contended that a civil
action was a remedy equivalent to joining a criminal action against
M.A. as a civil party. Seeking civil redress only through criminal
action would undermine the whole purpose of conferring immunity on
members of parliament, namely the freedom and spontaneity of
parliamentarian debate. Further, the Government submitted that by
decision no. 9599/2005 the Athens Court of First Instance varied the
custody arrangements laid down in decision no. 528/2005 of the same
court and made provision for a 1,000-euro fine in the event of a
breach. Accordingly, the Government contended that in the present
case the applicant could also have asked the Athens Court of First
Instance to make provision for a fine and subsequently impose one on
M.A. in the event of a breach of decision no. 528/2005.
- In
general, the Government affirmed that, even assuming that M.A.’s
behaviour was not connected with the exercise of parliamentary
functions in their strict sense, the restriction imposed on the
applicant’s right to a court should not automatically be
considered as disproportionate to the aim pursued. The mere existence
of other remedies capable of providing redress in respect of the
applicant’s complaints provided him with adequate means of
effectively protecting his Convention rights.
- The
applicant noted that the present case raised an issue concerning
parliamentary immunity which had already been resolved by the Court
following its judgments in the cases of Cordova v. Italy (no.
1) (no. 40877/98, ECHR 2003 I) and Tsalkitzis v.
Greece (no. 11801/04, 16 November 2006). The applicant
agreed with the Government that parliamentary immunity under Greek
law was capable of being compatible with the Convention on condition
that, in exercising its discretion to waive immunity in individual
cases, the Greek parliament correctly interpreted and applied the
relevant constitutional provisions. The applicant submitted that the
Greek parliament’s refusal to give leave for proceedings to be
brought against M.A. was part of a wider and consistent practice on
the part of the parliament of using constitutional provisions on
immunity to shield MPs from the reach of criminal law. The applicant
provided a press survey, establishing that from 1974 to 2003 there
had been eight hundred requests for such permission and only five of
them had been granted. In this respect, and in the context of the
present case, the applicant affirmed that the violation of his right
of access to a court was all the more flagrant given the fact that
M.A. was able to bring criminal proceedings against him.
2. The Court’s assessment
(a) General principles
- The
right of access to a court enshrined in Article 6 § 1 of the
Convention is not absolute but may be subject to limitations; these
are permitted by implication since the right of access by its very
nature calls for regulation by the State (see Kart v.
Turkey [GC], no. 8917/05, § 79,
3 December 2009). In this respect, the Contracting States enjoy
a certain margin of appreciation. It is not the Court’s task to
take the place of the relevant domestic courts. It is primarily for
the national authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see, mutatis mutandis,
Brualla Gómez de la Torre v. Spain, 19 December 1997, §
31, Reports of Judgments and Decisions 1997 VIII, and
Saez Maeso v. Spain, no. 77837/01, § 22, 9 November
2004).
- However,
the final decision as to the observance of the Convention’s
requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence
of the right is impaired. Furthermore, such a limitation of the right
of access to a court will not be compatible with Article 6 § 1
if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed
and the aim sought to be achieved (see Waite and Kennedy
v. Germany [GC], no. 26083/94, § 59, ECHR 1999 I,
and T.P. and K.M. v. the United Kingdom [GC], no.
28945/95, § 98, ECHR 2001 V). The right of access to a
court is impaired when the rules cease to serve the aims of legal
certainty and the proper administration of justice and form a sort of
barrier preventing the litigant from having his or her case
determined on the merits by the competent court.
- The Court observes in this connection that when a
State affords immunity to its members of parliament, the protection
of fundamental rights may be affected. That does not mean, however,
that parliamentary immunity can be regarded in principle as imposing
a disproportionate restriction on the right of access to a court as
embodied in Article 6 § 1 (see Kart v. Turkey, cited
above, § 80). Just as the right of access to a court is an
inherent part of the fair trial guarantee in that Article, so some
restrictions on access must likewise be regarded as inherent, an
example being those limitations generally accepted by the Contracting
States as part of the doctrine of parliamentary immunity (see A.
v. the United Kingdom, cited above, § 83, and, mutatis
mutandis, Al-Adsani v. the United Kingdom [GC], no.
35763/97, § 56, ECHR 2001 XI). The Court has already
acknowledged that it is a long-standing practice for States generally
to confer varying degrees of immunity on parliamentarians, with the
aim of allowing free speech for representatives of the people and
preventing partisan complaints from interfering with parliamentary
functions (see A. v. the United Kingdom, cited above, §§
75 77; Cordova, cited above, § 55, and De
Jorio v. Italy, no. 73936/01, § 49, 3 June
2004). That being so, the creation of exceptions to that immunity,
the application of which depended upon the individual facts of any
particular case, would seriously undermine the legitimate aims
pursued (see A. v. the United Kingdom, cited above, § 88).
- It
would be equally incompatible with the purpose and object of the
Convention, however, if the Contracting States, by adopting one of
the systems of parliamentary immunity commonly used, were thereby
absolved from all responsibility under the Convention in relation to
parliamentary activity. It should be borne in mind that the
Convention is intended to guarantee not rights that are theoretical
or illusory but rights that are practical and effective. This is
particularly so of the right of access to a court in view of the
prominent place held in a democratic society by the right to a fair
trial (see Aït-Mouhoub v. France, 28 October 1998, §
52, Reports 1998 VIII). It would not be consistent with
the rule of law in a democratic society, or with the basic principle
underlying Article 6 § 1, if a State could, without restraint or
control by the Court, remove from the jurisdiction of the courts a
whole range of civil claims or confer immunities on categories of
persons (see Fayed v. the United Kingdom, 21 September 1994, §
65, Series A no. 294 B).
- Thus, where parliamentary immunity hinders the
exercise of the right of access to justice, in determining whether or
not a particular measure was proportionate the Court examines whether
the impugned acts were connected with the exercise of parliamentary
functions in their strict sense (see Cordova (no. 1), cited
above, § 62, and De Jorio, cited above, §
53). The Court reiterates here that the lack of any clear connection
with parliamentary activity requires it to adopt a narrow
interpretation of the concept of proportionality between the aim
sought to be achieved and the means employed. This is particularly so
where the restrictions on the right of access stem from the
resolution of a political body (see Kart v. Turkey, cited
above, § 83, and Tsalkitzis v. Greece, no. 11801/04,
§ 49, 16 November 2006). Moreover, the broader an immunity,
the more compelling must be its justification (see A. v. the
United Kingdom, cited above, § 78).
(b) Application of the above principles in
the instant case
- The
Court notes that the Government’s main argument focuses on the
existence of legal means available to the applicant other than
lodging a criminal indictment in order to seek compensation for the
allegedly illegal behaviour of M.A. In the Government’s view,
the mere existence of the aforementioned remedies providing him with
other means of redress meant that there was no breach of the core of
the applicant’s right of access to a court. The Court disagrees
with this approach. As it has already observed on a number of
occasions, 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
(see Anagnostopoulos v. Greece, no. 54589/00,
§ 32, 3 April 2003). Thus, the Government’s argument is
not related to the merits of the applicant’s complaint but to
the issue of exhaustion of domestic remedies, a question that has
already been addressed by the Court. Consequently, in the light of
the particular circumstances of the case the Court must assess
whether Parliament’s refusal to grant leave in order to bring
criminal proceedings against M.A. infringed the applicant’s
right of access to a court.
- In
this connection the Court notes that, if properly interpreted in the
light of Article 6 § 1, Article 62 of the Greek Constitution
entitles the Greek Parliament to refuse to grant leave for a
prosecution only where the acts on which the prosecution is based are
clearly connected with parliamentarian activity. In the context of
the present case, there was no conceivable link between M.A.’s
behaviour which formed the basis of the proposed criminal proceedings
and her parliamentary functions. Her alleged failure to comply with
the contact arrangements ordered by the domestic court was entirely
unrelated to the performance of her functions as a member of
parliament and to the functioning and reputation of Parliament in
general. Such behaviour is more consistent with a personal quarrel
between an ex-couple with regard to the regulation of their contact
with their child.
- Moreover,
the Court notes that no reasons were established by the Parliament’s
Ethics Committee as regards the grounds for not lifting M.A.’s
immunity. In particular, the Committee made a general reference to
Article 83 § 3 of the Parliament’s Regulations adding that
one of the conditions for the refusal to waive immunity for M.A. was
met, without however specifying whether the offence for which the
lifting of the immunity was sought was related to M.A.’s
political activity, whether the prosecution was politically motivated
or whether it was aimed at undermining the authority of Parliament.
Consequently, the absence of any argument showing the reasoning of
the Committee in question deprived the applicant even of the
possibility of receiving any concrete information about the basis and
the criteria on which Parliament had refused to waive M.A.’s
immunity.
- The
Court lastly attaches some significance to the fact that the impugned
approach of the Parliament has created an imbalance in treatment
between the applicant and M.A., since the latter was able to bring
criminal proceedings against the applicant on 31 March 2005,
subsequently dismissed both at first instance and on appeal. Thus,
the effect of the Greek Parliament’s approach was that M.A.
stayed completely outside the reach of the criminal justice system in
relation to indictments lodged by the applicant, while remaining free
to seek to prosecute him.
- The
Court therefore considers that in this case the decision that no
further proceedings could be brought to secure the protection of the
applicant’s rights did not strike a fair balance between the
requirements of the general interest of the community and the need to
safeguard the fundamental rights of individuals.
- The foregoing considerations are sufficient to enable
the Court to conclude that there has been a violation of Article 6 §
1 of the Convention. Moreover, having regard to the particular
circumstances of the present case and to the reasoning which led it
to find a violation of Article 6 § 1, the Court considers that
it is not necessary also to examine the case under Article 14 of the
Convention (see Cordova v. Italy (no. 1), cited
above, § 75).
II. 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 to have sustained non-pecuniary damage on account
of the frustration caused by his inability to join, as a civil party,
the criminal proceedings brought against his ex-wife for
non-compliance with a court order and to obtain compensation for
non-pecuniary damage. He requested the Court to award him such sum as
it considered appropriate.
- The
Government submitted that a judgment finding that there had been a
violation of the Convention would in itself constitute sufficient
just satisfaction. Alternatively, the Government contended that any
award for non-pecuniary damage should not exceed 3,000 euros (EUR).
- The
Court finds that the applicant sustained undeniable non-pecuniary
damage. Taking into account the various relevant circumstances and
making an assessment on an equitable basis in accordance with
Article 41 of the Convention, it awards him EUR 12,000 in this
respect, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed 62,500 pounds sterling (GBP) (approximately
EUR 73,026) for the costs and expenses incurred in the proceedings
before the Court. He produced four invoices, for a total amount of
GBP 12,500 (approximately EUR 14,603), in respect of the fees that he
had already paid for his representation before the Court.
- The
Government stated that the legal fees for the proceedings before the
Court were excessive and that a total sum not exceeding EUR 5,000
would be appropriate in respect of legal costs.
57. The Court notes that,
according to its established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually incurred, were necessarily incurred and were also 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 information
in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 7,000 for the proceedings before
this Court, 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
- Declares by a majority the application
admissible;
- Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously that there is no need to
examine separately the complaint under Article 14 of the Convention;
- Holds by five votes to two
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 7,000 (seven thousand euros),
in respect of costs and expenses, plus any tax that may be chargeable
to the applicant;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Flogaitis is annexed to this judgment.
N.A.V.
S.N.
DISSENTING OPINION OF JUDGE FLOGAITIS
I dissent from the majority in the present case. I understand that
important precedents have been decided in cases where civil party
actions are brought in criminal proceedings before the courts. It is
my view, however, that peculiarities specific to Greek criminal
proceedings prevent me from accepting that the impugned proceedings
are civil in nature and, accordingly, from concluding that Article 6
§ 1 is applicable.
According to Greek criminal law, a criminal trial is of an entirely
public character: it is the public prosecutor who decides whom to
arrest and charges are brought on behalf of the public, and it is the
public prosecutor who is responsible for bringing a case before the
Criminal Court against an individual suspected of breaking the law.
The criminal trial is therefore between the representative of the
public and the defendant.
Where the “victim” of the crime wishes
to intervene in the proceedings, there is only one institution which
can allow him to participate officially in the criminal trial: a
civil action.
The plaintiff claiming damages joins the criminal
trial on the pretext of seeking compensation for the damage suffered.
In actual fact, he seeks to establish proof of the defendant’s
guilt by presenting himself as the person who has suffered as a
result of the crime and who seeks to reveal the truth. In other
words, by asking the criminal court to award him compensation for the
damage suffered, the plaintiff actually requires his suffering to be
recognised by the public authorities and justice to be granted in his
favour. This will happen only if the defendant is found guilty of the
crime by the court’s verdict. Moreover, the satisfaction of the
plaintiff’s claims arising from the crime is an element of the
public function of the criminal penalty, since not only does it
provide redress for the plaintiff but it is also important for the
reparation of damage in society.
The participation of the plaintiff claiming
damages in the criminal trial also contributes to achieving a better
diagnosis of the defendant’s personality and greater
clarification of both the psychological circumstances under which the
crime was committed and its consequences. If these factors are
considered, the level of the defendant’s responsibility and the
suitable penalty can be better assessed by the domestic courts.
The plaintiff’s presence is also indispensable for ensuring
that the courts or the public authorities pursue the criminal
proceedings expeditiously.
The argument that the plaintiff’s aim in the
criminal proceedings is to secure the defendant’s criminal
conviction is also supported by the fact that a) the amount of money
claimed by the plaintiff for compensation is very low, namely,10 or
20 euros, and he usually reserves the right to bring the case before
the civil courts for higher compensation, and
b) the criminal proceedings allow the victim to take part in the
criminal trial and endeavour to secure the conviction of the
defendant without claiming civil damages. Specifically, this is
possible in cases where (i) the person responsible for paying the
damages occasioned by the crime is a third party and not the
defendant, (ii) the public authorities bring a civil action for a
crime relating to taxes and customs, (iii) the prosecutor appeals
against the first-instance court’s ruling, and c) the
proceedings instituted to join the criminal trial as a civil party
are facilitated since this can be done orally in the course of the
court hearings, a lawyer can be appointed, the civil party is
summoned to appear before the court and he has the right to a
hearing.
The role of the civil party in criminal
proceedings as a “private” prosecutor is also borne out
by the fact that if in such a case the defendant offers the plaintiff
compensation in the entire sum of money he claims before the
beginning of the criminal trial, the plaintiff can refuse this offer
and insist on participating in the criminal proceedings in order to
assist the court in securing a conviction. The same applies when the
civil party submits their claim for compensation publicly after the
opening of the court’s hearing, but
the plaintiff maintains his right to be part of the criminal trial as
a civil party (see Court of Cassation, judgment no. 1/1997,
plenary).
Finally, the civil party, if he truly wants to be compensated, will
submit his case to the civil courts and it is before those courts
that the civil right will be satisfied. In fact the entirely criminal
nature of the criminal proceedings is also proven by the fact that
the civil courts, when deciding the same case, are not bound at law
by the findings of the criminal court and the civil proceedings are
independent.
For these reasons, I conclude that the present case should have been
rejected as inadmissible.
