BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF TSIVELIS v. GREECE
(Application
no. 41762/08)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Tsivelis v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
Elisabeth
Steiner,
Sverre
Erik Jebens,
judges
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41762/08) 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 Evaggelos Tsivelis (“the applicant”),
on 6 August 2008.
- The
Greek Government (“the Government”) were represented by
their Agent's delegates, Mr G.
Kanellopoulos, Senior Adviser at the State Legal Council, and Ms M.
Germani, Legal Assistant at the State Legal
Council.
- On
14 October 2009 the
President of the First decided to communicate the complaint
concerning the length of the proceedings. 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 1963 and he is currently imprisoned in
Korydallos.
- On
22 October 2004 criminal complaints were brought against him by the
Athens First Instance Prosecutor for procuring and repeated rape.
- In
2006, on an unspecified date, the Indictment
Division of the Athens
Court
of Appeal decided to prosecute the applicant and remitted the
case to the Athens First Instance Criminal Court (decision no.
303/2006).
- On
19 July 2006 the Athens First Instance Criminal Court convicted
the applicant and sentenced him to ten years' imprisonment (judgment
no. 2439/2006).
- On
21 July 2006 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 4 May 2009 the Court of Appeal dismissed the
applicant's allegations (judgment no. 1245/2009).
- On
an unspecified date the applicant lodged an appeal on points of law
with the Court of Cassation. The appeal was set
for hearing on 3 February 2010. It transpires from the
case file that these proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF UNREASONABLE LENGTH OF
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 22 October 2004, when
criminal complaints were brought against the applicant by the Athens
First Instance Prosecutor and has not yet ended as, according to the
case file, the proceedings are still pending before the Court of
Cassation. It has thus lasted, to date, more than six years 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 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 1 about the
unfairness of the proceedings. In particular, he complained of
irregularities during the investigation and the
wrong assessment of the evidence before the First Instance Court.
- The Court recalls that, in principle, the fairness of
criminal proceedings should be assessed in the light of the procedure
as a whole (Axen v. Germany, 8 December 1983, § 28,
Series A no. 72; Šilc v. Slovenia (dec.), no. 45936/99,
13 February 2003). Further, it is observed that, in the present case,
according to all the evidence and information submitted by the
applicant and the Government, the proceedings which were brought
against the applicant are still pending before the Court of
Cassation. Moreover, it does not appear from the case file that the
fairness of the proceedings could be seriously prejudiced by an
initial failure at this stage of the proceedings (see Imbrioscia
v. Switzerland, 24 November 1993, § 36, Series A no. 275).
- It
follows that this part of the application is premature and must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings 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 is no call to award the applicant just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
