AS TO THE ADMISSIBILITY OF
Application No. 35973/97
by Fabio BEVILACQUA
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 January 1997
by Fabio BEVILACQUA against Greece and registered on 7 May 1997 under
file No. 35973/97;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
1 December 1997 and the observations in reply submitted by the
applicant on 10 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian national born in 1947. He is a
marketing consultant and resides in Ancona.
The facts of the case, as they have been submitted by the
parties, can be summarised as follows:
A. Particular circumstances of the case
On 12 August 1993 the applicant bought a house with a plot of
land on the island of Paxos in Greece. However, part of this plot of
land is claimed by a local family.
On 7 January 1994 the public prosecutor (isangeleas) of Corfu
ordered the Paxos police to examine the applicant's complaints against
Mr. L.B. and Mr. K.B., members of the family in question.
On 5 May 1994 the applicant lodged with the public prosecutor of
Corfu a criminal complaint against L.B. and K.B for having illegally
entered his property, threatened and assaulted him and occupied part
of his land. He stated that he wished to join the proceedings as partie
civile (politikos enagon) and requested 500,000 drachmas by way of
pecuniary and non-pecuniary damages.
On 25 May 1994 the applicant contacted the Greek Embassy in Rome
to inquire about the state of the proceedings. On 7 June 1994 the
Embassy forwarded the applicant's request for information to the
Ministry of Foreign Affairs, which apparently contacted the Ministry
of Justice. On 11 July 1994 the Ministry of Justice requested
information from the public prosecutor of Corfu who replied on
27 March 1995 that criminal proceedings had been instituted and that
there would be a hearing before the single-member first instance
criminal court (monomeles plimmeliodikio) of Paxos on
27 September 1995.
The hearing of 27 September 1995 was adjourned until 26 June 1996
because the accused's counsel could not appear. The hearing of
26 June 1996 was also adjourned at the accused's request. A new hearing
was fixed for 24 September 1997 which the applicant was summoned to
attend as a witness. That hearing was also adjourned because the
applicant and another witness were not present.
The case was finally heard on 27 September 1997 when the accused
were acquitted. The Government claim that the applicant was not present
at that hearing, while the applicant claims that he was.
B. Relevant domestic law
Article 68 of the Code of Criminal Procedure provides as follows:
"1. Persons who have the right to take part in the proceedings
as parties civiles can pursue their claims for damages before the
criminal court ... if they serve a writ on the accused according
to the rules of civil procedure ...
2. Persons who have the right under the Civil Code to receive
compensation for moral damage can submit their claim to the
criminal court before the taking of evidence begins even if they
have not previously served a writ".
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
of the length of the proceedings.
2. He also complains under Articles 5 and 8 of the Convention and
Article 1 of Protocol No. 1 of the failure of the Greek authorities to
protect his interests.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 January 1997 and registered
on 7 May 1997.
On 10 September 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
1 December 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 10 February 1998.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the length of the proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a ...
hearing within a reasonable time by a ... tribunal established
by law."
The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention does not apply to the proceedings in question. Although the
applicant declared that he wished to join the proceedings as partie
civile, he never served his claim on the accused, as he was required
to do under Article 68 para. 1 of the Code of Criminal Procedure. As
a result, the criminal court could not examine his civil claim.
Moreover, despite the accused's acquittal, the applicant remained free
to re-introduce his claim before the civil courts.
The applicant submits that the proceedings were "civil" in
character, since the reason why the court acquitted the accused was
that it considered that they were right in claiming part of the
applicant's plot of land.
The Commission notes that under with Article 68 para. 1 of the
Code of Criminal Procedure persons who have lodged a criminal complaint
become parties civiles after they have served their claims on the
accused in accordance with the relevant civil procedure rules. The
Government claim that the applicant never did that and the applicant
does not appear to dispute this fact. Moreover, the Commission notes
that, although the applicant claims that he was present at the hearing
of 27 September 1997, there is no indication that he submitted his
civil claim before the taking of evidence began. In these
circumstances, the Commission considers that the criminal court never
acquired the competence to pronounce on the applicant's civil claim.
As a result, the proceedings did not involve a determination of the
applicant's civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (cf., mutatis mutandis,
Eur. Court HR, Hamer v. France judgment of 7 August 1996, Reports
1996-III, no. 13, p. 1044, para. 78). Neither did they involve a
criminal charge against the applicant.
In the light of all the above, the Commission considers that
Article 6 para. 1 (Art. 6-1) is not applicable to the proceedings in
question. This part of the application is, therefore, incompatible
ratione materiae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2).
2. The applicant also complains under Articles 5 and 8 (Art. 5, 8)
of the Convention and Article 1 of Protocol No. 1 (P1-1) of the failure
of the Greek authorities to protect his interests. The applicant claims
that he cannot obtain redress from the Greek legal system.
The Government submit that the applicant could have used a series
of other remedies put at his disposal by the Greek legal order to
protect his interests against L.B. and K.B.
The Commission considers that it should limit its examination to
the criminal proceedings instituted at the applicant's initiative
against L.B. and K.B.
In this connection, the Commission recalls that, in accordance
with its case-law, the term "liberty and security of person" in
Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole
and, in view of its context, as referring only to physical liberty and
security. "Liberty of person" thus means freedom from arrest and
detention and "security of a person" the protection against arbitrary
interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76,
Yearbook 20, p. 102). The applicant has not been deprived of his
liberty. As a result, no appearance of a violation of Article 5 para. 1
(Art. 5-1) is disclosed.
Moreover, the Commission notes that, even assuming that
Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1
(P1-1) require a system of criminal protection of private property
against interferences similar to those complained of by the applicant,
the Greek legal order provided for the possibility of lodging a
criminal complaint. The applicant used this possibility. Although the
proceedings resulted in the accused persons' acquittal, this cannot
involve in itself a violation of the above-mentioned provisions of the
Convention and of Protocol No. 1, which do not guarantee a particular
outcome. Neither has the applicant submitted anything which could lead
to a different conclusion in the particular circumstances of the case.
As a result, no appearance of a violation of Article 8 (Art. 8) of the
Convention or Article 1 of Protocol No. 1 (P1-1) is disclosed.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy