AS TO THE ADMISSIBILITY OF
Application No. 30478/96
by Stavros GREGORIADES
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 17 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
A. WEITZEL
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 22 January 1996
by Stavros GREGORIADES against Greece and registered on 18 March 1996
under file No. 30478/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen born in 1936 in Cyprus where he
is currently residing. He is a doctor.
The facts, as they have been submitted by the applicant, may be
summarised as follows:
I. PROCEEDINGS INSTITUTED FURTHER TO CRIMINAL COMPLAINTS LODGED BY
THE APPLICANT
On 6 December 1993 the indictments chamber of the First Instance
Criminal Court (simvulio plimmeliodikon) of Athens decided not to
commit for trial ten members of the administration of a public hospital
and two police officers against whom criminal proceedings had been
instituted further to a complaint lodged by the applicant accusing them
of crimes committed in the exercise of their duties. The applicant
appealed.
On 8 February 1994 the indictments chamber of the First Instance
Criminal Court of Athens decided not to commit for trial two employees
of the Ministry of Health against whom criminal proceedings had been
instituted further to a complaint lodged by the applicant accusing them
of breach of duty. The applicant appealed.
Both the applicant's appeals were rejected by the indictments
chamber of the Court of Appeal (simvulio efeton) of Athens as
inadmissible for lack of locus standi on 17 March 1994 and
23 March 1994 respectively.
On 27 May 1994 the applicant lodged an application with the
Commission complaining, inter alia, under Articles 6 and 13 of the
Convention that he had not been given the chance to appear in person
before the indictments chambers which had dismissed the proceedings
which had been instituted further to his complaints. The application
was registered on 25 November 1994 under file No. 25784/94 and was
rejected by the Commission, sitting as a Committee by virtue of
Article 20 para. 3 of the Convention, on 6 April 1995.
II. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT
a. Particular circumstances of the case
On 5 September 1994 the public prosecutor of the First Instance
Criminal Court (isangeleas plimmeliodikon) of Athens committed the
applicant for trial before the three-member First Instance Criminal
Court (trimeles plimmeliodikio) of Athens for a series of offences,
including perjury, which the applicant had allegedly committed in his
attempt to have criminal proceedings instituted against various
persons. A hearing was fixed for 14 April 1995. The summons were served
on 13 October 1994 at the address the applicant had indicated to the
authorities at the beginning of the proceedings.
On 20 October 1994 the applicant appealed to the public
prosecutor of the Court of Appeal (isangeleas efeton) of Athens against
the decision committing him for trial, informed the authorities that
his address had been changed and named a lawyer, Mr. D, as the person
who should receive all documents on his behalf (antiklitos).
On 26 October 1994 the applicant claims to have left Greece for
Cyprus.
On 14 November 1994 the public prosecutor of the Court of Appeal
allowed the applicant's appeal and sent the case to the indictments
chamber of the First Instance Criminal Court of Athens. On
15 December 1994 the indictments chamber decided to commit the
applicant for trial.
On 17 February 1995 the applicant appealed to the indictments
chamber of the Court of Appeal of Athens. His appeal was rejected as
inadmissible on 10 May 1995. The decision was served at the applicant's
old address and was forwarded to the applicant in Cyprus by his ex-
landlord.
On 25 July 1995 the applicant notified the public prosecutor of
the First Instance Criminal Court of Athens that he had moved to Cyprus
and informed him of his new address.
On 27 July 1995 the three-member First Instance Criminal Court
of Athens convicted the applicant in absentia and sentenced him to a
suspended sentence of seven months imprisonment.
The applicant claims not to have been informed of the decision
of the first instance court before 9 January 1996 when he received a
letter from a lawyer, Mrs. V, he had entrusted with inquiring about the
state of the criminal proceedings against him.
b. Relevant domestic law and practice
According to Article 273 para. 1 (c) of the Code of Criminal
Procedure, all documents related to a criminal trial must be served at
the address which the accused indicated when first appearing before the
investigating judge or the public prosecutor, unless the accused has
made a valid declaration of change of address, inter alia, when
appealing against the public prosecutor's decision committing him for
trial. According to Article 273 para. 1 (e) of the Code of Criminal
Procedure, if the accused declares that he lives abroad and is not
represented by counsel, he is obliged to name one of the lawyers of
the competent first instance criminal court as the person who will
receive all documents on his behalf (antiklitos). All documents must
be served on this lawyer and only on him.
According to Article 473 para. 1 of the Code of Criminal
Procedure, the time allowed for appeal begins to run, for persons
convicted in absentia, from the date of valid service of the judgment
convicting them. According to the case-law of the Court of Cassation,
an invalid service cannot affect the rights of the prospective
appellant (decisions Nos. 490/1967, 141/1969 and 485/1995).
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that the indictments chamber of the First Instance Criminal Court of
Athens did not hear him before deciding not to commit for trial the
various persons against whom he had lodged criminal complaints.
2. The applicant also complains under Article 6 para. 1 of the
Convention that he was committed for trial and found guilty by the
three-member First Instance Criminal Court of Athens without having
been heard. He claims that, although he had informed the competent
authorities of his change of address and his moving to Cyprus, the
judgment convicting him was never served on him. When he was informed
of his conviction, he could no longer appeal because the time-limit had
expired.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the indictments chamber of the First Instance Criminal
Court of Athens did not hear him before deciding on 6 December 1993 and
8 February 1994 not to commit for trial the various persons against
whom he had lodged criminal complaints.
The Commission recalls that under Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention it should not deal with any application
submitted under Article 25 (Art. 25) which is substantially the same
as a matter which it has already examined and if it contains no new
information. The Commission considers that the applicant's complaints
are essentially the same as complaints he had raised in Application No.
259874 which was declared inadmissible on 6 April 1995 and that they
contain no relevant new information. It follows that this part of the
application must be rejected pursuant to Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was committed for trial and found guilty by the
three-member First Instance Criminal Court of Athens without having
been heard.
The Commission recalls that a person who has been convicted in
absentia is entitled under Article 6 para. 1 (Art. 6-1) of the
Convention to a fresh determination of the merits of the charge by a
court, unless he has unequivocally waived his right to take part in the
trial (Eur. Court H.R., Colozza v. Italy judgment of 12 February 1985,
Series A no. 89, p. 14, para. 27, and pp. 15-16, paras. 29-30).
According to Greek law, a person convicted in absentia may obtain a
fresh determination of the merits of the charge by appealing against
his conviction. The appeal must be lodged within ten days from the date
of service of the judgment.
The Commission notes that the applicant claims that he has missed
the deadline, the judgment having been apparently served at an address
other than the address he had given to the competent authorities.
However, the applicant also claims that he had duly informed the
authorities of his change of address and his moving to Cyprus and the
Commission notes that, according to the case-law of the Court of
Cassation, an invalid service does not affect the rights of the
prospective appellant.
The Commission recalls that in the case of Stamoulakatos
v. Greece it expressed certain doubts about the effectiveness of the
particular remedy on the basis that the accused bore the burden of
proving that the service was invalid (Comm. Report 20.5.92, para. 68,
Eur. Court H.R., Series A no. 271, p. 19). However, in that case the
applicant had lodged an appeal against his conviction in absentia and
his appeal had been rejected. The applicant in the present case, on the
contrary, never attempted to challenge the decision of the first
instance court, although he has produced before the Commission several
elements of proof that the competent authorities had been notified of
his change of address. In these circumstances, the Commission cannot
conclude that the applicant was precluded from obtaining a fresh
determination of the merits of the charges against him by appealing
against his first instance conviction when he was informed of the
relevant judgment.
It follows that no appearance of a violation of Article 6 para. 1
(Art. 6-1) of the Convention is disclosed and that this part of the
application must be rejected as inadmissible being 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 J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy