THIRD SECTION
DECISION
Application no. 42570/18
Georgios MOUSTAKAS
against Greece
The European Court of Human Rights (Third Section), sitting on 18 March 2025 as a Committee composed of:
Peeter Roosma, President,
Ioannis Ktistakis,
Lətif Hüseynov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 42570/18) 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”) on 4 September 2018 by a Greek national, Mr Georgios Moustakas (“the applicant”), who was born in 1961, lives in Athens and was represented by Ms T. Spartali, a lawyer practising in Chania;
the decision to give notice of the application to the Greek Government (“the Government”), represented by their Agent, Ms N. Marioli, President of the State Legal Council and their Agent’s delegate, Ms Z. Chatzipavlou, Senior Adviser at the State Legal Council;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the dismissal by the deputy prosecutor of a request by the applicant for an appeal on points of law against an acquittal judgment delivered in criminal proceedings in which the applicant had participated as a civil party, owing to missing of a time-limit.
2. The applicant co-owned a plot of land with D. M. and A. M. In 2015 he filed a criminal complaint against D. M., A.M., and their appointed engineer N.G., because their construction works had allegedly caused a crack in the applicant’s building. Criminal proceedings were initiated against the three persons for falsification of certificates, failure to prevent danger and breach of construction rules by negligence. The applicant joined the proceedings as a civil party, seeking compensation of moral damage. He was represented by a lawyer.
3. Judgment no. 98140A of the Athens Criminal Court of First Instance, delivered on 25 October 2017, acquitted the accused persons.
4. On 1 November 2017 the applicant requested the deputy prosecutor at the Athens Criminal Court of Appeal to appeal against the acquittal judgment. On 6 November 2017 the deputy prosecutor at the Athens Criminal Court of Appeal appealed, on the grounds that only in respect of the falsification of certificates, it had erroneously relied on an expert report issued after inspection of the premises. The applicant was a civil party at the proceedings before the Athens Criminal Court of Appeal and was represented by two lawyers. By its judgment no. 782 delivered on 4 October 2021 the Court of Appeal declared the appeal inadmissible for lack of specific and substantial reasoning. It held that the appeal did not specify the errors in the assessment of the evidence or the facts that could lead to the reassessment of the verdict.
5. In the meantime, on 7 February 2018, judgment no. 98140A was finalised and registered in the special book kept at the registry of the Athens Criminal Court of First Instance. The applicant claims that he contacted the registry to request the finalisation of the judgment but was informed that this was ongoing and could not be accelerated.
6. On 2 March 2018 the applicant asked the deputy prosecutor at the Court of Cassation to lodge another appeal, this time on points of law, against the acquittal judgment in respect of the parts which had not been subject to the appeal of 6 November 2017. By decision no. 2355 issued on 5 March 2018 the prosecutor dismissed the applicant’s request. She held that the time-limit for the appeal on points of law had expired in accordance with Article 473 § 3 of the Code of Criminal Procedure, “because the relevant judgment was delivered on 25 October 2017 and registered in the special book on 7 February 2018, namely more than two months after its delivery”. It further cited judgment no. 1104/2015 of the Court of Cassation, confirming such practice of calculation of time-limits.
7. In accordance with Article 505 § 2 in conjunction with Articles 479 and 483 § 3 of the Code of Criminal Procedure, as applicable at the time, the time-limit for the prosecutor at the Court of Cassation to lodge an appeal on points of law was one month. Article 473 § 3, as amended by Law no. 4274/2014 and applicable at that time, provided:
“Judgments issued at first instance which were subject to appeal are registered, after their finalisation, in the special book [kept at the registry of the criminal court] if the prosecutor at the Court of Cassation requests so. The time-limit for the prosecutor to lodge an appeal on points of law starts from the registration, which takes place within two months from the delivery of the judgment”.
8. Relying on Article 6 § 1 of the Convention, the applicant complains that the dismissal by the deputy prosecutor of his request for an appeal on points of law was based on an excessively formalistic interpretation of Article 473 § 3 of the Code of Criminal Procedure and on factors which were not dependent on his conduct, as it made the registration of a judgment within two months from its delivery an admissibility requirement which was not supported by the relevant provisions. This, combined with the deficiencies and delays in the finalisation of judgment, deprived him of access to a court.
THE COURT’S ASSESSMENT
9. The Government argued that the applicant lacked victim status and that the application should be declared inadmissible as being manifestly ill‑founded because the right to lodge an appeal on points of law did not belong to the applicant but to the deputy prosecutor, who had considered that the conditions for this were not met. The Government raised, in substance, a ratione materiae objection. The Government also considered that any errors of law as well as the lack of reasoning could be raised in appeal. An appeal on points of law is therefore only lodged by the prosecutor of the Court of Cassation in exceptional cases. The applicant had the opportunity to raise any arguments in his request to the prosecutor at the Court of Appeal. The latter examined these grounds and lodged an appeal only for an alleged error in the assessment of evidence in respect of the falsification of certificates.
10. The applicant affirmed the civil nature of the proceedings at issue. He further argued that the registration of the judgment within two months from its delivery was not an admissibility requirement provided by the Code of Criminal Procedure; the failure to have it registered within that time was attributed to the conduct of the registry of the court while he could not have taken any other relevant action to ensure it.
11. In so far as the Government has questioned the applicability of Article 6, the Court recalls, first, that the situation of a civil party’s request to the prosecutor at the Court of Cassation to lodge an appeal on points of law has been examined in the Court’s judgment Gorou v. Greece (no. 2) ([GC], no. 12686/03, §§ 37-42, 20 March 2009), where it concluded, inter alia, that in view of the specific features of this procedure, Article 6 § 1 of the Convention is applicable to it, and its guarantees have to be applied in the light of the relevant circumstances and practice. The Court sees no reasons to depart from that conclusion in the present case (see the recent summary of the relevant principles in Fabbri and Others v. San Marino ([GC], nos. 6319/21 and 2 others, §§ 77-93, and in particular § 79, 24 September 2024).
12. As regards the right of access to a court, the applicable general principles have been set out in a long line of cases (see, for instance, Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 84-90, 29 November 2016). In laying down the regulations of access to courts, the Contracting States enjoy a certain margin of appreciation. The limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. A limitation 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.
13. The limitation to the applicant’s right of access to a court in the present case derived from the dismissal of his request of 2 March 2018 to the deputy prosecutor to launch an appeal on points of law. The prosecutor found that more than two months had passed between the delivery of the judgment on 25 October 2017 and its registration on 7 February 2018, and the time-limit has therefore expired (see paragraph 6 above).
14. This procedural requirement was aimed at ensuring the legitimate aim of the proper administration of justice and compliance with the principle of legal certainty, in particular with regard to the protection of the rights of the accused.
15. First, the Court notes that the applicant, who was represented by lawyers throughout the procedure, was able to lodge the request for appeal through the deputy prosecutor at the Athens Criminal Court of Appeal in good time, and that appeal was adjudicated (see paragraph 4 above). In that regard, the Court attaches particular importance to the Government’s argument that the applicant had the opportunity to timely raise any relevant arguments relating to legal errors in the acquittal judgment and also that an appeal on points of law is launched by the prosecutor at the Court of Cassation only in exceptional cases. The Court also notes that the applicant did not adduce before the Court his request for an appeal or his request for an appeal on points of law. He did not explain the grounds for the latter or how they would be different from those which were raised in his request for appeal and examined by the competent prosecutor who had lodged an appeal in November 2017 (compare and contrast with Aepi S.A. v. Greece, no. 48679/99, § 26, 11 April 2002, and Karantalis v. Greece [Committee], no 67398/14, § 16, 31 January 2023).
16. Turning to the limitation at issue, as the Court has already held, following an acquittal the civil party was not entitled to appeal directly on points of law or to seek redress from the prosecutor at the Court of Cassation, but there was an established judicial practice that the civil party, by a request to the prosecutor, drew the prosecutor’s attention to certain specific circumstances of the case, while the prosecutor remained free to decide to lodge an appeal on points of law (see Gorou, cited above, §§ 38-42). This practice should be taken into account in assessing the dismissal of the applicant’s request in the present case.
17. The Government adduced a series of judgments of the Court of Cassation in which it applied the statutory requirement provided for in Article 473 § 3 of the Code of Criminal Procedure, including judgment no. 1104/2015 which was cited by the deputy prosecutor in her response to the applicant (see paragraph 6 above). In these judgments the Court of Cassation held that the prosecutor at the Court of Cassation may lodge an appeal on points of law within one month from when the impugned judgment is registered on the initiative of the prosecutor or the court’s president, provided that this takes place within two months from its delivery. The Court finds therefore that in view of the domestic law and judicial practice the conclusion that an appeal on points of law lodged outside of these time-limits would be considered inadmissible was foreseeable and accessible to the applicant; it was also interpreted in this way by the deputy prosecutor who had the discretion to request that the judgment be registered within two months of its delivery (see, in particular, Aepi S.A., § 27, and Karantalis, § 16, both cited above, on the prosecutor’s competence in procedural matters).
18. In the light of the above, the Court finds that the limitation of the applicant’s right of access to court was based on lawful grounds that were not applied arbitrarily or unreasonably. There is nothing to suggest that there was an unjustified inaction on the part of the prosecutor or that any other exceptional element would amount to a serious dysfunction in the domestic system at the relevant time (see Fabbri and Others, cited above, §§ 137-40).
19. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 April 2025.
Olga Chernishova Peeter Roosma
Deputy Registrar President