AS TO THE ADMISSIBILITY OF
Application No. 22937/93
by Z.,S.,G. & V. I.
against Greece and the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 22 February 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 16 November 1993
by Z., S., G. and V. I. against Greece and the United Kingdom and
registered on 17 November 1993 under file No. 22937/93;
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 applicants are Greek citizens born in 1947, 1922, 1943 and
1945 respectively. The first applicant resides in London and the
remaining three in Athens. The second applicant is the first
applicant's mother and the third and fourth applicants the first
applicant's brothers. In the proceedings before the Commission the
second, third and fourth applicants are represented by the first
applicant.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows:
In August 1982 the first applicant, who was an established
business woman in the United Kingdom, became the General Manager of A
United Kingdom S.A. (herein after A), a Greek public sector company set
up to help the farming community of Greece export their products
throughout the EEC. In early 1986 a dispute arose between the first
applicant and A.
a) Criminal Proceedings against the first applicant in the United
Kingdom
On 23 April 1986 the Managing Director of A complained to the
London police that the first applicant had stolen a sum of money from
that company.
On 30 April 1986 the police arrested the first applicant, seizing
at the same time a large quantity of valuable property and documents.
The applicant was charged with having stolen money from A and having
conspired with two others to steal a golden watch belonging to "X
Jewellers". She was remanded in custody.
The applicant was detained in Holloway prison. The police opposed
consistently and successfully all the applicant's requests to be
released on bail.
On 4 June 1986 the United Kingdom prosecuting authorities
requested the judicial assistance of the Greek authorities.
On 12 January 1987 the applicant was visited by officers of the
Metropolitan Police in prison who allegedly mocked her.
On 3 April 1987 the first applicant was arraigned before the
Inner London Crown Court and pleaded not guilty to two charges of theft
involving 745,402.31 pounds allegedly missing from A's accounts.
On 26 April 1987 the applicant, who was still in detention,
underwent an operation for a perforated ulcer and a peritonitis.
On 2 July 1987 the prosecution addressed, via Interpol, a request
to the public prosecutor of the Court of Appeal of Athens to authorise
the taking of evidence in Greece by the United Kingdom investigating
authorities.
The first applicant's trial opened on 5 August 1987 before the
London Crown Court. The prosecution obtained leave to amend the
indictment limiting it to ten counts of theft involving 394,798.36
pounds. The applicant was re-arraigned and pleaded not guilty to all
ten charges. She contended that she had herself financed the London
operation of A, that she was an independent agent on 4% commission and
that A still owed her substantial monies. On 28 August 1987 the
applicant was acquitted of all charges.
Between 14 and 16 September 1987 the applicant was tried on the
conspiracy charges. The prosecution offered no evidence and she was
acquitted.
In early 1988 the applicant requested the Clerkenwell
Magistrates' Court to issue her with a copy of the warrant of her
arrest. On 15 March 1988 the senior chief clerk replied to the
applicant that he could not find a copy of the warrant, despite an
extensive search of his records.
On 22 June 1988 the first applicant was arrested in connection
with other jewellery found in her possession on 30 April 1986. She was
charged with five offences of handling stolen goods. On 31 October 1988
a Magistrates' Court dismissed the prosecution as oppressive.
In 1991 the first applicant sought confirmation from leading
counsel for the prosecution, the Crown Prosecution Service and the
trial judge that the charges in respect of which she was acquitted on
28 August 1987 were specimen charges which had replaced the blanket
charges in the first indictment. Such confirmation was, however, not
forthcoming. In a letter dated 11 March 1991, the Chief Crown
Prosecutor stated that "it is possible that the ten counts were simply
selected as being the strongest available and did not preclude the
possibility of other charges being preferred, particularly if further
evidence came to light".
The first applicant claims that she was recently informed by the
police authorities that she was suspected of the bombing of the Israeli
embassy in London on 26 July 1994.
She further claims that on 11 October 1994 she was threatened by
police officers that, if she did not withdraw the present application,
"she would be cut in half".
b) Civil and other proceedings against the first applicant in the
United Kingdom
In addition to complaining to the police about the alleged theft,
A brought a civil action for damages against the first applicant
claiming the total amount for the theft of which the applicant had been
charged in the criminal case. On 27 May 1986 A obtained a Mareava
injunction freezing all the applicant's assets.
Following her acquittal of the criminal charges, the applicant
applied for A's claim to be struck out for want of prosecution and for
the Mareava injunction to be discharged. On 13 February 1989 the
Chancery Division of the High Court of Justice pronounced in favour of
the applicant and ordered A to bear the costs of the proceedings.
In July 1989 the first applicant received back a large part of
the goods seized by the police at the moment of her arrest. She
instituted proceedings before the High Court of Justice seeking the
recovery of the remaining items in respect of which the police had
invited claims from the purported lawful owners under the Police
Property Act. At the time of the filing of the present application
these proceedings were still pending.
While the applicant was in detention her husband instituted
divorce, maintenance and property settlement proceedings against her.
Interpleader proceedings in respect of a sum held for the first
applicant by her solicitors were also commenced.
The first applicant and her husband were divorced. The outcome
of the maintenance and property settlement proceedings was not
favourable to the applicant. The applicant's second marriage has also
broken up. The interpleader proceedings are still pending.
The applicant is finally involved in a dispute with the Inland
Revenue Authorities.
c) Criminal proceedings against the applicants in Greece
On 6 June 1986 the Managing Director of A lodged with the Public
Prosecutor of Athens a criminal complaint against the first applicant
in Greece for having embezzled money from A and against the second,
third and fourth applicants for having received part of that money.
On 18 June 1986 the public prosecutor of Athens ordered a full
criminal inquiry into the complaint.
On 10 September 1987 and 21 November 1988 the Athens
investigating judge requested the assistance of the United Kingdom
authorities.
On 11 April 1990 the Greek authorities were informed, via
diplomatic channels, that the Crown Prosecution Service did not intend
to bring further criminal proceedings against the first applicant in
the United Kingdom "because of the number of aborted attempts to
convict her and the almost inevitable success of an abuse of process
argument". The Crown prosecution further declined to comply with the
request of the Greek authorities to furnish them with a transcript of
the first trial, because of the costs involved in obtaining one.
On 28 June 1990 the public prosecutor of the Athens Court of
Appeal requested the public prosecutor of the Athens first instance
court to obtain a full copy of the decision of 28 August 1987 of the
London Crown Court acquitting the first applicant and of the transcript
of the proceedings. In the opinion of the prosecutor of the appeal
court, this was considered necessary to establish the extent of res
judicata, the existence of which would preclude the first applicant's
prosecution in accordance with Article 9 of the Greek Criminal Code.
The public prosecutor of the first instance court referred the
request to the investigating judge. On 31 July 1990 the investigating
judge refused to pursue the matter further on the basis of the United
Kingdom authorities' failure to comply with similar requests in the
past. The judge noted that a copy of the indictment of the first
applicant in the United Kingdom and an excerpt of the court's decision
were available in the case-file. In the judge's view, it was
established on this basis that the various sums for the embezzlement
of which the first applicant was charged in Greece were different from
those for which she had been indicted and acquitted in the United
Kingdom.
On 26 November 1990 the public prosecutor of the Court of Appeal
proposed that the first applicant be committed for trial for having
embezzled from A 358,471.50 pounds. He also proposed that the second,
third and fourth applicants be committed for trial for having received
part of the above-mentioned sum. The public prosecutor considered that
the sums for the embezzlement of which the applicant would be committed
for trial in Greece were different from those in respect of the
embezzlement of which she had been acquitted in the United Kingdom. He
further proposed that the case should be heard at first instance by the
three-member Court of Appeal (trimeles efeteio) because of the nature
of the charges against the first applicant.
The Athens Court of Appeal, sitting in chambers, decided on the
same day to commit the four applicants for the above-mentioned charges
before the court proposed by the public prosecutor. It also renewed the
warrant of arrest which had been issued by the investigating judge
against the first applicant on a date which cannot be established on
the basis of the file.
The case was heard by the three-member Court of Appeal of Athens
on 11 March 1991. Since the first applicant was still evading justice,
the court decided to sever her case from that against the other three
applicants. Since the committal of the second, third and fourth
applicants before the court of appeal was based on the assumption that
they would be tried together with the first applicant, the court
decided to commit the former before the three-member first instance
criminal court (trimeles plimeleiodikeio) of Athens.
On 8 October 1991 the three-member first instance criminal court
of Athens found the second, third and fourth applicants guilty of
having received part of the money which the first applicant had
embezzled from A. Their conviction was upheld by the three-member Court
of Appeal of Athens on 19 March 1993.
At a date which has not been specified the Court of Cassation
(Areios Pagos) reversed the second, third and fourth applicants'
conviction and remanded the case before of the Court of Appeal. On
27 January 1994 the three-member Court of Appeal of Athens acquitted
the second, third and fourth applicants. No appeal in cassation having
been lodged against that decision by 9 September 1994, their acquittal
became final.
The criminal proceedings against the first applicant are still
pending.
d) Civil proceedings against the applicants in Greece
On 13 May 1986 the single-member first instance civil court
(monomeles protodikeio) of Athens, acting on an application by A,
ordered, by way of interim measures, the seizure of the first
applicant's assets.
On 8 July 1986 A brought a civil action against the first
applicant before the three-member first instance civil court (trimeles
protodikeio) of Athens claiming 661,093.24 pounds. The action was
dismissed on technical grounds.
On 23 April 1987 a second civil action was brought by A against
the applicant before the three-member first instance civil court of
Athens. Upon the applicant's acquittal in the United Kingdom the action
was withdrawn.
On 28 March 1988 A brought a third civil action against the four
applicants before the three-member first instance civil court of Athens
seeking recovery of the money allegedly stolen by the first applicant.
The case was stayed to await the outcome of the civil proceedings
instituted against the first applicant in the United Kingdom.
On 6 March 1989 A applied again for interim measures against the
first applicant before the single-member first instance civil court of
Athens. In June 1989 the court of Athens dismissed the application.
On 21 May 1993 the single-member first instance civil court of
Athens ruled that a previous order seizing part of the first
applicant's real estate could be discharged upon the applicant's
providing a bank letter guaranteeing the payment of GDR 45,000,000 by
way of security. The first applicant has not been able to-date to
obtain such a letter.
On 19 July 1993 the three-member first instance civil court of
Athens heard A's civil action of 28 March 1988. It ordered the second,
third and fourth applicants to pay the plaintiff GDR 172,117,056.21
plus interest and the costs of proceedings. The case against the first
applicant was remanded to the single-member first instance civil court
of Athens to be tried in accordance with the special procedure applying
in disputes between employer and employee.
The second applicant suffered a series of strokes and a heart
attack and the fourth applicant pneumonia.
COMPLAINTS
1. The first applicant complains about the legality of her pre-trial
detention in the United Kingdom. She argues that she was arrested and
detained without a warrant. She submits, in this connection, that no
copy could be found of the warrant that was allegedly issued by the
Clerkenwell Magistrates Court in April 1986. She further submits that
her detention was the result of a conspiracy and collusion between the
police, A and other parties. The first applicant also complains about
the length of her pre-trial detention in the United Kingdom which
lasted 16 months. She invokes in general Article 5 of the Convention.
2. The first applicant complains of a violation of Article 3 of the
Convention. She complains in this connection of the conditions and
length of her detention in the United Kingdom, which resulted in
serious damage for her health, the leaking of information concerning
her trial, which resulted in the publication of degrading and
humiliating reports in the Greek press, the repeated attempts by the
Metropolitan Police to have her convicted and the failure of the United
Kingdom authorities to provide all the necessary information concerning
her acquittal to the Greek judicial authorities. She also submits that
she was humiliated by officers of the Metropolitan police who visited
her in prison on 12 January 1987 and that the police have instigated
the involvement of the Inland Revenue in her case.
3. The first applicant complains that the United Kingdom authorities
have violated and continue to violate Article 4 of Protocol No. 4 by
trying to convict her of other offences after her initial acquittal in
the proceedings concerning the alleged theft from A.
4. The first applicant complains that the Greek authorities violated
Article 5 and 6 of the Convention and Article 4 of Protocol No. 4 by
prosecuting her for offences of which she had been acquitted in the
United Kingdom.
5. The first applicant complains of a violation of Article 12 of the
Convention in that the court proceedings against her and the subsequent
harassment led to the successive breaking up of her two marriages.
Moreover, as a result of the criminal proceedings pending against her
in Greece, she is unable to enjoy a normal family life with her mother
and brothers. The first applicant does not invoke any provisions of the
Convention in relation to the latter complaint.
6. The second, third and fourth applicants complain that they were
prosecuted in Greece despite the first applicant's acquittal in the
United Kingdom. They do not invoke any articles of the Convention.
THE LAW
1. The first applicant complains under Article 5 (Art. 5) of the
legality and length of her pre-trial detention in the United Kingdom.
The Commission notes that the first applicant's pre-trial
detention in the United Kingdom ended on 28 August 1987. It also notes
the applicant's allegations that it was only on 15 March 1988 that she
started suspecting that she had been detained without an arrest
warrant.
The Commission recalls that the present application was
introduced on 16 November 1993. Even assuming that there were no
effective remedies which the applicant could have exhausted, the
Commission considers that in these circumstances the particular
complaint has not been introduced within the six months period provided
for under Article 26 (Art. 26) of the Convention.
As a result, this part of the application must be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
2. The first applicant complains that she has been subjected to
inhuman and degrading treatment contrary to Article 3 (Art. 3) of the
Convention in the context of the criminal proceedings instituted
against her in the United Kingdom.
The Commission recalls the case-law of the Court in accordance
with which ill-treatment must attain a minimum level of severity before
a breach of Article 3 (Art. 3) can be established (cf. Eur. Court H.R.,
Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 162). Even assuming that the applicant has exhausted
domestic remedies, the Commission considers that there is no evidence
that the above threshold has been reached in the circumstances of the
present case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The first applicant complains of the second and third criminal
proceedings instituted against her in the United Kingdom after her
initial acquittal in the proceedings concerning the alleged theft from
A. She further claims that she is currently threatened with a fourth
prosecution. She invokes in this connection Article 4 of Protocol
No. 4 (P4-4).
The Commission considers that Article 4 of Protocol No. 4
(P4-4), which prohibits the collective expulsion of aliens, cannot be
of any relevance to the applicant's complaint. Insofar as it can be
assumed that the applicant wishes to complain of a violation of the
principle of ne bis in idem, the Commission considers that, even
assuming that the United Kingdom can be held accountable under the
Convention for a violation of this principle, there is no evidence that
the second and third prosecution against the applicant related to the
same facts as the first one. It also considers that the applicant's
allegations concerning a fourth prosecution have not been
substantiated.
As a result, this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The first applicant complains under Articles 5 and 6
(Art. 5, 6) of the Convention and Article 4 of Protocol No. 4 (P4-4)
of the criminal proceedings instituted against her in Greece,
notwithstanding her acquittal in the United Kingdom.
The Commission notes that, although an arrest warrant has been
issued against her, the applicant has not been subjected to any form
of deprivation of liberty in Greece. The Commission considers that, in
these circumstances, the applicant cannot claim to be a victim under
Article 25 (Art. 25) of the Convention of a violation of Article 5
(Art. 5) thereof. This complaint is, therefore, incompatible ratione
personae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
The Commission further notes that the applicant claims that she
is tried in Greece for an offence in respect of which she has already
been acquitted in the United Kingdom. The Commission recalls, however,
that neither the Convention nor any of the additional Protocols does,
either expressly or implicitly, guarantee the principle of ne bis in
idem in respect of convictions in different States (No. 1519/62,
27.3.63, Collection 10 p. 59; No. 7680/76, 16.5.77, D.R. 9 p. 190;
No. 8945/80, 13.12.83, D.R. 39 p. 43; 11069/84, 7.9.89, D.R. 62 p. 5).
It follows that this complaint is incompatible ratione materiae with
the provisions of the Convention within the meaning of Article 27 para.
2 (Art. 27-2).
5. The first applicant complains of the effects that the criminal
proceedings against her in the United Kingdom and in Greece had on her
family life. She invokes in this connection Article 12 (Art. 12) of the
Convention.
The Commission recalls that Article 12 (Art. 12) of the
Convention guarantees the right of men and women of marriageable age
to marry and to found a family, according to the national laws
governing the exercise of this right. The right to respect for
somebody's private and family life, home and correspondence is,
moreover, guaranteed by Article 8 (Art. 8) of the Convention.
Insofar as the first applicant complains that she is unable to
enjoy a normal family life with the second, third and fourth applicants
as a result of the criminal proceedings pending against her in Greece,
the Commission recalls that the institution of the criminal proceedings
against the first applicant in Greece does not disclose in itself an
appearance of a violation of the Convention. It further notes that,
prior to the institution of the proceedings against her, the first
applicant had been living for a number of years away from the remaining
applicants in the United Kingdom. Furthermore, the first applicant does
not allege that the third and fourth applicants are in any manner
prevented from visiting her in the United Kingdom, neither has she
established that she would be denied permission to visit the second
applicant, who appears to be bed-ridden, should she decide to subject
herself to Greek justice. The Commission considers that, in these
circumstances, no appearance of an interference with the first
applicant's right to family life is disclosed. As a result, this part
of the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
As regards the first applicant's allegations that the criminal
proceedings against her led to the successive breakdown of her two
marriages, the Commission considers that, insofar as the matters
complained of have been substantiated and are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. As a result, this
part of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
6. The second, third and fourth applicants complain that they were
prosecuted in Greece despite the first applicant's acquittal in the
United Kingdom. They do not invoke any articles of the Convention.
The Commission notes that the applicants were never prosecuted
in the United Kingdom and that they were finally acquitted in Greece.
In these circumstances, they cannot claim to be victims under Article
25 (Art. 25) of the Convention of a violation of any of its provisions.
As a result, this part of the application is incompatible ratione
personae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber Acting President of the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy