(Application no. 41762/08)
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:
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:
1. 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.
2. 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.
3. 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 CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1963 and he is currently imprisoned in Korydallos.
5. On 22 October 2004 criminal complaints were brought against him by the Athens First Instance Prosecutor for procuring and repeated rape.
6. 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).
7. On 19 July 2006 the Athens First Instance Criminal Court convicted the applicant and sentenced him to ten years' imprisonment (judgment no. 2439/2006).
8. 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.
9. By judgment dated 4 May 2009 the Court of Appeal dismissed the applicant's allegations (judgment no. 1245/2009).
10. 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.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF UNREASONABLE LENGTH OF PROCEEDINGS
11. 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...”
12. The Government contested that argument.
13. 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.
14. 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.
15. 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)
16. 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).
17. 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
18. 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.
19. 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).
20. 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
21. 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.”
22. 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
1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. 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
Deputy Registrar President
TSIVELIS v. GREECE JUDGMENT
TSIVELIS v. GREECE JUDGMENT