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You are here: BAILII >> Databases >> European Court of Human Rights >> STAMOULAKATOS v. GREECE - 12806/87 [1993] ECHR 48 (26 October 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/48.html Cite as: [1993] ECHR 48, (1994) 17 EHRR 479, 17 EHRR 479

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In the case of Stamoulakatos v. Greece*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr B. Walsh,

Mr C. Russo,

Mr N. Valticos,

Mrs E. Palm,

Mr A.N. Loizou,

Mr F. Bigi,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 23 April and

20 September 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 30/1992/375/449. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 11 September 1992, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 12806/87) against the Hellenic Republic lodged with

the Commission under Article 25 (art. 25) by a Greek citizen,

Mr Nicolas Stamoulakatos, on 18 July 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 paras. 1 and 3 (art. 6-1, art. 6-3).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30), to whom the President gave leave to

address the Court in Greek (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr N. Valticos, the elected judge of Greek nationality (Article 43 of

the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 26 September 1992, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Matscher, Mr B. Walsh, Mr C. Russo, Mrs E. Palm,

Mr A.N. Loizou, Mr F. Bigi and Mr L. Wildhaber (Article 43 in fine of

the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Greek

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the order made in consequence, the

Registrar received the Government's memorial on 17 February 1993. In

a letter of 5 February 1993 the applicant's lawyer had indicated that

he no longer intended filing a memorial. On 20 March the Secretary to

the Commission made it known that the Delegate would submit his

observations at the hearing.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 April 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr V. Kondolaimos, Adviser to the

Legal Council of State, Delegate

of the Agent;

(b) for the Commission

Mr C.L. Rozakis, Delegate;

(c) for the applicant

Mr A. Vyrinis, dikigoros (lawyer), Counsel.

The Court heard addresses by them and also replies to its

questions.

AS TO THE FACTS

6. Mr Nicolas Stamoulakatos, a Greek national, is a retired

journalist. He currently lives in London.

Before the material time, he had been convicted by the Salonika

Criminal Court of forgery, uttering and fraud, in 1974, and by the

Agrinion Criminal Court for insulting the authorities, in 1979.

Furthermore, in 1978 and 1979 eight separate sets of proceedings were

brought against him in the Athens Criminal Court for insulting a public

officer, fraud, defamation, misappropriation, forgery, uttering and

causing bodily harm. All these proceedings took place in the

applicant's absence; three sets of them are in issue before the Court.

A. The applicant's convictions

1. The conviction for insulting the authorities

7. On 5 April 1979 in a telegram sent to several public figures,

including the Greek President and various ministers, and to the press,

the applicant described certain members of the public prosecutor's

office and the Indictment Division of the Court of Cassation as

"collaborators of the colonels' regime", "chief torturers", "admirers

of Adolf Hitler", "perjurers", "agents of death", "fabricators of

incriminating evidence against democrats", "justicemongers" and

"trainers of fascists". The telegram, which was signed by

Mr Stamoulakatos, also gave his professional address at

59 Panepistimiou Street, Athens.

8. An investigating judge at the Athens Criminal Court summoned

Mr Stamoulakatos for questioning in connection with an investigation

he had started in respect of him. The court bailiff took the summons

to 59 Panepistimiou Street and as he did not find the applicant there,

gave it to Mr Masson, a lawyer who had his office at the same address.

The applicant confirmed by telegram that he had been informed of the

summons, but he failed to appear.

9. On 15 May 1979 a police officer served on him a summons to

appear before the Criminal Court to answer a charge of insulting a

public officer. Since he was unable to serve it on the applicant in

person, he gave the document to Mr Vassilakis, one of

Mr Stamoulakatos's colleagues (pursuant to Article 155 of the Code of

Criminal Procedure); the applicant did not appear at the hearing on

25 May 1979.

10. After ruling that the defendant had been properly summoned, the

Criminal Court decided to hear the case and to give judgment "as if

[the defendant] were present" (under Article 340 para. 3 of the Code

of Criminal Procedure). After two prosecution witnesses and the

prosecutor had been heard, Mr Stamoulakatos was convicted and sentenced

to two years' imprisonment. The judgment (no. 16438/1979) was filed

at Athens Town Hall on 12 November 1979, as the authorities regarded

the applicant as having no known address (Article 156 para. 2 of the

Code of Criminal Procedure).

2. The conviction for fraudulent conversion of securities

and slander

11. On 28 August 1979 an investigating judge at the Athens Criminal

Court decided to interview the applicant about a complaint lodged by

a Mrs Kritikou. The summons was taken to 59 Panepistimiou Street and

again given to Mr Masson; Mr Stamoulakatos failed to appear.

12. On 12 September 1979 Mrs Papargyriou, an employee of the

applicant's, informed the investigating judge that Mr Stamoulakatos had

been in New York since 10 May 1979 and gave him his address.

On 15 February 1980 the public prosecutor's office served a

summons to appear before the Criminal Court at the applicant's

professional address in Athens; it was handed over to Mrs Papargyriou

(pursuant to Article 155 previously cited).

13. On 3 March 1980 the Criminal Court decided (under

Article 340 para. 3 previously cited) to proceed with the trial

notwithstanding the absence of the defendant, who had, it ruled, been

properly summoned. It imposed a sentence of eight months'

imprisonment, which it converted into a fine. The judgment

(no. 8439/1980) was lodged on 19 September 1980 at Athens Town Hall on

the ground that neither the prosecuting authority nor the authority

responsible for effecting service knew Mr Stamoulakatos's address.

3. The conviction for forgery and uttering

14. Mrs Kritikou having made a second complaint, the applicant was

charged with forgery and uttering in that he had altered the wording

of a cheque he had received from her and had attempted to cash it.

On 13 October 1980 a police officer delivered the summons to

appear before the Criminal Court to 59 Panepistimiou Street. When he

found that the applicant was "unknown" at that address, had not

communicated any other to the public prosecutor's office and had no

relatives on whom service could be effected, he lodged the summons at

Athens Town Hall (pursuant to Article 156 para. 2 previously cited).

15. The Criminal Court proceeded despite Mr Stamoulakatos's

absence, and on 11 December 1980 he was convicted and given an

immediate custodial sentence of two years. The judgment

(no. 42211/1980) was delivered to Athens Town Hall (pursuant to

Article 156 para. 2 previously cited).

B. The applicant's appeals

16. Mr Stamoulakatos states that he left Greece in May 1979 but he

does not give the exact date of his departure. He went to New York and

then London, where he worked until 1985 as a journalist. Following two

convictions by Acton Crown Court, he went to Cyprus and then to

Belgium, where he was arrested on 19 September 1985 and extradited to

Greece on 23 December. He was imprisoned at Ioannina and later at

Piraeus and was conditionally released on 7 April 1987.

While he was serving his sentence, he appealed against the

three judgments of the Athens Criminal Court (see paragraphs 10, 13 and

15 above). He complained that he had not been duly summoned and that

he had therefore been unable to defend himself against the charges

against him; he also complained that service of the judgments had been

irregular.

1. The appeals against judgment no. 16438/1979

17. On 21 July 1986 Mr Stamoulakatos appealed to the Athens Court

of Appeal against judgment no. 16438/1979 (see paragraph 10 above).

18. In a judgment of 29 October 1986 the Court of Appeal declared

the appeal inadmissible for the following reasons:

"...

The judgment was served on him on 12 November 1979, as

appears from the record of service made by the bailiff

T. Vassilas. He appealed on 21 July 1986, after the statutory

time-limit, without indicating in his pleadings any valid

reason for appealing out of time;

The evidence discloses no circumstance that would justify a

late appeal, and the court is not convinced that the defendant

was prevented by force majeure from lodging an appeal in time.

The appeal must consequently be declared inadmissible since,

irrespective of the fact that the defendant has not stated

what his known address was at the time of service or why he

did not appeal in time, it has not been proved at all that the

impugned service was void. It has been established, on the

contrary, that it was lawful, as the prosecuting authorities

did not know where the defendant lived. The allegation of

forgery in respect of the record of service is wholly

unfounded and ... an investigation of the point would clearly

be devoid of purpose since, at all events, the defendant was

aware of his conviction from the end of 1985, when he was

extradited to Greece.

..."

19. The applicant lodged an appeal on points of law, which the

Court of Cassation dismissed on 13 February 1987, holding that the

Court of Appeal had provided sufficient reasons for its decision.

20. On 2 January 1990 Mr Stamoulakatos made an application for a

retrial (aitissi epanalipseos tis diadikassias) under Article 525 of

the Code of Criminal Procedure to the Indictment Division of the Athens

Court of Appeal. He relied on Article 4 para. 2 of Protocol No. 7

(P7-4-2) to the Convention and asked for judgment no. 16438/1979

(see paragraph 10 above) to be set aside.

The Indictment Division dismissed the application on

14 February 1991. It noted that the impugned summons had been taken

to Mr Stamoulakatos's professional address, which was known to the

authorities at the time, and handed to one of his colleagues. The

trial in absentia which followed was therefore in no way contrary to

Article 6 (art. 6) of the European Convention or to the European

Court's judgment of 12 February 1985 in the Colozza v. Italy case

(Series A no. 89).

The applicant appealed on points of law against that decision

on 14 May 1991, but the Court of Cassation dismissed the appeal on

23 December 1991 for failure to comply with the 30-day time-limit laid

down in Article 473 para. 1 of the Code of Criminal Procedure.

2. The appeals against judgment no. 8439/1980

21. On 16 July 1986 the Athens Court of Appeal declared an appeal

by the applicant against judgment no. 8439/1980 (see paragraph 13

above) inadmissible. It said, inter alia:

"...

No evidence has been adduced that justifies appealing out of

time and the Court is not persuaded that the defendant was

prevented by force majeure from appealing before the statutory

time-limit. More particularly, he alleged that on

19 September 1980 his address was not unknown and that service

of the judgment appealed against, effected according to the

rules applicable to persons whose address is unknown, was not

valid; in the alternative, he submitted that it was not valid

because it was lodged at Athens Town Hall and not at the town

hall of Paleo Faliro. As to this contention, the court notes

the following: from the record of service of 19 September 1980

it appears that the officer responsible for service went to

the defendant's last known address, namely 59 Panepistimiou

Street, Athens, and that finding neither the defendant nor his

wife nor any of his relatives, he lodged the document to be

served with the mayor of Athens, who displayed it on the very

same day in the appropriate place ... . It should be

emphasised that the fact that the defendant formerly lived at

59 Panepistimiou Street ... had been certified at the

investigation stage and that this was why - as was disclosed

in the record of service of the summons of 28 August 1979 to

appear before the investigating judge - service was effected

at that address and on the person who shared that address with

the defendant. It should furthermore be noted that the

offices of the newspaper International Free Observer were at

that address, its headquarters - according to its issue of

16 September 1980 - being in New York, where the defendant was

its correspondent ... . On 17 June 1980 [the defendant], in

a complaint to the Athens public prosecutor's office,

confirmed that he lived in New York (without giving any

address) and that he was temporarily living in London, at

29 Summer Place, London SW7, England. Two days before the

impugned service ..., i.e. on 17 September 1980, the European

Commission of Human Rights had drawn up a document giving the

defendant's address (evidently supplied by him) as 41 Old

Brompton Road, GB - London SW7. No other evidence was adduced

concerning the defendant's permanent or temporary address ...

during the period from 3 March 1980 ... to 19 September 1980.

Evidence was, on the other hand, brought from the period after

[this latter date] (such as the documents from the

Consulate-General of Greece in London ..., which give the

defendant's address as 10 Townsend Way, Northwood, Middlesex

HA 1TF, London, and an envelope from the European Commission

of Human Rights date-stamped 7 March 1986 and addressed to the

applicant at 1-2, Poseidonos Avenue, Paleo Faliro); however,

since this evidence refers to a period well after

19 September 1980, it does not suffice to establish that the

defendant had a known address, in particular one known to the

authorities responsible for service and for the prosecution.

All the aforementioned evidence shows ... that on

19 September 1980 the defendant's address really was unknown:

he had left 59 Panepistimiou Street in Athens, his known

address until then, and was travelling between his (unknown)

address in New York and his temporary addresses in London, the

nearest of which in time to 19 September 1980

- 41 Old Brompton Road, GB - London SW7 - was known neither to

the Greek prosecuting authority nor to the authority

responsible for service.

The defendant's submission must therefore be rejected as

being ill-founded.

Since nothing proves that the appeal was brought out of time

owing to force majeure (which the notice of appeal does not

even claim) ..., the appeal must be declared inadmissible.

..."

22. Mr Stamoulakatos brought an appeal on points of law, which the

Court of Cassation dismissed on 4 November 1986. Having been summoned

to appear while he was serving his sentence, he did not attend.

23. On 2 January 1990 he made an application for a retrial to the

Indictment Division of the Athens Court of Appeal. He relied on

Article 4 para. 2 of Protocol No. 7 (P7-4-2) to the Convention and

asked for judgment no. 8439/1980 (see paragraph 13 above) to be set

aside.

On 14 February 1991 the Indictment Division dismissed the

application on the ground that the file disclosed no procedural defect

and that the trial in absentia had not in any way been contrary to

Article 6 (art. 6) of the Convention or to the Colozza judgment. It

noted that the summons to appear before the Criminal Court, which had

been delivered to the address at which the applicant submitted that it

should have been served on him at the time, had been given to

Mrs Papargyriou pursuant to Article 155 para. 1 of the Code of Criminal

Procedure. Furthermore, Greek national law did not oblige the court

to assign counsel officially to defend a person accused of a criminal

offence. Lastly, Mr Stamoulakatos had not pleaded any impediment such

as would have justified adjourning the hearing (Article 349 of the Code

of Criminal Procedure).

On 14 May 1991 the applicant appealed on points of law against

that judgment, but on 23 December 1991 the Court of Cassation dismissed

the appeal for failure to comply with the 30-day time-limit laid down

in Article 473 para. 1 of the Code of Criminal Procedure.

3. The appeals against judgment no. 42211/1980

24. On 24 December 1985 the applicant lodged an appeal against

judgment no. 42211/1980 (see paragraph 15 above) and made an

application (under Article 430 of the Code of Criminal Procedure) to

have the judgment set aside. He withdrew the appeal on

27 January 1986. On 19 March 1986 the Athens Criminal Court ruled that

the application was admissible but dismissed it as the applicant had

not adduced any evidence to prove that he had a known address at the

material time.

25. On 3 June 1987 the Court of Cassation held that an appeal on

points of law brought by the applicant was barred by Article 431

para. 3 of the Code of Criminal Procedure.

26. On 18 December 1989 Mr Stamoulakatos applied to the Indictment

Division of the Athens Court of Appeal for a retrial in respect of

judgment no. 42211/1980.

On 14 February 1991, after considering the file forwarded by

the Criminal Court, the Indictment Division noted that the applicant

had properly been summoned as a person whose address was unknown; that

it had proved impossible to reach him at the address at which, by his

own account, he was to be found; that he had not notified the

authorities of any change of address and the file did not disclose the

existence of any relatives who could accept service; and that after

leaving his known address, he travelled from place to place, which made

it impossible to pinpoint his whereabouts. Accordingly, the

proceedings ending in his conviction were not in any way defective and

the trial in absentia was contrary neither to Article 6 (art. 6) of the

Convention nor to the Colozza judgment. As to the new facts relied on

by Mr Stamoulakatos in support of his application for a retrial, the

Indictment Division concluded that, far from undermining the lower

court's judgment, they confirmed its soundness.

On 14 May 1991 Mr Stamoulakatos appealed on points of law

against that judgment, but the appeal was dismissed by the Court of

Cassation on 23 December 1991 for failure to comply with the 30-day

time-limit laid down in Article 473 para. 1 of the Code of Criminal

Procedure.

PROCEEDINGS BEFORE THE COMMISSION

27. Mr Stamoulakatos applied to the Commission on 18 July 1986.

He relied on Articles 3, 4, 5, 6 paras. 1 and 3, 8, 9, 10, 11 and 14

(art. 3, art. 4, art. 5, art. 6-1, art. 6-3, art. 8, art. 9, art. 10,

art. 11, art. 14) of the Convention and Article 1 of Protocol No. 1

(P1-1). In relation to Article 6 paras. 1 and 3 (art. 6-1, art. 6-3)

he complained that he had not been properly summoned to appear in the

proceedings which led to his conviction and that he had therefore been

unable to defend himself against the charges against him.

28. In a partial decision of 6 June 1990 the Commission declared

the application (no. 12806/87) inadmissible except for the complaints

based on Article 6 (art. 6), of which it postponed consideration until

the outcome of certain proceedings pending in the national courts was

known; it declared these complaints admissible on 15 April 1991. On

8 June 1990 it had dismissed an application by Mr Stamoulakatos

inviting it to indicate interim measures to the Greek Government under

Rule 36 of its Rules of Procedure.

In its report of 20 May 1992 (made under Article 31) (art. 31),

the Commission expressed the opinion, by ten votes to four, that there

had been a violation of Article 6 paras. 1 and 3 (art. 6-1, art. 6-3).

The full text of the Commission's opinion and of the separate opinion

contained in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 271 of Series A

of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

AS TO THE LAW

THE GOVERNMENT'S PRELIMINARY OBJECTIONS

29. The Government's primary submission, as before the Commission,

was that Mr Stamoulakatos's complaints did not come within the Court's

jurisdiction ratione temporis because they related to events which had

taken place before 20 November 1985, when Greece's acceptance of the

right of individual petition took effect (Article 25) (art. 25). The

breach of which the applicant complained originated in three

convictions dating from 1979 and 1980 (see paragraphs 10, 13 and 15

above); the fact that he had subsequently lodged appeals could not

affect the period that the Court had to consider in order to rule on

the objection.

The Government also submitted that the applicant had not

exhausted domestic remedies, since at the time he applied to the

Commission the Greek courts had still not ruled on his applications for

retrials (see paragraphs 20, 23 and 26 above).

30. According to the majority of the Commission, the Convention

institutions could not take cognisance of the trials held in absentia

in 1979 and 1980 but the same was not true of the appeals and the

application to set aside; these were lodged after November 1985 and

could give rise to violations of Article 6 (art. 6) in their own right,

as their purpose was to secure a rehearing of Mr Stamoulakatos's

complaints with him present and, above all, to challenge the

circumstances in which the authorities had issued the summonses in

issue. A minority of four members of the Commission, however,

expressed their agreement with the Government in substance.

31. At the Court hearing, Counsel for the applicant noted that

Mr Stamoulakatos had lodged his appeals and application while he was

in custody, after the recognition of the right of individual petition.

The Government's objection was thus contrary not only to the Greek

Constitution and Article 2 of the Criminal Code (retrospective effect

of new criminal legislation more favourable to an accused) but also to

the Convention, ratified by Greece on 28 March 1953.

32. The Court finds that the events which gave rise to the

proceedings against the applicant, together with the three judgments

of the Athens Criminal Court, are covered by the time limitation in

Greece's declaration in respect of Article 25 (art. 25) of the

Convention, which reads:

"... the Government of Greece recognises, for the period

beginning on 20 November 1985 and ending on 19 November 1988,

the competence of the European Commission of Human Rights to

receive petitions addressed to the Secretary General of the

Council of Europe, by any person, non-governmental

organisation or group of individuals claiming, in relation to

any act, decision, facts or events subsequent to this date, to

be the victim of a violation of the rights set forth in the

Convention and in the Additional Protocol (P1) ..."

33. As to his appeals and applications against those judgments, the

applicant complained only that they were ineffective in that they did

not enable him to obtain from a court which had heard him - as he was

entitled to under the Convention - a fresh determination of the merits

of the charges on which he had been tried in absentia. Thus, although

those appeals and applications were lodged after the "critical" date

of 19 November 1985, they were closely bound up with the proceedings

that had led to his conviction; both in his appeals and in his

applications to set aside and for retrials, he complained of the

unlawfulness of the summonses and of the service of the judgments given

in absentia. Divorcing these appeals and applications from the events

which gave rise to them would, in the instant case, be tantamount to

rendering Greece's aforementioned declaration nugatory. It is

reasonable to infer from that declaration that Greece cannot be held

to have violated its obligations for not affording any possibility of

a retrial to those who had been convicted in absentia before

20 November 1985.

In sum, the objection is well-founded.

34. This conclusion makes it unnecessary to examine the

Government's other arguments.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that it cannot deal with the merits of the case.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 26 October 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar