STOKAS v. GREECE
Inadmissible
Françoise Tulkens
The applicant, Konstantinos Stokas, is a Greek national, born in 1951 and lives in Grevena. He is represented before the Court by Mr N.Frangakis, a lawyer practising in Athens. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 October 1993 a car driven by the applicant’s brother, which also carried the latter’s wife and their two children, deviated from its course, entered abruptly into the opposite circulation lane and crashed into a truck coming from the opposite direction. The collision had as a result the death of all the passengers of the car. The site of the accident was inspected and it was found that the road surface at the collision point was slippery, due to the rain which had fallen. It was also established that the car’s speed was higher than the maximum permitted speed in that sector. An expert’s report concluded that because the load of the truck, its power and mass, it was impossible for it to maoeuvre and had caused the truck to drag the car backwards with only a small speed. A preliminary investigation (proanakrisi) was initiated ex officio immediately, pursuant to Article 243 of the Code of Criminal Procedure. On 19 December 1994 the case file was sent to the First Instance Criminal Court of Kozani. On 29 July 1994 the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons. He also notified the public prosecutor at the First Instance Criminal Court of Kozani that he wished to take part in the criminal proceedings as a civil party. He asked for 400 drachmas by way of compensation for non-pecuniary damage, expressly reserving his right to pursue the remainder of his claim before the civil courts. On 16 October1995 the applicant brought an action before the Single-Member First Instance Civil Court (Monomeles Protodikio) of Kozani against the driver of the truck and the insurance companies seeking compensation for non-pecuniary damage of an amount of 26 000 000 drachmas. The examination of the case was adjourned because the criminal proceedings were pending. The preliminary investigation lasted until November of 1995. A great number of witnesses was heard. On 18 December 1995 the file was sent to the public prosecutor at the Kozani criminal court. On the 18 December 1995 the applicant submitted an application to the public prosecutor at the Kozani criminal court, pursuant to Article 246 § 3 of the Code of Criminal Procedure, requesting that the preliminary investigation should be complemented by a full investigation (kyria anakrisi). Such an order was given on 21 February 1996. On 12 February 1997 the public prosecutor pressed charges for homicide by negligence against the driver of the truck and the representatives of the company that owned the vehicle. On 8 June 1997 the Indictments Division of the First Instance Criminal Court (Symvoulio Plimmeliodikon) of Kozani decided not to bring charges against the accused. It held that the steering system and brakes of the truck were functioning satisfactorily and that the truck driver could not be accused of reckless driving but had been unable to avoid the collision because of the negligent conduct of the applicant’s brother. The latter was imprudent, was driving at an excessive speed and violated the double separation line of the road. On 14 July 1997 the applicant filed an appeal against the above decision of the indictments division. He complained that the decision was not sufficiently reasoned and that the Indictments Division had applied the relevant legislation erroneously. On 14 January 1998 the applicant’s appeal was dismissed by the Indictments Division of the Court of Appeal (Symvoulio Efeton) of Western Macedonia (decision 21/1998). The Indictments Division confirmed the first instance decision and reiterated that the collision was due to the exclusive responsibility of the applicant’s brother. On 5 March 1998 the applicant’s civil action came for hearing before the Kozani civil court. The court heard a number of witnesses and examined the other evidence in the case. On 4 May 1998 the applicant appealed on points of law against the decision of 14 January 1998 of the Indictments Division of the Court of Appeal. On 8 May 1998 the civil court dismissed the applicants’ action on the merits (judgment 211/1998). It held that the applicant’s brother was entirely responsible for the accident and that the truck’s tyres and the fact that it was overloaded had no causal link to the accident and the fatal injury of the applicant’s brother and his family. On 6 August 1998 the Court of Cassation set aside the decision of the Indictments Division of the Court of Appeal on the ground that it did not contain sufficient reasons, in the sense that the court of appeal had only made a general reference to the evidence before it and it could not, therefore, be deduced whether it had taken it all into consideration. In order to be re-examined, the case was referred back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition. On 8 September 1998 the Indictments Division of the Court of Appeal of Western Macedonia ruled that there was no case for the accused to answer (decision 84/1998). On 14 September 1998 the applicant lodged an appeal with the Court of Cassation against the second decision of the Indictments Division of the Court of Appeal. He claimed that the decision did not set out with sufficient clarity the relevant circumstances and evidence on which it was based. On 14 October 1998 the Court of Cassation upheld the appeal on the ground that the impugned decision was lacking sufficient reasoning and referred the case back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition. In particular, the Court of Cassation found that the appealed decision’s reasoning did not elaborate fully and clearly on the evidence bearing on the co-responsibility of the accused for the accident. On 19 October 1998 the Indictments Division of the Court of Appeal decided for the third time not to press charges against the accused. It held that there were not sufficient indications pointing to the guilt of the defendant. For the third time, the Indictments Division held that the driver of the car had been driving at an excessive speed under the circumstances, as it transpired from the deposition of the driver of the car moving behind the applicant’s brother. No liability could be established for the defendant, having regard to the conclusions reached after the inspection of the site of the accident, the diagram which was drawn up. It transpired that the defendant was driving at 45 km/h, that is under the speed limit, was overloaded and circulating at the far right of his own traffic lane. The fact that the applicant’s brother’s car was dragged by the truck down the road was attributed to the slippery road and the defendant’s confusion at the time of the collision. On 22 October 1998 the applicant appealed on points of law to the Court of Cassation. On 26 January 1999 the Court of Cassation dismissed the appeal on the ground that the action had become statute-barred. In particular, the Court of Cassation held that the five-year period of limitation provided by the law for involuntary homicide had lapsed and thus the punishable character of the act allegedly committed by the defendant had disappeared. Under Article 111 § 2 of the Criminal Code misdemeanours (plimmelimata), such as the offence for which the driver and the representatives of the company would have been tried, are subject to a five-year prescription period, starting from the moment the offence takes place. According to Article 113 of the Criminal Code, the investigation and interlocutory proceedings (e.g. the proceedings before the indictments chambers) does not interrupt the running of the prescription period.