CASE OF TSALKITZIS v. GREECE (No. 2)
Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicant was born in 1944 and lives in Afidnes Attikis. 6. On 2 November 2001 the applicant lodged a criminal complaint against C.T. for breach of duty and extortion concerning acts he had allegedly committed as mayor of Kifissia Municipality. The applicant gave a statement under oath on the same day, repeating the allegations in his criminal complaint. He made a further statement under oath related to his criminal complaint on 21 December 2001. 7. At the time the complaint was lodged C.T. was a member of the Greek Parliament. In accordance with Article 62 of the Constitution, the public prosecutor asked Parliament to lift C.T.’s immunity from prosecution for breach of duty, extortion and bribery. That request was rejected on 20 March 2002. 8. On 5 August 2003 the applicant, relying on the Court’s judgments in Cordova v. Italy (no. 1) (no. 40877/98, ECHR 2003I) and Cordova v. Italy (no. 2) (no. 45649/99, ECHR 2003I (extracts)) resubmitted his criminal complaint, arguing that Parliament’s rejection of the request to lift C.T.’s immunity had violated his right to a fair trial under Article 6 § 1 of the Convention. On 21 October 2003 the criminal complaint was submitted to Parliament. On 2 February 2004 the President of Parliament rejected the request to lift C.T.’s immunity, relying on Article 83 § 8 of Parliament’s Regulation, according to which a request to lift a member’s immunity for a criminal complaint based on the same facts as a previous request was inadmissible. 9. On 18 March 2004 the applicant lodged an application with the European Court of Human Rights, complaining under Article 6 § 1 of the Convention that Parliament’s refusal to lift C.T.’s immunity had violated his right of access to a court. On 16 November 2006 the Court delivered a judgment concluding that the refusal by the President of Parliament to lift C.T.’s immunity for acts that had allegedly been committed prior to his election had violated the applicant’s right of access to a court under Article 6 § 1 of the Convention (Tsalkitzis v. Greece, no. 11801/04, 16 November 2006). To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention. 10. In the meantime, on 4 April 2004 the applicant appeared on a television show on the nationwide ALTER Channel and reiterated the allegations made in his criminal complaint. 11. On 2 July 2004 C.T. lodged a criminal complaint against the applicant for false accusation, perjury and slander. Following a preliminary examination, criminal proceedings were initiated against the applicant. On 15 November 2007 the applicant was convicted in absentia by a threemember panel of the Athens Court of First Instance. He was sentenced to twenty months’ imprisonment and deprivation of his political rights (decision no. 63131/07). C.T. joined the proceedings as a civil party. The applicant lodged an appeal against the decision. 12. Before the three-member panel of the Athens Court of Appeal (“the Court of Appeal”), the applicant submitted that his trial for slander should have been suspended pursuant to Article 366 § 2 of the Criminal Code or, in any event, that it should have been adjourned in respect of all the charges, pursuant to Article 59 § 2 of the Code of Criminal Procedure. At a hearing on 25 May 2009 the Court of Appeal dismissed the applicant’s application to suspend or adjourn the trial and proceeded to examine C.T.’s criminal complaint. In particular, it held the following: “... Following this, the party who had filed the criminal complaint, Vasileios Tsalkitzis, lodged application no. 11801/04 with the European Court of Human Rights in Strasbourg, complaining that Greece had not lifted C.T.’s parliamentary immunity and that criminal proceedings had not been initiated against him. That Court ... held that the refusal of the President of the Greek Parliament had violated Article 6 § 1 of the Convention ... Therefore, the following issues have been identified concerning: a) the relation of international conventions to current constitutional provisions; b) the act in question of the President of the Greek Parliament and whether it breaches constitutional provisions and the above-mentioned international convention; and c) the question of whether or not it is possible to suspend the current criminal case being tried following the criminal complaint dated 2.11.2001 by the defendant Vasileios Tsalkitzis against ... C.T ... The matter of the supremacy of the Constitution does not appear to be contradicted by the above-mentioned European Court of Human Rights judgment, which identifies the issue as the act of the President of Parliament of not putting the request to the Plenary of the Greek Parliament, which resulted, according to the judgment, in impeding the applicant’s and the case’s access to the competent criminal court ... It is noted that the President of Parliament’s act was based on Article 82 of Parliament’s Regulations... According to the foregoing, it is clear that the Greek Parliament has irrevocably dismissed the request of the public prosecutor of the Athens Court of First Instance, thus refusing to lift the immunity of the member of Parliament against whom the criminal complaint was lodged ... on the basis of a legitimate procedure foreseen by the above-mentioned constitutional provisions. Therefore, according to the legislation, there is absolutely no possibility of reconsidering the issue and, eventually, of instituting a criminal prosecution. During the ... Plenary meetings of the Greek Parliament, the issue of the well-foundedness of the accusation was examined as a whole, as were all aspects of the case, securing the work of the deputy and at the same time protecting him from malicious acts. In addition, and this is important, the whole case file which had been created following the preliminary examination was taken into account, as was the opinion of the competent public prosecutor who, following a review of the case, considered that there was no reason to initiate criminal proceedings against C.T. for the offences of which he had been accused ...” 13. Subsequently, the Court of Appeal proceeded to examine witnesses. The trial record shows that the applicant left the building following a short break after the examination of the first three witnesses for the prosecution. His lawyer then contacted him to find out his whereabouts and informed the court that he was not feeling well and had thus left the building. The hearing continued in the presence of his lawyer. In total, five prosecution witnesses were heard, including C.T., who joined the proceedings as a civil party, and one defence witness. It does not transpire from the information provided that the applicant or his representative requested the examination of any other defence witness and that such a request was refused. In view of the applicant’s absence, the Court of Appeal asked his representative to express the applicant’s views on the accusations. The applicant’s representative stated that his client denied all the charges and insisted on the truthfulness of his allegations against C.T. 14. The Court of Appeal upheld the first-instance verdict, including the sentence of twenty months’ imprisonment and the deprivation of political rights (decision no. 4512/2009). 15. On 9 November 2009 the applicant appealed on points of law. He stated, inter alia, that the proceedings should have been suspended or adjourned pursuant to Article 366 § 2 of the Criminal Code and Article 59 § 2 of the Code of Criminal Procedure. On 5 May 2010 the Court of Cassation dismissed the appeal on points of law (decision no. 912/2010). In particular, it held the following: “... It is clear from this new provision (Article 59 § 2 of the Code of Criminal Procedure) ... that in order to adjourn a trial owing to an interlocutory criminal issue (ποινικό προδικαστικό ζήτημα) concerning Articles 224, 229, 362, 363 of the Criminal Code, a criminal prosecution must have been instituted for an act attested to on oath or for which a legal complaint has been submitted or one which a defendant has alleged or disseminated information about. As regards Article 366 § 2 of the Criminal Code ... the suspension of criminal proceedings is obligatory, but also requires a prior criminal prosecution for the act that a defendant has alleged or disseminated information about ... In the present case ... the court dismissed the above requests, providing full and correct reasoning, in particular because the immunity of the person against whom the criminal complaint had been lodged, who is now a civil party and member of Parliament, had not been lifted. Hence, a criminal prosecution had not been instituted, which is a prerequisite for the suspension and adjournment of criminal proceedings against a defendant who requests them. It can be concluded from the above-mentioned considerations that the court correctly interpreted and implemented the above-mentioned provisions, and did not violate them, when it proceeded to examine the allegations of false accusation, perjury and slander against the defendant-appellant on points of law and dismissed the defendant’s request on the grounds that a criminal prosecution had not been instituted against the current civil party, former mayor and now member of Parliament, without suspending and adjourning the proceedings until the end of the previously instituted proceedings against him ...” 16. The decision was finalised on 4 June 2010 (καθαρογραφή) and the applicant was able to receive a copy on 7 June 2010. The applicant was imprisoned from 13 May 2010 to 21 May 2010 as he was not able to pay the fine to which his sentence had been commuted. On 21 May 2010 his sentence was commuted to community service and he was released. Finally, on 31 May 2010 the applicant paid 5,799.94 euros in lieu of serving his sentence.