CASE OF DIMITRAS v. GREECE
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Reasonable time)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicant was born in 1953 and lives in Glyka Nera. He is the executive director of the non-governmental organisation “Greek Helsinki Monitor”. 6. On 26 January 2007, 11 February 2007 and 7 March 2007, Greek Helsinki Monitor published on its website some press releases, in which, inter alia, it welcomed the concluding observations of the UN Committee on the Elimination of Discrimination Against Women (CEDAW) for Greece and criticised the domestic authorities’ responses to them. 7. On 4 March 2007, E.T., in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation, gave an interview which was published in a magazine included with a Sunday newspaper. In that interview the following statement was put to her: “Greek Helsinki Monitor accuses you of withholding information and lying before the UN about the position of Roma women, minority women, and whether polygamy is practiced in Greece.” E.T. gave the following answer: “What they claim is extremely unfair. They lay the country open to criticism (εκθέτουν τη χώρα) – because what they claim is false. No other NGO shares the Monitor’s position. We, in our report, may not have fully documented everything, but no one can claim that Greece is an entirely patriarchic country and that nothing has been done all these years.” 8. On 1 April 2007 the same newspaper published a reply sent by the applicant, as executive director of Greek Helsinki Monitor, to E.T.’s comments, in which he asked E.T. to document her statements. On 1 June 2007 the applicant lodged a criminal complaint with the public prosecutor at the Athens First-Instance Court. He submitted that E.T. in the above-mentioned interview had made false statements about Greek Helsinki Monitor which amounted to slander committed through the press. The applicant expressed his wish to join the proceedings as civil party, initially for the amount of 100,000 euros (EUR), which he later reduced to EUR 44. 9. Following an urgent preliminary inquiry, to which E.T. was requested to provide a statement as a suspect in the case, on 10 January 2008 the public prosecutor at the Athens Court of First Instance dismissed the applicant’s criminal complaint and filed (αρχειοθέτησε) it away, in accordance with Article 47 of the Code of Criminal Procedure. In particular, the prosecutor considered that the above-mentioned statements made within the context of the interview, did not constitute facts but value judgments and in any event, they did not overcome the necessary threshold of similar exchanges between various bodies. The prosecutor also added that Greek Helsinki Monitor had used the same expression, that is to say it had described statements included in reports prepared by the Greek Government as “false”, in various press releases, in a much more heated tone. 10. On 6 February 2008, following an appeal by the applicant against the order by which his criminal complaint was filed away, the public prosecutor at the Athens Court of Appeal ordered E.T.’s criminal prosecution for slander made through the press, considering that the above-mentioned statements were susceptible of harming the applicant’s honour and reputation, not only individually, but also as representative of Greek Helsinki Monitor. 11. On the basis of the above, E.T. was indicted and 25 June 2008 was set as the hearing date before the three-member Athens Magistrates’ Court. On 26 May 2008 E.T. appealed against her indictment. On 17 June 2008 her appeal was dismissed by the Athens Council of Magistrate Judges. 12. The new hearing date before the three-member Athens Magistrates’ Court was set for 18 September 2008. On that date, at the beginning of the hearing of the case, E.T. raised for the first time an objection concerning lack of competence of the trial court, arguing that her status as a lawyer meant she could not have her case heard by a three-member magistrates’ court. By judgment no. 53833/08 published on the same date, the said court declared itself not to have competence and referred the case to the three-member Athens Court of Appeal for misdemeanours (hereafter the “Court of Appeal”). On 28 November 2008 the operative part of the judgment was corrected and on 6 April 2009, the case file was transmitted to the prosecution service at the Athens Court of Appeal, marked as extremely urgent. 13. The new hearing date was set for 13 May 2009. On that date, the applicant’s lawyer sent a letter to the court, requesting that the hearing be postponed as he could not attend it owing to other professional obligations. Additionally, K.D., a journalist who had interviewed E.T., had not been present and the applicant submitted that he considered her testimony essential. As a result, the Court of Appeal by its judgment no. 4044/09 postponed the hearing until 5 October 2009, citing a material witness’s absence as the reason. On 5 October 2009 the case was not heard because the courts had not been sitting owing to the parliamentary elections that had taken place the previous day. 14. The case was again set for hearing on 17 February 2010. On that date, E.T.’s lawyer submitted certificate no. 2063/2010 of the Greek Parliament, according to which E.T. had been elected as a deputy in the parliamentary elections of 4 October 2009. On that basis, he applied to the court to have the proceedings suspended in accordance with Article 62 of the Constitution in order for Parliament to give permission. The applicant objected to the suspension and filed written submissions in which he argued, inter alia, that it was not necessary for Parliament to grant leave for the criminal proceedings against E.T. as the acts for which she was accused had not taken place in the course of her parliamentary activities. He cited in that connection the Court’s cases Tsalkitzis v. Greece (no. 11801/04, 16 November 2006) and Syngelidis v. Greece (no. 24895/07, 11 February 2010). He further stressed that the impugned acts would become timebarred on 4 September 2010 and requested that the court proceed with examination on the merits of the case. 15. The Court of Appeal, after having held deliberations in camera, published judgment no. 1656/2010 by which it suspended the criminal proceedings against E.T. until the Greek Parliament had granted leave and, if such leave were not granted or if no action were taken in the threemonth period from the submission of the prosecutor’s request to the Greek Parliament, until her status as a parliamentarian ended. In respect of Article 62 of the Constitution and the applicant’s objection, the domestic court held the following: “... In addition, since Parliament has not granted leave, the prosecution is declared inadmissible if it concerns an offence committed when the defendant was a member of parliament. If, however, criminal proceedings were initiated prior to that, when the defendant was not a member of parliament, then they are suspended until the said leave is granted or until the defendant’s status as a parliamentarian ends ... It should be noted that in the present case no matter arises concerning the interpretation of Articles 61, 62 and 20 § 1 of the Constitution ... and of Article 6 § 1 of the Convention, so as for the court to rule that Parliament’s leave is not required to conduct this trial because the above-mentioned act did not take place, according to the civil claimant’s allegations, in the context of her parliamentary duties. That is because the prosecutable offence (slander for an interview that the defendant gave to a newspaper in her capacity as General Secretary for Gender Equality of the Ministry of Interior, Public Administration and Decentralisation) clearly does not concern a private dispute; it should be examined if it relates and is linked to the political activity of the defendant-deputy and in general to the exercise of her parliamentary duties. However, examination of this matter and, eventually, any conclusion thereof can only be carried out by the competent authority, the Greek Parliament ...” 16. The decision was published on the date of the hearing, that is to say 17 February 2010, and was finalised (i.e. entered in a special book at the registry of the criminal court) on 10 August 2010. On 13 August 2010 the applicant lodged an application with the public prosecutor of the Court of Cassation requesting an examination of points of law of the said judgment. His request was rejected on the grounds that the Court of Appeal had rightly suspended the proceedings so that Parliament could grant leave, in accordance with Article 62 of the Constitution. On 19 August 2010 the case file was transferred to the public prosecutor of the Court of Cassation, who the next day sent it to the Minister of Justice. On 23 August 2010 the Minister of Justice transferred the case file to the Greek Parliament. 17. On 24 October 2010 the Special Permanent Committee of Parliamentary Ethics of the Greek Parliament, having taken a deposition from E.T., ruled unanimously that the requirements of Article 83 § 3 had been met and thus E.T.’s immunity should not be lifted. On 12 January 2011 the Plenary of the Greek Parliament dismissed the request for leave to continue the criminal proceedings. On 1 March 2011 the public prosecutor at the Court of Cassation notified the public prosecutor at the Court of Appeal of the outcome of Parliament’s vote on granting leave. 18. On 16 July 2012 the head of the General Directorate of Human Resources of the Greek Parliament notified the Ministry of Justice that E.T. had ceased to be member of parliament since 11 April 2012. On 26 October 2012 the Court of Appeal published judgment no. 8658/2012 in which it considered that the offence of which E.T. was accused had become timebarred as more than forty-two months had passed since its alleged commission. It consequently ended the criminal prosecution. The judgment was finalised on 21 March 2013.