CASE OF STAMOULAKATOS v. GREECE (No. 1)
Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies)
C. Russo;N. Valticos;B. Walsh
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. 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). 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. 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). 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. 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. 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. 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.