CASE OF PHILIS v. GREECE (No. 2)
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
N. Valticos
7. Mr Philis, a Greek citizen born in 1937, lives in Athens, where, at the material time, he was working as an engineer. In 1987 Mr Philis had already filed a different application that led the Court to find that the applicant’s right of access to a court had been violated (judgment of 27 August 1991, Series A no. 209). 8. On 14 April 1986, during proceedings he had brought against officials of the Autonomous Organisation for Labour Housing (Aftonomos Organismos Ergatikis Katikias - "the AOEK"), the applicant sent the Indictment Division of the Athens Court of Appeal (Symvoulio Efeton) a pleading in which he argued that the procedure followed by the relevant authorities in connection with the various legal proceedings he had brought left no doubt that there was bias in favour of the AOEK’s officials, and that the delays in the proceedings were plainly intended to ensure that the limitation period for the offences would run out. 9. On 25 April 1986 the public prosecutor at the Athens Court of Appeal (Isageleas Efeton) forwarded the pleading to the public prosecutor at the Athens Criminal Court (Isageleas Plimmeliodikon) and recommended that the applicant should be charged with insulting the judiciary. On 30 April 1986 the prosecutor at the Criminal Court ordered a preliminary investigation (see paragraph 23 below). 10. On 9 October 1986 Mr Philis appeared before the investigating judge. He denied the charges and informed the judge that he intended to file a pleading by 15 October 1986. In the pleading, which he filed on 14 October 1986, he applied for several witnesses to be heard. Four witnesses were examined between 10 November and 20 November 1986. On 20 January 1987 the investigating judge sent the file to the prosecutor. 11. On 20 March 1987 the prosecutor asked the investigating judge to complete the file by ordering the applicant to send him a number of court decisions mentioned in the pleading of 14 October 1986. On 11 June 1987 Mr Philis submitted those decisions, together with another pleading. On 12 June 1987 the investigating judge forwarded these to the prosecutor. 12. On 5 October 1987 the prosecutor charged the applicant with insulting the judiciary and set the case down for trial on 12 October 1988 by the Athens Criminal Court sitting with three judges (Trimeles Plimmeliodikio). On 13 September 1988 the applicant was summoned to appear before that court on 12 October 1988. On 22 September 1988 he made an application under Article 322 of the Code of Criminal Procedure to be examined by an indictment division, but this was refused by the prosecutor at the Court of Appeal on 30 September 1988. 13. On 12 October 1988 the Athens Criminal Court convicted Mr Philis and sentenced him to five months’ imprisonment, a penalty which was converted into a fine of 400 drachmas per day. The applicant immediately appealed, thereby causing execution of his sentence to be stayed (see paragraph 24 below). 14. On 5 November 1990 the Athens Court of Appeal adjourned the case, but on 25 October 1991 it allowed the appeal and quashed Mr Philis’s conviction. 15. The Court of Appeal’s judgment and the record of the hearing were finalised (katharographi) on 19 November 1991 and served on the applicant on 28 November 1991. On 9 December 1991 the applicant applied to the Court of Appeal to have them rectified and supplemented. On 15 April 1992 the court ruled that the application was inadmissible on the ground that it had not been made within twenty days of delivery of the judgment on 25 October 1991. 16. Under Articles 473 and 506 of the Code of Criminal Procedure, the prosecutor had a right of appeal on points of law against the Court of Appeal’s judgment, to be exercised within ten days of the finalisation of that judgment. He did not, however, avail himself of that right, with the result that the Court of Appeal’s judgment became final on 29 November 1991. 17. On 2 August 1982 the AOEK complained to the Greek Chamber of Technology (Techniko Epimelitirio Ellados - "the TEE") of the various proceedings brought by Mr Philis against the AOEK and some of its engineers. The chairman of the TEE’s disciplinary board then initiated disciplinary proceedings against the applicant for improper conduct. On 14 November 1983 the charges were drawn and a rapporteur appointed. On 9 March 1984 the disciplinary board decided to adjourn the case as the chairman of the AOEK, who had been called to give evidence, had not appeared. On 20 November 1984 the disciplinary board suspended the applicant from practising his profession for ten months. 18. Mr Philis was notified of that decision on 7 June 1985. On 21 June 1985 he appealed to the TEE’s Supreme Disciplinary Council within the prescribed two weeks, thereby causing his suspension to be stayed (see paragraph 28 below). On 14 April and 18 May 1992 he wrote to the TEE requesting it to inform him of the outcome of his appeal. On 22 May 1992 the TEE replied that the case was being considered by one of the members of the Supreme Disciplinary Council acting as rapporteur and that a hearing would be held when he had submitted his report. 19. By a letter of 17 February 1993 the applicant was invited to attend the Supreme Disciplinary Council hearing on 10 March 1993. On 5 March 1993 he challenged all the Council’s members and asked for the guarantees in Article 6 of the Convention (art. 6) to be respected at the hearing. 20. On 10 March 1993 the Supreme Disciplinary Council rejected that request. It allowed the appeal, however, and completely exonerated the applicant. 21. On 2 April 1993 Mr Philis sought rectification of the decision of 10 March 1993. On 26 April 1993 the Supreme Disciplinary Council answered the points raised by the applicant in his request but did not rectify its decision. 22. Under Article 36 of the Code of Criminal Procedure, criminal proceedings may be initiated of the authorities’ own motion following a report, a complaint or any other information indicating that an offence may have been committed. 23. The public prosecutor is then required to order a preliminary investigation or to commit the accused for trial directly, where this is possible. If the complaint or report in question is without foundation, the public prosecutor takes no further action (Article 43). 24. Where an appeal is lodged in accordance with the law and within the prescribed time-limit, execution of the judgment against which it has been brought is stayed (Articles 471 and 497). 25. Under Article 370, criminal proceedings end when the accused has been found guilty or innocent. 26. Disciplinary proceedings in the Greek Chamber of Technology are governed by the presidential decree of 27 November and 14 December 1926, as amended by Article 1 of Legislative Decree no. 783/1970, and by Law no. 1486/1984. 27. Article 28 of the above-mentioned presidential decree provides that, at first instance, disciplinary offences by members of the TEE come under the jurisdiction of disciplinary boards. 28. Under Article 32 para. 1, an appeal lies against disciplinary board decisions. Appeals must be lodged with the Supreme Disciplinary Council within two weeks of notification of the decision in question. The appeal has a suspensive effect. 29. Article 34 provides that disciplinary proceedings are separate from other proceedings and are not stayed on account of criminal proceedings. However, in exceptional circumstances, a disciplinary board may stay disciplinary proceedings until criminal proceedings have ended, while remaining free to give a decision that differs from the criminal court’s judgment. Where there is a conviction in criminal proceedings, disciplinary proceedings that have led to an acquittal or a reprimand will be reopened.