FIRST SECTION
 
 
 
 
 
 
CASE OF DIMITRAS v. GREECE
 
(Application no. 11946/11)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
19 April 2018
 
FINAL
 
19/07/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimitras v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Kristina Pardalos, President,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Krzysztof Wojtyczek,
 Armen Harutyunyan,
 Tim Eicke,
 Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 27 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 11946/11) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Panayotis Dimitras (“the applicant”), on 8 February 2011. 2. The applicant was represented by Greek Helsinki Monitor, a non-governmental organisation based in Glyka Nera, Athens. The Greek Government (“the Government”) were represented by their Agent’s delegate, Ms A. Magrippi, legal representative A at the State Legal Council. 3. The applicant complained under Article 6 that his right of access to a court and his right to have his case heard within a reasonable time had been violated. He also complained that he had not had at his disposal an effective remedy for his complaint concerning the reasonable-time requirement. 4. On 5 July 2016 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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 time‑barred 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 three‑month 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 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 time‑barred 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. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Greek Constitution
19. The relevant Articles of the Constitution read as follows:
Article 53
“1. Deputies are elected for four consecutive years starting on the day of the general election ...”
Article 61
“1. Under no circumstances may a deputy be prosecuted or be examined on the basis of an opinion expressed or a vote taken in the exercise of her or his parliamentary functions. ... 2. A member may be prosecuted only for slander, according to the law, after Parliament has granted leave ...”
Article 62
“1. A deputy cannot be prosecuted, arrested, detained or restrained in any other way during a parliamentary session without the permission of Parliament ...”
B. Parliamentary Regulations
20. The relevant Article of the Parliamentary Regulations reads as follows:
Article 83
“1. Requests made by the public prosecutor’s service for granting leave to initiate criminal prosecution against a deputy, in accordance with Articles 61 § 2 and 62 § 1 of the Constitution, are submitted to Parliament by the Minister of Justice, after having been examined by the prosecutor at the Court of Cassation, and are recorded in a special register according to their order of introduction. 2. Following the submission of the above-mentioned requests, the President of Parliament refers them to the Parliamentary Ethics Committee in accordance with Article 43A § 1 (g). 3. The Committee, after hearing the member in question, if the latter wishes, ... shall examine on the basis of the attachments to the application, whether the act for which lifting of immunity is requested is related to the political activities of the deputy, if there are political motives behind the criminal prosecution or if its purpose is to undermine the authority of Parliament or that of the deputy or to substantially interfere with the exercise of the deputy’s duties or to influence the functioning of Parliament or the parliamentary group of which the deputy is a member ...”
C. Law no. 1092/1938
21. The relevant Articles of Law no. 1092/1938 concerning slander committed through press read as follows:
Article 3
“1. The abuse of freedom of the press with a view to committing a felony or a misdemeanour shall be considered an aggravating circumstance. In these cases, where the law provides disjunctively for a sentence of deprivation of liberty or a fine, an offence that has been committed through the press shall be punished with both sentences.”
Article 48 (47)
“Offences committed through the press shall be time-barred eighteen months after they were committed. This deadline shall be suspended for as long as, in accordance with a legal provision, criminal prosecution cannot be initiated or continue for the duration of the main proceedings until the sentencing judgment becomes irrevocable. In any event, the period of suspension cannot be more than two years.”
D. Criminal Code
22. The relevant Articles of the Criminal Code read as follows:
Article 362
Defamation
“Anyone who by any means disseminates information to a third party concerning another which may harm the latter’s honour or reputation shall be punished by up to two years’ imprisonment or a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.”
Article 363
Slander
“1. If, in a case under Article 362, the information is false and the offender was aware of its falsity, he or she shall be punished by at least three months’ imprisonment, and, in addition, a pecuniary penalty may be imposed and deprivation of civil rights under Article 63 may be ordered.”
E. Code of Criminal procedure
23. The relevant Article of the Code of Criminal Procedure reads as follows:
Article 47
Rejection of the criminal complaint
“1. The public prosecutor shall examine the criminal complaint and if he or she considers that it has no legal basis, or that it is not subject to judicial assessment, or that it is unfounded on its merits, he or she shall reject it by means of a duly reasoned order which shall be served on the complainant. 2. If a preliminary investigation or preliminary measures in accordance with Article 243 § 2 or a sworn administrative investigation was conducted and the public prosecutor considers that there is not sufficient evidence to initiate criminal proceedings, she or he shall act as described in the preceding paragraph.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ACCESS TO A COURT
24. The applicant complained that the Greek parliament’s refusal to waive E.T.’s parliamentary immunity and the allegedly committed offence’s becoming time-barred had breached his right of access to a court, as provided in Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
25. The Government claimed that the application should be rejected as manifestly ill-founded, or otherwise owing to lack of victim status or owing to lack of an arguable claim for the purposes of Articles 6 and 13 of the Convention. In support of their objections, the Government submitted that the applicant did not have a legitimate expectation for a successful outcome of his criminal complaint against E.T. In addition, they claimed that no omissions or delays could be attributed to the domestic authorities and therefore, the application should be rejected as a whole. 26. The Court considers that the Government’s objections refer to the merits of the application and should therefore be examined under that head. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The applicant’s arguments
27. The applicant argued that the domestic authorities had not acted with expedition in the circumstances of the present case, and that they had knowingly let the statute of limitations expire. It had been the acts and omissions of the relevant authorities which had led to the offence’s becoming time-barred. In particular, the authorities should not have suspended the proceedings in order to obtain leave from Parliament to continue the prosecution of E.T., as the offence had been committed prior to E.T.’s election as a member of parliament. In addition, the authorities had failed to finalise judgment no. 1656/2010 by which it had suspended the criminal proceedings against E.T. until the Greek Parliament had granted leave on time, as it had been published on 17 February 2010 and had been finalised on 10 August 2010, thus making it impossible for Parliament to consider the request before the offence had become time-barred. 28. As regards the exact date the offence became time-barred, the applicant initially submitted that the offence became time-barred on 4 September 2010. In his subsequent observations, he argued that the final judgment no. 8658/2012 issued by the Court of Appeal, which had held that the offence had been time-barred, had included several mistakes in its reasoning, which proved in his view that there had been no legal certainty as to how the statute of limitations had had to be applied in this case. In particular, he drew the Court’s attention to another possible date on which the offence might have become time-barred, arguing that E.T.’s parliamentary immunity had acted as a temporary procedural barrier, and therefore the statute of limitations had been suspended for the whole period E.T. had been a deputy. According to that version, the offence of which E.T. had been accused of had become time-bared on 4 April 2013. 29. Lastly, the applicant did not deny that he had the right to lodge an action for non-pecuniary damage before the civil courts in order to obtain compensation. However, citing the Court’s case-law with regard to the exhaustion of domestic remedies (Tsalkitzis v. Greece, no. 11801/04, §§ 32‑34, 16 November 2006), the applicant argued that he had made normal use of the remedies available in domestic law and he was not obliged to lodge an action for damages before the civil courts in addition to his civil-party claim to the criminal proceedings. In any event, he had been informed that the offence of which E.T. had been accused had become time-barred only on 26 October 2012 in the hearing before the Court of Appeal and he had been able to read the relevant judgment only on 4 April 2013. By that time, it had no longer been possible to lodge an action for non-pecuniary damage before the civil courts, as the relevant claim had become time-barred on 4 March 2012. 2. The Government’s arguments
30. As regards the offence’s becoming time-barred, the Government argued that that was a legitimate restriction of one’s right of access to a court ensuring legal certainty and finality, protecting potential defendants from stale claims which might be difficult to counter and preventing the injustice which might arise if courts were required to decide upon events which had taken place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time. As regards the short statutory time-limit of offences committed through the press, the Government argued that it had been instituted so as to ensure the unimpeded functioning and freedom of the press. The competent public prosecutor’s offices made sure that the offences would not be time-barred by marking the relevant case files as extremely urgent. 31. In respect of the specificities of the present case, the Government submitted that the offence of which E.T. was accused had become time-barred on 4 September 2010 pursuant to Article 48 (47) of Law no. 1092/1938, which provided that offences committed through the press became time-barred eighteen months after they had been committed, or, if the main proceedings had been initiated against the perpetrator, forty-two months after they had been committed. In any event, in the present case there had been no unjustified delays which could be held against the domestic authorities and thus be the basis for a finding of a violation owing to the allegedly committed offences becoming time-barred. On the contrary, the domestic authorities had acted with expedition and the applicant’s complaint had been scheduled to be heard thirteen months after its lodging. Even after E.T.’s unexpected objection concerning lack of competence of the trial court, the case had been brought before the competent court promptly. Therefore, domestic authorities had done everything in their power to hear the case in good time and consequently, Article 6 § 1 had not been violated. 32. The Government further submitted that the applicant had had at his disposal another equally effective remedy, namely that of lodging an action with the civil courts in order to request compensation for any pecuniary and non-pecuniary damage he might have suffered owing to the actions of E.T. The applicant’s claim before the civil courts, which he did not pursue, became time-barred five years after the events at issue took place, that is to say on 4 March 2012. 3. The Court’s assessment
33.

Outcome for Article 6: no_violation