The civil department of the Supreme Court did not consider a ground for appeal for violation of the presumption of innocence despite the irrevocable acquittal for the same events. Non-exhaustion of domestic remedies
JUDGMENT
Diamantopoulos v. Greece 08.03.2022 (app. no. 68144/13)
SUMMARY
The applicant was born in 1933 and lives in Athens and was the managing director of the company “Diamantopoulos kai Sia OE”.
The Athens Court of Appeals accepted the tort lawsuit against the plaintiff for the offenses of forgery and defamation against two other companies and awarded damages. The applicant appealed to the Supreme Court. While this proceeding was pending, the applicant was referred for trial for the same criminal offenses to the criminal court which acquitted him by an irrevocable decision.
The applicant complained, relying on Article 6 § 2 of the ECHR, that, despite the fact that he had invoked his acquittal before the Supreme Court for the same facts, the Court of Cassation had not examined it and had violate his right to the presumption of innocence. Subsequently, on the basis of that decision, the applicant lodged an objection with the Supreme Court alleging breach of the presumption of innocence by the appellate civil court. The Court of Cassation did not consider this allegation, as it had been relied on by the applicant in his Opinion before the hearing and not in a separate Appeal, as required by Article 569 § 2 of the Code of Civil Procedure.
The ECtHR held that in the present case Article 6 § 2 of the ECHR (violation of the presumption of innocence) applies even though the applicant had not raised an admissible ground of appeal. However, the action was declared inadmissible due to the lack of exhaustion of the domestic remedies.
PROVISION
Article 6 par. 2
PRINCIPAL FACTS
The applicant, Mr Dimitrios Diamantopoulos, was a Greek national, who was born in 1933 and lived in Athens.
The applicant was a managing partner of the company Diamantopoulos K Sia OE, which in 2003 participated in a call for tenders launched by the Greek State for the supply of 3,500 electric torches to the police. The E. company, Diamantopoulos K Sia OE, and a third company were selected in the first round of the bidding process. The applicant objected before the relevant administrative authorities to the selection of the E. company in the first round, contending that their torches did not comply with the technical specifications set out in the call for tenders. His objection was rejected and the E. company was awarded the tender, while Diamantopoulos K Sia OE was ranked third.
In 2006 criminal proceedings for active bribery were initiated against State agents involved with the management of calls for tenders. The applicant testified as a witness before the investigating judge stating, inter alia, that the E. company’s torches did not comply with the technical specifications as regards their capacity to transmit Morse code signals, and that the company’s declaration, that their country of origin was Germany, was false.
Mr A.G., the chairman of the board of directors and Mr V.G., the executive director of the E. company, were subsequently accused of active bribery. They were finally acquitted in 2009.
On 10 July 2006 the E. company, Mr A.G. and Mr V.G. brought a civil action against the applicant for perjury and slanderous defamation, claiming compensation for non-pecuniary damage. They also lodged, on an unknown date, a criminal complaint against the applicant for perjury and slanderous defamation.
Following the dismissal of their civil action by the Athens Court of First Instance in judgment no. 4183/2009, they lodged an appeal. The Athens Court of Appeal issued judgment no. 1496/2011, by which it reversed the first‑instance decision and ordered the applicant to pay each appellant 7,000 euros.
On 30 May 2011 the applicant lodged an appeal on points of law with the Court of Cassation (civil law chamber), against judgment no. 1496/2011, submitting (i) that the Court of Appeal judgment lacked sufficient reasoning and that certain parts of its reasoning were contradictory, and (ii) that the Court of Appeal had not considered important evidence.
As regards the criminal proceedings, on 25 May 2012 the Athens Criminal Court of First Instance acquitted the applicant of perjury and slanderous defamation. No appeal was lodged against that judgment which thus became final (court certificate dated 7 June 2012).
On 15 November 2012 the applicant, in written observations, relied for the first time on the presumption of innocence and adduced the final criminal acquittal judgment. He argued that the judgment of the civil appellate court violated his right to be presumed innocent, following his acquittal by the criminal courts on the same facts.
The hearing took place on 28 January 2013 and the Court of Cassation, by judgment no. 1577/2013, dismissed the applicant’s appeal on points of law on 23 July 2013. In particular, it held that the reasons given by the Court of Appeal were adequate and consistent and that the Court of Appeal took into account and assessed all the evidence which had been adduced before it. The Court of Cassation did not refer to the applicant’s argument concerning the presumption of innocence.
THE DECISION OF THE COURT…
Article 6 § 2
(a) Applicability – It was the second aspect of Article 6 § 2 that came into play, the role of which was to prevent the principle of the presumption of innocence from being undermined after the relevant criminal proceedings had been concluded either by way of discontinuation or acquittal. The question to be examined therefore was whether the civil proceedings which had ended with the Court of Cassation’s judgment had been linked to any prior criminal proceedings. The Court replied in the affirmative. In particular, the final acquittal judgment in the criminal case against the applicant had been issued after the appellate court’s judgment, and the Court of Cassation, as the highest domestic civil court, had been the only judicial body which could have possibly examined any argument relating to the consequences of the acquittal judgment as regards the compensation case. Indeed, under domestic law and in the light of the domestic case-law, it would not have been incompatible with its power of review to examine the consequences for the civil proceedings of a criminal acquittal judgment. The conduct of the applicant examined in the civil and the criminal proceedings had been identical. The Government had stated explicitly in their observations that the Court of Cassation would have assessed the observance of the presumption of innocence if this plea had been formulated in an admissible way as a separate supplementary ground to his appeal on points of law. Consequently, the fact that it had not been examined as it had not been submitted in an admissible way did not preclude the applicability of Article 6 § 2.
Conclusion: Article 6 § 2 applicable.
(b) Admissibility (exhaustion of domestic remedies) – Article 569 § 2 of the Code of Civil Procedure laid down specific procedural steps that had to be followed for submitting supplementary grounds to an appeal on points of law. Τhe rules governing those formal steps to be taken were aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty and the equality of arms. The applicant had been represented by a lawyer during the entire proceedings and should have expected that the relevant procedural rules had to be respected. Moreover, he did not provide any explanation as to why he had failed to submit the grounds of appeal in the form of supplementary grounds even though the thirty-day time-limit for their submission had not expired when he had invoked the plea in his observations. Nor was there anything in the material before the Court indicating, as argued by the applicant, that the Court of Cassation could or should have examined of its own motion the presumption of innocence notwithstanding the means by which it was put forward. The domestic legislation as it stood at the relevant time did not impose an obligation on the part of the Court of Cassation to examine that ground of appeal without the relevant preconditions being met. The applicant had not produced any case-law demonstrating that the Court of Cassation had ever done so. On the contrary, that court had already held that the presumption of innocence was activated only if the applicant relied on and adduced a criminal acquittal judgment at the civil court. In this respect the present case thus differed from Kapetanios and others v. Greece in which the applicants had relied on the acquittal judgments in accordance with the procedural requirements at the highest court.
Conclusion: inadmissible (non-exhaustion of domestic remedies).
