TSALIKIDIS AND OTHERS v. GREECE JUDGMENT
33
B. Merits
116. The applicants claimed that they had had no effective remedy
concerning their complaints under Article 2 about the ineffectiveness of the
investigation conducted by the domestic authorities. In this respect, they
argued that filing a criminal complaint under Article 46 of the Code of
Criminal Procedure and lodging an appeal against its possible rejection with
the public prosecutor at the Court of Appeal had not constituted effective
remedies which could have provided redress in respect of a violation under
the procedural limb of Article 2. In fact, they had been part of the procedure
during which the violation of their rights had taken place. Additionally,
relying on the Court’s judgment in Yotova (cited above) and on various
other cases against Greece, they claimed that an action for damages under
Article 105 of the Introductory Law to the Civil Code would not have been
an effective remedy. On the one hand, they had already expressed their wish
to join the proceedings as civil parties, producing an effect similar to that of
submitting an application for damages and, on the other hand, such an
action would have had very little prospect of success.
117. The Government submitted that the applicants had had at their
disposal two effective remedies, which could have been used either
cumulatively or separately. Firstly, the applicants should have filed a
criminal complaint pursuant to Article 46 of the Code of Criminal
procedure. This would have given them the opportunity to put forward their
arguments and, if their complaint had been rejected, they could have
challenged the public prosecutor’s conclusions by lodging an appeal with
the public prosecutor at the Court of Appeal. In the Government’s view, the
effectiveness of this remedy had been proven by the fact that the first
applicant had used it during the initial investigation, irrespective of the
unfavourable outcome for him. Secondly, the Government argued that the
applicants should have submitted an application for damages under
Article 105 of the Introductory Law to the Civil Code. In this respect, they
cited decision 1501/2014 of the Supreme Administrative Court by which it
was held that an application for damages could be submitted even when the
damage in question had been caused by a manifest error of judgment on the
part of the judicial organs.
118. The Court observes that in the present case the essence of the
applicants’ complaint concerns the absence of a remedy in relation to their
complaint about the non-effectiveness of the supplementary investigation
conducted into their relative’s death. In view of the parties’ submissions of
the applicant in the present case and of the grounds on which it has found a
violation of Article 2 in relation to its procedural aspect, the Court considers
that no separate issue arises under Article 13 of the Convention (see
Nachova and Others v. Bulgaria [GC], cited above, §§ 120-123, and
Makaratzis v. Greece [GC], no. 50385/99, §§ 84-86, ECHR 2004-XI).