FIRST SECTION
CASE OF CONSTANTINIDES v. GREECE
(Application no. 76438/12)
JUDGMENT
(Extracts)
STRASBOURG
6 October 2016
FINAL
06/03/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Constantinides v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Ledi Bianku,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Robert Spano,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 30 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 76438/12) 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 British national, Mr Yiangos (John) Constantinides (“the applicant”), on 20 November 2012.
2. The applicant was represented by Mr L. Loucaides, a lawyer practising in Nicosia (Cyprus). The Greek Government (“the Government”) were represented by their Agent’s Delegates, Mr K. Georghiadis, Adviser, State Legal Council, and Ms A. Magrippi, Legal Assistant, State Legal Council. The United Kingdom Government did not avail themselves of their right to intervene in the proceedings (Article 36 § 1 of the Convention).
3. The applicant alleged a violation of Article 6 § 3 (d) and Article 6 § 1 (fairness and length of proceedings) of the Convention.
4. On 5 October 2015 the Government were given notice of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1943 and lives in London.
6. The applicant is of Cypriot origin and has lived all of his adult life in London. In 1997 he and another British national, C.G., bought a plot of land in the Glyfada district of Athens.
7. In 1998 the applicant and C.G. asked the mortgage registry to register the deed of sale for the land in question. The mortgage registry refused to do so, since the State claimed ownership of the land. According to the Forestry Commission of the Ministry of Agriculture, the land had been classified as part of the forest estate since 1976.
8. In 2002 the applicant secured an order from the Athens Court of First Instance requiring the mortgage registry to register the deed of sale; the mortgage registry did so on 31 January 2003. The applicant paid the sum of 36,911.63 euros (EUR) in registration fees.
9. The public prosecutor’s office appealed against the order and succeeded in having it set aside and the registration declared void.
10. On 29 March 2004 the investigating judge drew up an indictment in respect of the applicant and C.G., accusing the applicant of having forged: (a) a certificate from the tax authorities attesting that he had paid inheritance tax on land valued at EUR 63,768,920, whereas he knew that the land was part of the public forest estate and the tax had not been paid; and (b) a document allegedly issued by the Penteli Forestry Commission attesting that the land was not part of the forest estate. The investigating judge also accused him of having used the forged documents to persuade the administrative authorities that the land was privately owned and could be the subject of a transaction, in particular a deed of transfer.
11. The file included a handwriting analysis requested by the public prosecutor’s office, dated 29 June 2003 and produced by a lawyer and graphology expert, M.M.K., who had taken an oath on 17 April 2003 to discharge that function. The sixty-two-page report concluded that one of the two documents “appeared to have been entirely written” by the applicant and contained an illegible signature, whereas aspects of the signature on the other document “strongly suggested that it had been added” by the applicant’s co-accused. On 8 May 2003 the applicant, through his lawyer, had appointed another expert, C.T.S., as a “technical adviser” to assist him.
12. When presenting his defence to the investigating judge on 29 March 2004, the applicant disputed the competence of the graphologist M.M.K. He mentioned that two associations of graphologists of which she had claimed to be a member had stated that they had no knowledge of her and that a British graphologist, F.C., had noted in a report that M.M.K. was not qualified and that her comments were incorrect. However, the applicant did not submit any reports by his own technical adviser.
13. On 7, 28 and 29 December 2004 the applicant submitted three reports by a different expert, D.K., whom he had instructed. The reports concluded that the documents in issue had not been written by the applicant and that the report by M.M.K. was inaccurate.
14. On an unspecified date the applicant and C.G. were committed for trial in the Athens Criminal Court of Appeal, sitting as a bench of three judges, on charges of forgery and the use of forged documents.
15. The hearing, concerning not only the applicant but also other individuals whose cases had been joined to his, was initially set down for 8 May 2006 and was then adjourned until 30 October 2006 and subsequently 12 March 2007, as the defendants’ lawyers were unable to attend. It eventually took place on 12, 14 and 20 March 2007.
16. On 12 March 2007 counsel for the applicant asked the president of the Criminal Court of Appeal to call M.M.K. and D.K. to give evidence. The president adjourned the hearing and directed that the public prosecutor’s office was to ensure the attendance of the two experts. On the resumption of the hearing on 14 March 2007, only D.K. was present; he confirmed the findings set out in his three reports. No explanation was given for M.M.K.’s absence. Subsequently, all the evidence was read out (105 documents running to a total of more than 1,500 pages), including the report by M.M.K., the defence witnesses gave testimony, and counsel for the defence asked questions and made their submissions without mentioning the need to examine other witnesses. At the end of the hearing, the president asked all the parties to the proceedings whether they wanted any additional examinations or explanations, but they replied in the negative.
17. On 20 March 2007 the Criminal Court of Appeal found the applicant guilty of forgery and the use of forged documents and sentenced him in absentia to twelve years’ imprisonment. Addressing the findings of M.M.K.’s report, it noted the following:
“The forgery of the aforementioned certificates by the first two defendants has been validly proved beyond all doubt, in particular through the handwriting analysis by the graphology expert M.M.K., the contents of which the court finds entirely convincing; in addition, the report’s credibility is backed up by the documents in the file and the witness testimony. It can be established with little effort from an assessment of these items of evidence that the certificates were forged by the defendants, who, moreover, were the only people with an interest in taking such action.”
18. On 20 March 2007 the applicant appealed against that judgment to the Athens Criminal Court of Appeal, sitting as a bench of five judges. The hearing, which had initially been set down for 6 February 2009, was adjourned until 20 November 2009 and subsequently 19 March 2010, as counsel for the defendant was unable to attend.
19. The hearing eventually took place on 19, 26 and 29 March and 8 April 2010. The Court of Appeal upheld the applicant’s conviction in his absence but reduced his sentence to eleven years’ imprisonment. At the end of the hearing, counsel for the defence asked the Court of Appeal to examine D.P. as a witness, and also the experts D.K. and M.M.K.
20. The Criminal Court of Appeal refused the request in respect of all the witnesses mentioned, holding as follows:
“The defendants’ request to call the graphologist [M.M.K.] and the witness [D.P.] cannot be accepted as it is not deemed necessary in view of the evidence gathered so far. The graphologist [M.M.K.] has produced a detailed analytical report, which has been read out in court ...
With regard to the forged documents, several expert reports have been submitted and read out; accordingly, the attendance of these witnesses is also unnecessary on account of the evidence gathered. The defendants who are asking for the above-mentioned witnesses to be called to testify in court have, moreover, not stated the reason for their request ...”
21. As regards the expert report by M.M.K., the Court of Appeal held that the applicant had had no factual or legal basis for challenging it, and that his objections were contradicted by the factual circumstances, which were established and undisputed. Summing up, over six pages, the factual circumstances as established by the documents and the witness testimony, the Court of Appeal also mentioned the findings of M.M.K.’s report, describing it as “detailed” while adding:
“The contents and conclusions of the handwriting analysis by M.M.K. are convincing and consistent with the documents issued by the tax authorities, the Forestry Commission, the Criminal Investigation Department and the other documents that have been read out, and also with the witness testimony.”
22. On 15 February 2010 the applicant appealed on points of law. He alleged that there had been a violation of Article 6 § 3 (d) of the Convention in that he had been convicted solely on the basis of the report by M.M.K., without having been allowed to cross-examine her at the hearings in the courts of first instance and appeal. The applicant relied on an extensive body of the Court’s case-law in this area and even reproduced the relevant passages, translated into Greek, of seven judgments of the Court. He pointed out that although his counsel had asked both the first-instance and the appellate court to examine M.M.K., she had not appeared in court despite having been called to give evidence. He noted that in the appeal proceedings the defendants’ request had been refused on the grounds that M.M.K. had produced a detailed analytical report, the conclusions of which had been read out in court. Nevertheless, the applicant had been deprived of his right to cross-examine her.
23. The hearing, which had been set down for 1 April 2011, was postponed until 18 November 2011 at the applicant’s request. In a judgment of 5 April 2012 (finalised on 7 May 2012 and certified as authentic on 4 July 2012) the Court of Cassation dismissed the appeal on points of law. In response to the ground of appeal alleging a violation of Article 6 § 3 (d), it held:
“... However, these requests [by the defendants], as formulated, were wholly vague and the court ... was not obliged to reply to them in detail. Nevertheless, the court rejected the requests in the following terms, on sufficient and substantiated grounds: ‘The defendants’ request to call the graphologist [M.M.K.] and the witness [D.P.] cannot be accepted as it is not deemed necessary in view of the evidence gathered so far. The graphologist [M.M.K.] has produced a detailed analytical report, which has been read out in court ... The defendants who are asking for the above-mentioned witnesses to be called to testify in court have, moreover, not stated the reason for their request ...’ Accordingly, the ground of appeal submitted to that end by John Constantinides, alleging a violation of Article 510 § 1 (a) and (d) [failure to provide specific reasons] of the Code of Criminal Procedure, is unfounded and must be dismissed, since no provision relating to the accused’s defence rights has been infringed, whether Article 6 § 3 (d) of the Convention or the constitutional requirement to provide detailed and specific reasons for a judicial decision.”
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
28. The applicant complained that the trial and appeal courts had refused to examine an expert whose report had formed the sole basis for his conviction, and that the Court of Cassation had not given sufficient reasons for dismissing his ground of appeal on that account. He alleged a violation of Article 6 §§ 1 and 3 (d) of the Convention, which provides as follows:
“1. In the determination... of any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
A. Non-attendance in court of the graphology expert M.M.K.
...
2. Merits
(a) The parties’ submissions
(i) The applicant
30. The applicant submitted that the expert report by the graphologist M.M.K. was the only evidence, or at least the decisive evidence, in support of his conviction. He contended that the Government had made abstract references in their observations to other items of evidence on which the domestic courts had allegedly based their decisions, but had not specified what they were, even though the Government representatives had all the case materials in their possession and had therefore been in a position to indicate to the Court which other items of evidence had been decisive. The applicant also asserted that contrary to what the Government maintained, he had not waited until a late stage of the appeal proceedings before asking for M.M.K. to be called to give evidence; he had already done so at first instance, and moreover, the hearing of his appeal had extended over several days because of adjournments, and the date on which his request was examined had not been his responsibility.
31. The applicant disputed that he had had an obligation to inform the court in advance of the nature of the questions he wished to ask M.M.K. Article 6 did not provide for the possibility of notifying a witness of the matters on which a defendant wished to examine him or her. Such advance notice would thwart the purpose of cross-examination, which was to test the witness’s credibility, and would give the witness the opportunity to prepare answers that suited his or her own interests.
32. The applicant emphasised that he had not only wished to challenge the validity of the findings of the relevant expert report. Since the report dealt with a technical subject, M.M.K. should have had to reply orally in court to the questions raised in the separate report by the expert D.K., who had been instructed by the applicant himself. The attendance of M.M.K. had been important in terms of equality of arms; her report had generated considerable publicity in favour of the prosecution authorities, and M.M.K. had in reality been a “witness for the prosecution”.
(ii) The Government
33. Relying on the Court’s judgments in Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996-II), Brandstetter v. Austria (28 August 1991, Series A no. 211) and Bönisch v. Austria (6 May 1985, Series A no. 92), the relevant Articles of the Code of Criminal Procedure and the fact that M.M.K. had been an expert and not a “witness”, the Government argued that Article 6 § 3 (d) was not applicable in the present case, and that even if it were, it had not been breached.
34. The Government asserted firstly that the theory of criminal law made a clear distinction between witnesses and experts. Witnesses gave evidence about facts of which they had personal knowledge or of which they had been informed by others in relation to a specific criminal case. Experts, however, took an oath to discharge their duties impartially on the basis of scientific truth; they did not support the case for the prosecution, but, by means of a report, assisted the court in matters requiring specialist knowledge. The defendant could challenge the contents of the report by having another report drawn up by technical advisers, whom he or she was at liberty to appoint.
35. The Government contended that the applicant had not complained at the end of the appeal hearing about M.M.K.’s non-attendance, had not challenged her professional ability before the courts and had not explained why he had asked for her to be examined at such a late stage of the hearing of his appeal. It had therefore been logical for the trial and appeal courts and the Court of Cassation to conclude that the applicant had intended to dispute only the validity of the expert report and its findings. He had been given several opportunities to do so, and had indeed done so by submitting handwriting analyses and instructing another graphologist to give testimony. However, none of this evidence indicated any convincing reasons for examining M.M.K. in court.
36. In the Government’s submission, the same facts had likewise not given rise to a breach of the adversarial principle and equality of arms. The applicant had had every opportunity to challenge the conclusions of M.M.K.’s report. In particular, he had simply appointed a technical adviser without actually calling on her services; at first instance, he had not asked for M.M.K.’s report to be excluded from consideration; and on appeal, he had asked for M.M.K. to be called but had not specified what relevant questions she should have answered. The Court of Appeal, when examining the applicant’s appeal, had not been obliged to order M.M.K.’s forced attendance since it had found, on substantiated grounds, that this was not necessary. It had also held that the applicant’s guilt had been established beyond all doubt, even without the expert report by M.M.K. The reasons given by the trial and appeal courts had been exhaustive and sufficient. They had been based on witness testimony and other evidence set out in 105 documents running to a total of approximately 1,500 pages.
(b) The Court’s assessment
(i) General principles
37. The Court reiterates that the notion of “witness” is to be interpreted autonomously from its meaning in the domestic law of the Contracting States (see Kostovski v. the Netherlands, 20 November 1989, § 40, Series A no. 166, and Damir Sibgatullin v. Russia, no. 1413/05, § 45, 24 April 2012). Although the wording of Article 6 § 3 (d) refers to witnesses and not experts, the guarantees in paragraph 3 are inherent aspects of the right to a fair trial enshrined in paragraph 1 of Article 6. The Court has thus concluded that the right of a person charged with a criminal offence to examine experts is protected by the general principle set forth in Article 6 § 1 and is to be examined under that paragraph, “whilst having due regard to the guarantees of paragraph 3” (see Brandstetter, cited above, § 42, and Matytsina v. Russia, no. 58428/10, § 168, 27 March 2014).
38. The opinion of an expert appointed by the competent court to address the questions raised by the case is liable to have a significant impact on that court’s assessment of the case. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question witnesses against him, either when they make their statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II, and Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001-X). If a court decides that an expert assessment is needed, the defence should have the opportunity to put questions to the experts, to challenge their findings and to examine them directly at the trial (see Mirilashvili v. Russia, no. 6293/04, § 190, 11 December 2008).
39. In Schatschaschwili v. Germany ([GC], no. 9154/10, § 111-31, ECHR 2015) the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not of itself render a trial unfair, although it remained a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which could tip the balance in favour of a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent witness was the sole or the decisive basis for the accused’s conviction. It must also do so in those cases where it finds it unclear whether the evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight and that its admission may have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (see Seton v the United Kingdom, no. 55287/10, § 59, 12 September 2016). The Court considers that these principles are applicable, mutatis mutandis, in the present case, which concerns experts.
(ii) Application of those principles in the present case
40. In the present case, the Court observes firstly that despite the fact that the Court of Criminal Appeal, sitting as a court of first instance, had ordered the attendance of M.M.K., it did not proceed to examine her and did not provide any explanation for this omission. In the appeal proceedings, the Court of Appeal rejected the applicant’s request outright, holding that the expert’s attendance was not necessary. The Greek courts therefore did not do everything that could reasonably have been expected of them to secure the attendance of M.M.K.
41. Next, the Court notes that during the proceedings at first instance, the Court of Appeal emphasised that it had been validly proved beyond all doubt – in particular by M.M.K.’s report, the credibility of which was backed up by the documents in the file and the witness testimony – that the certificates had been falsified by the defendants, including the applicant. In the appeal proceedings, the Court of Appeal held that the contents and conclusions of the report were convincing and consistent with the documents issued by various State authorities and the witness testimony. It is clear from the wording of its judgments at first instance and on appeal that the Court of Appeal regarded the expert report by M.M.K. as an important document which was corroborated by other items of evidence.
42. It remains to be determined whether, given the two above-mentioned aspects that worked to the applicant’s detriment, sufficient counterbalancing factors were present to ensure that he had a “fair trial”.
43. In this connection, the Court notes firstly that after M.M.K. had been appointed as an expert at the prosecution’s request, the applicant, through his counsel, had appointed another expert, C.T.S., to assist him as a “technical adviser”, as he was entitled to do under domestic law. However, he never actually called on her services. Furthermore, on 7, 28 and 29 December 2004 the applicant submitted three reports by a different expert instructed by him, D.K., which concluded that the documents in issue had not been written by the applicant and that the report by M.M.K. was inaccurate (see paragraph 13 above). At the first-instance hearing in the Court of Appeal, which had called him to give evidence, this expert defended his reports in favour of the applicant.
44. The Court further notes that although the applicant disputed M.M.K.’s professional competence when presenting his defence to the investigating judge, he did not ever do so in the proceedings before the trial and appeal courts, instead simply casting doubt on the findings of her report. Furthermore, in particular at first instance, the applicant, who had asked for M.M.K. to be called, did not react either when she was not present at the resumption of the hearing or when the president of the Court of Appeal asked the parties at the end of the hearing whether they wished any additional examinations to be conducted (see paragraph 16 above).
45. It therefore appears that the applicant had the opportunity to dispute the findings of M.M.K.’s report and availed himself of that opportunity, in particular by submitting three reports prepared by the expert he had instructed, D.K., who presented his findings orally at the first-instance hearing before the Court of Appeal.
46. The Court also attaches importance to the fact that the applicant did not explain to the Court of Appeal, in the appeal proceedings, why he wished to cross-examine M.M.K. at the hearing. Although it accepts his argument that it would not have been appropriate for him to disclose in advance the questions he intended to put to M.M.K., it would have been reasonable for him to give the Court of Appeal some indication at least of the reasons why he considered the examination of M.M.K. at the hearing to be absolutely necessary, or of what it would have added to the findings of the expert D.K. However, the applicant did not give any such indications, and has not even done so in the proceedings before the Court.
47. The Court observes that the trial and appeal courts emphasised that the contents and conclusions of M.M.K.’s report were consistent with a series of other official documents, issued by bodies including the tax authorities, the Forestry Commission and the Criminal Investigation Department, and also with the witness testimony (see paragraph 21 above). In this connection it should be noted that the file included 105 documents running to a total of approximately 1,500 pages. The report by M.M.K. was one of the documents in the file.
48. It therefore considers that the present case should be distinguished from cases in which the trial courts’ finding as to an applicant’s guilt is based to a decisive extent on the evidence of witnesses against him whom he has been unable to examine at any stage. The present case does not concern witnesses who gave evidence on matters they had seen or learnt about by hearsay (see, among many other authorities, Nikolitsas v. Greece, no. 63117/09, §§ 38-39, 3 July 2014), but rather an expert report which was drawn up by an independent expert appointed by the judicial authorities during the investigation with the aim of providing the court with information on a technical aspect of the case, and the findings of which were scrutinised by an expert instructed by the applicant himself. In that respect the present case differs from Matytsina (cited above, § 175), in which the Court found a violation of Article 6 §§ 1 and 3 (d) because, among other things, the domestic court had before it an expert report which had been produced by the prosecution without any involvement of the defence, and the findings of which the defence had been unable to challenge at the hearing.
49. In the present case, by contrast, at least at the hearing stage, the expert instructed by the applicant was able to call M.M.K.’s findings into question, both orally and in writing. The fact that the applicant did not take such steps prior to the hearing was due to his own conduct, since he did not seek the assistance of the technical adviser he himself had appointed (see paragraph 11 above).
50. To sum up, while the Criminal Court of Appeal, in the first-instance proceedings, did not take all possible steps to require M.M.K. to appear before it, she was an expert rather than a witness, and her report was not the sole or decisive basis for the applicant’s conviction. Furthermore, there were sufficient counterbalancing factors in the applicant’s case as he appointed his own expert, who submitted three reports and testified at the hearing. The requirements of the adversarial principle were therefore satisfied in his case.
51. Having regard to the foregoing, the Court considers that the applicant’s defence rights were not restricted to a degree incompatible with the requirements of a fair trial.
52. There has therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
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FOR THESE REASONS, THE COURT, UNANIMOUSLY,
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3. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint about an expert’s non-attendance at hearings;
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Done in French, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata DegenerMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy