AS TO THE ADMISSIBILITY OF
Application No. 16983/90
by Muharrem GÜLEÇ
against Greece
The European Commission of Human Rights sitting in private on
10 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 November 1989
by Muharrem GÜLEÇ against Greece and registered on 6 August 1990 under
file No. 16983/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
23 September 1993 and the observations in reply submitted by the
applicant on 17 and 31 March 1994 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant was born in 1946 and is a Turkish and Dutch
national. At the time of lodging his application the applicant was
detained in the Patras prison. He is currently detained in the Corfu
prison. In the proceedings before the Commission he is represented by
Mrs. M.D. van Aller, a lawyer practising in Amsterdam.
A. The particular circumstances of the case
The facts of the case as submitted by the parties may be
summarised as follows:
On 3 January 1988 the applicant was arrested at the Nea Gefira
Evrou customs station, on the Greek-Turkish frontier, when heroin was
discovered in his car. Four reports concerning the applicant's arrest,
his plea of defence, the in flagrante character of the offence and the
seizure of the drugs and of the car were drafted on the spot by the
customs officers who had made the discovery and arrested the applicant.
The applicant claims that the presence of three Greek citizens
in his car at the moment of his arrest was intentionally concealed in
these reports. He also alleges that the customs officers kept 1,3 kilos
of the heroin they discovered in his car, mentioning in their reports
that they had seized only 6,95 kilos of drugs.
On 4 January the applicant testified before the investigating
judge, with the help of a customs officer who acted as an interpreter.
On 5 May 1988 the applicant appeared before the three-member
Court of Appeal of Komotini (Trimeles Efeteio) which heard his case at
first instance. He was represented by Mr. A, a lawyer practising in
Alexandroupoli, whom he had engaged and paid for himself. He was also
assisted by an interpreter, Mrs. S. Defence counsel pleaded that the
applicant was a drug user and requested a medical examination. The
court refused the request, found the applicant guilty of a series of
drug related offences, and sentenced him to 20 years' imprisonment and
a fine of 50.000.000 GrDrs.
The applicant appealed against his conviction before the five-
member Court of Appeal (Pentameles Efeteio) which heard his appeal on
20 0ctober 1988. The applicant was represented by Mr. T, a lawyer
practising in Thessaloniki, whom he had engaged and paid for himself.
He was again assisted by the same interpreter. The applicant claims
that the court ordered his eviction from the courtroom when he asked
to see a report he had not received. The court rejected his appeal.
On 15 November 1988 the judgment of the Court of Appeal was
finalised (katharographi). On 16 November 1988, while in prison, the
applicant received a communication from Mr. T, the lawyer who had
represented him at second instance, to which an appeal memorial drafted
by the latter was attached. Mr. T invited the applicant to appeal in
cassation by submitting the memorial to the director of the prison.
The applicant submitted his appeal on 18 November 1988. The
applicant's appeal was grounded on the fact that the decision of the
Court of Appeal at second instance was inadequately reasoned and, more
specifically, that "the Court of Appeal breached Article 510 para. 1(d)
of the Code of Criminal Procedure by not mentioning in its decision the
facts on the basis of which the court had considered that all the
elements of the offence were present in the applicant's case, the
evidence on the basis of which the court had been convinced about the
existence of these facts and the legal grounds on the basis of which
the court had considered that the particular set of facts fell within
the ambit of the legal provisions it had applied". In his memorial of
18 November the applicant, following the instructions of his lawyer,
reserved the right to expand on the grounds of his appeal by lodging
a memorial of "additional grounds" (prosthetoi logoi).
On 11 January 1989 the applicant was informed that his appeal in
cassation would be heard on 21 April 1989. On 8 March 1989 Mr. T
informed the applicant that 150.000 GrDrs were needed with a view to
instructing counsel entitled to appear before the Court of Cassation
who would have formulated "additional grounds" at the latest 15 days
before the appeal hearing.
Not having the necessary means, the applicant addressed himself
to the Netherlands Embassy. However, their assistance was not
forthcoming. The applicant claims that he was first informed of the
possibility of requesting the appointment of a legal aid lawyer on 13
April 1989. He immediately lodged an application to this effect with
the prison authorities, which was, however, refused.
The applicant's appeal in cassation was rejected on 11 September
1989 as inadmissible, the applicant not having been represented by
counsel.
On 5 October 1989 the applicant was asked to pay the sum of
18.000 GrDrs, as ordered by the Court of Cassation, in respect of the
costs of the proceedings before this court. The decision of the Court
of Cassation was communicated to the administration of the prison. The
applicant claims that, despite his repeated requests, the decision was
never served on him and that he was first informed in detail about the
outcome of the proceedings and the reasons for the rejection of his
appeal in cassation on 30 September 1991 when he received a letter by
the Netherlands Embassy concerning these matters.
Having paid the 18.000 GrDrs mentioned above, the applicant asked
to be transferred to a prison in the Netherlands. His request was
rejected by the Greek authorities on the ground that he had not paid
the entirety of the penalty imposed on him by the criminal courts. The
Greek authorities refused to take into consideration a certificate of
lack of means issued by the Dutch authorities.
B. Relevant domestic law
1. Article 510 para. 1 (d) of the Code of Criminal Procedure
mentions, among the various grounds of appeal in cassation against a
lower court decision, the "inadequate reasoning of the decision,
contrary to the provisions of the Constitution".
According to the constant case-law of the Court of Cassation, the
grounds of appeal in cassation must be sufficiently substantiated,
otherwise the appeal is rejected as inadmissible. Appeals in cassation
which refer in general to the lack of adequate reasoning, without
specifying any particular gaps, ambiguities, contradictions or other
deficiencies, are always declared inadmissible as insufficiently
substantiated (Court of Cassation decisions No. 1438/86, (Poinika
Chronika vol. 37, p. 170, 44/87, Poinika Chronika vol. 37, p. 309,
30/87, Poinika Chronika vol. 37, p. 308, 182/1987, Poinika Chronika
vol. 37, p. 605, and 1453/87, Poinika Chronika vol. 38, p. 191).
2. Persons appealing in cassation must lodge their appeal, in
accordance with Article 473 paras. 1 and 3 of the Code of Criminal
Procedure, within five days from the finalisation of the judgment
(katharographi), i.e. the entering of the judgment in a special book
at the registry of the criminal court.
In accordance with Article 474 of the Code, the appeal is lodged
by making a declaration to this effect before one of various public
authorities, including the director of the prison where the appellant
is detained. A report is drawn up which must contain the grounds of the
appeal.
Article 473 para. 2 of the Code provides a twenty day time-limit
within which an appeal in cassation may be lodged by the accused
against a decision finding him guilty, by making a declaration to this
effect before the Attorney General of the Court of Cassation. This
declaration may supplement an appeal in cassation lodged before one of
the authorities mentioned in Article 474, "when the latter does not
contain any sufficiently substantiated grounds".
In accordance with Article 509 para. 2 of the same Code, the
appellant may submit "additional grounds" of appeal by lodging a
supplementary memorial with the office of the Attorney General of the
Court of Cassation not later than fifteen days before the hearing.
However, according to the constant case-law of the Court of
Cassation, "additional grounds" may be taken into account only if at
least one admissible and sufficiently substantiated ground is set out
in the initial memorial of appeal in cassation (Court of Cassation
decisions 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979,
(Nomiko Vima 1980, p. 56, 647/1983, 1438/1986, Poinika Chronika vol.
37, p. 170, and 1453/87, Poinika Chronika vol. 38, p. 191).
This case-law limitation applies to the "additional grounds"
which may be submitted within the time-limit of Article 509 para. 2
only. It does not apply to the grounds which may be submitted within
the twenty day time-limit of Article 473 para. 3, which, in accordance
with the express letter of the provision, may supplement the initial
memorial "when the latter does not contain any sufficiently
substantiated grounds" (Court of Cassation decisions No. 325/63,
Poinika Chronika 1963, p. 630, and 333/63, Poinika Chronika 1963, p.
632).
COMPLAINTS
1. The applicant complains under Article 6 of the Convention of the
fairness of the criminal proceedings against him.
In particular, the applicant complains of the alleged inadequacy
of the interpreters who assisted him at various stages in the
proceedings. He claims that the interpreter who assisted him during his
examination by the investigating judge magistrate was a customs officer
who modified the applicant's statements in order to conceal the
irregularities committed by other customs officers who had seized the
drugs. The applicant alleges that he could not understand the
interpreter who assisted him during the two hearings before the Court
of Appeal of Komotini and who, moreover, translated his statements
badly with the result that the judges of the second instance court
considered that the applicant lacked respect for the court and expelled
him from the courtroom.
The applicant also complains about the conduct of his defence by
his lawyers, who, allegedly, disregarded his submission that the three
Greek citizens who were in his car at the time of his arrest were
neither arrested nor examined by the customs officers. Moreover, the
lawyer who represented the applicant at first instance pleaded,
contrary to his wishes, that he was a heroin user.
The applicant further complains of the fact that that he was
never notified of the content of the reports written by the customs
officers upon his arrest, despite their key importance for his
conviction. He also claims that he was not allowed to submit anything
in his defence at first and second instance.
In this context the applicant finally complains of the brevity
of the hearing before the first and second instance courts and of the
composition of the court at second instance, which, according to the
applicant, comprised one of the judges who had heard his case at first
instance.
2. The applicant next complains under Article 6 of the Convention
that he could not obtain the appointment of legal aid counsel who would
have represented him before the Court of Cassation.
3. Finally, the applicant complains under Article 3 of the
Convention of the conditions of his detention in the Greek prisons, in
particular overcrowded cells and a lack of medical care.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 November 1989 and registered
on 6 August 1990.
On 3 May 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their observations on the admissibility and the merits of the case.
The Government's observations were submitted on
23 September 1993, after an extension of the time-limit fixed for this
purpose. On 17 March 1994 the applicant submitted his observations in
reply, also after an extension of the time-limit fixed for this
purpose. On 31 March 1994 the applicant submitted supplementary
observations.
THE LAW
1. The applicant complains of unfair criminal proceedings against
him. In particular he complains of allegedly inadequate interpretation
and legal services, the non-notification of reports by the customs
officers who arrested him and the brevity of court hearings.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing. ...
3. Everyone charged with a criminal offence has the following
minimum rights: ...
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require; ...
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court".
As a preliminary point the Government submit that the applicant
has failed to exhaust domestic remedies because he did not raise any
of his complaints when appealing in cassation against the judgment of
the court of appeal. He also failed to institute criminal proceedings
against the interpreters under Article 226 of the Criminal Code.
The applicant submits that the grounds of his appeal in cassation
were drafted by his Greek lawyer without consulting him. The applicant
lodged the appeal in cassation although he was unable to understand its
contents. As a result, he cannot be held responsible for this document
and its deficiencies, of which he became aware for the first time on
30 September 1991 when he received a letter by the Netherlands Embassy
explaining the reasons for the rejection of his appeal.
The Commission recalls that where an accused person is
represented by a lawyer he must generally exercise his procedural
rights through his lawyer (No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50) and
that the accused cannot complain under the Convention of the acts or
omissions of his lawyers (No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21).
The Commission notes that in the proceedings before the first and
second instance courts the applicant was represented successively by
two Greek lawyers whom he had chosen and remunerated himself. The
grounds of the appeal in cassation lodged by the applicant on
18 November 1988 were drafted by the lawyer who had represented the
applicant at second instance.
The Commission also notes that the memorial lodged by the
applicant on the above-mentioned date did not contain any reference to
the complaints he is raising before the Commission. In fact, the
memorial did not contain any grounds which would qualify as admissible
and sufficiently substantiated, within the meaning of the constant
case-law of the Greek Court of Cassation.
Although the applicant now feels profoundly dissatisfied with the
handling of his appeal in cassation by the lawyer who had represented
him at second instance, there is no doubt that at the material time the
applicant wished to continue to be represented by this particular
counsel.
The Commission further notes that the same counsel continued to
represent the applicant, with the latter's consent, until 8 March 1989
when the question of the appointment of counsel entitled to plead
before the Court of Cassation first arose. As a result, the applicant
must bear the consequences of his lawyer's choice not to avail himself
of the possibility to supplement within the twenty day time-limit of
Article 473 para. 2 of the Code of Criminal Procedure the
insufficiently substantiated grounds he had submitted on
18 November 1988.
The Commission finally notes that the applicant would have been
precluded under domestic law from submitting additional grounds of
appeal after 8 March 1989, even if legal aid counsel had been
appointed.
The Commission concludes that in the circumstances of the present
case the applicant has not complied with the requirement under Article
26 (Art. 26) of the Convention to exhaust domestic remedies. It follows
that this part of the application must be rejected pursuant to Article
27 para. 3 (Art. 27-3) of the Convention.
2. The applicant next complains that he could not have access to the
Court of Cassation because he did not have the means to hire the
services of a lawyer entitled to plead before this jurisdiction.
The Commission refers to the rights guaranteed by Article 6 para.
3 (c) (Art. 6-3-c) of the Convention cited above.
As a preliminary point the Government submit that the applicant
has failed to exhaust domestic remedies because he did not request the
appointment of legal aid counsel by either the Court of Cassation or
one of the Bar associations, although such an appointment was possible
in accordance with Greek law at the material time. As to the substance
of the complaint, the Government submit that the applicant did not lack
the means to instruct counsel, having borne the expenses of his legal
representation before the first and second instance court, and that the
appointment of counsel was not necessary in the interests of justice,
the applicant's appeal in cassation not having contained any
"admissible and sufficiently substantiated" ground of appeal.
The applicant submits that legal aid for cassation appeals in
criminal cases is not available in Greece and that, in any event, he
was not aware of any such possibility until 13 April 1989. When on that
date he asked for legal aid, his application was refused. As to the
substance of the complaint, he submits that after over a year of
imprisonment in a foreign country he was completely destitute, that he
had been obliged to request the financial assistance of the Netherlands
Embassy, and that his own interests as an accused person rendered
necessary the appointment of legal aid counsel.
The Commission notes that that the Government and the applicant
disagree as to whether Greek law provides for the appointment of legal
aid counsel in criminal cases before the Court of Cassation and, if so,
whether the applicant had been duly informed and whether he effectively
attempted to avail himself of this possibility. The Commission
considers, however, that, in the circumstances of the case, the
question of exhaustion of domestic remedies may be left open, because
this part of the application is, in any event, manifestly ill-founded
for the following reasons:
The Commission notes that until 8 March 1989 the applicant was
represented by counsel of his own choice, who was fully competent under
domestic law to undertake all the procedural steps required to defend
the interests of his client. It also notes that the question of the
applicant's impecuniosity had not arisen before that date.
The Commission recalls that on 8 March 1989 the lawyer who had
represented the applicant at second instance informed him of the need
to instruct counsel entitled to plead before the Court of Cassation and
asked him for the relevant fee, which the applicant was unable to pay.
At that stage of the proceedings, however, the applicant was
already precluded under national law from raising before the Court of
Cassation the complaints he is now making before the Commission. The
Commission recalls, in this connection, that the applicant's memorial
did not contain any "admissible and sufficiently substantiated" ground
of appeal in cassation and that he failed to supplement it within the
twenty day period provided for under Article 473 para. 2 of the Code
of Criminal Procedure. This precluded him under domestic law from
raising any new grounds of appeal at the "additional grounds" stage
provided for by Article 509 para. 2 of the Code of Criminal Procedure,
i.e. not later than fifteen days before the hearing (cf. Eur. Court
H.R., Hadjianastassiou judgment of 16 December 1992, Series A no. 252,
pp. 14-15, para. 26, and p. 17, para. 36).
In these circumstances, the Commission finds that, even if the
applicant had obtained the appointment of legal aid counsel after
8 March 1989, this would not have improved his prospects of succeeding
in the casssation appeal. In these circumstances, the Commission does
not consider that the appointment of legal aid counsel was necessary
in the interests of justice, as envisaged by Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains under Article 3 (Art. 3) of the
Convention of the conditions of his detention in the Greek prisons.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
However, the Commission finds not only that the applicant has
failed to exhaust domestic remedies as regards this complaint, but also
that there is no evidence in the case-file to substantiate it.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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