AS TO THE ADMISSIBILITY OF
Application No. 24453/94
by Ali TARIGHI WAGEH DASHTI
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 24 October 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 April 1993 by
Ali TARIGHI WAGEH DASHTI against Greece and registered on 22 June 1994
under file No. 24453/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the Commission's decision of 9 December 1994 to communicate the
application;
- the observations submitted by the respondent Government on
22 February 1995 and the observations in reply submitted by the
applicant on 28 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Iranian citizen born in 1961 in Iran and
currently residing in Iran. In the proceedings before the Commission
he is represented by Mr. S. Katsios, a lawyer practising in
Thessaloniki.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
On 10 November 1989 the applicant was arrested, together with LA,
in H's flat in Athens. The police discovered in the flat drugs, foreign
currency and a number of forged passports. On 11 November 1989 RH was
also arrested in H's flat.
On 12 November 1989 the public prosecutor instituted criminal
proceedings against the applicant, LA and RH and ordered a judicial
investigation. On the same day the applicant and his two co-accused
were brought before the investigating judge who ordered them to re-
appear before him within 48 hours and make an initial statement. On
14 November 1989 they re-appeared before the investigating judge who
placed them in detention on remand.
On 21 November 1989 the investigating judge summoned H to appear
before him and on 28 November 1989 he issued a warrant of arrest
against him.
On 5 December 1989 the investigating judge charged a psychiatrist
with providing an expert opinion. On 15 December the latter was
submitted to the Public Prosecutor's Office.
On 29 December 1989 another expert opinion on the drugs
discovered in H's flat was submitted and the investigation was
concluded. The case-file was sent to the Public Prosecutor's Office.
On 25 January 1990 the case-file was submitted to the Public
Prosecutor of the Court of Appeal. On 12 February 1990 the latter
requested the President of the Court of Appeal to agree to the
applicant's, RH's, LA's and H's committal before the three-member Court
of Appeal (Trimeles Efeteio) of Athens for possession of drugs, drug-
trading, participation in a criminal gang, forgery and trading in
foreign currency. He considered that the Court of Appeal was competent
to hear the case because of the nature of the offences.
On 27 February 1990 the President of the Court of Appeal acceded
to the prosecutor's request and renewed the investigating judge's order
for the detention of the applicant.
On 11 May 1990 the Public Prosecutor of the Court of Appeal of
Athens summoned the applicant and the other three co-accused to appear
before the Court of Appeal of Athens on 16 November 1990. On
26 October 1990 the Court of Appeal of Athens, sitting in chambers,
authorised the prolongation of the applicant's detention for another
six months.
On 16 November 1990 the Court of Appeal decided to adjourn the
hearing, because no interpreter for the Persian language was present.
The trial took place on 8 March 1991 in the absence of H, whom the
police had not succeeded in apprehending. The Court of Appeal heard one
prosecution witness, the police officer who arrested the applicant, and
three witnesses for the defence. A number of exhibits were shown. The
applicant was found guilty of possession of drugs and acquitted of the
remaining charges. He was sentenced to 10 years imprisonment and a
fine of 500,000 drachmas. LA and RH were convicted of drug-trading,
forgery and trading in foreign currency. They all immediately appealed
before the five-member Court of Appeal (pentameles efeteio) of Athens.
The hearing of the appeal was fixed for 21 October 1992. The
applicant's appeal would have been the fourteenth appeal to be heard
on that date. However, on 21 October 1992 the court did not finish its
list and decided to postpone the hearing of the appeal until
22 October 1992.
In the evening of 21 October 1992 the members of the Athens Bar
decided to start a strike as from the next day. The applicant who was
represented by a member of the Thessaloniki Bar requested the severing
of his case from that of LA who was represented by two lawyers from
Athens. The court, however, refused the request and adjourned the
hearing. The applicant claims that a new hearing date was originally
fixed for 6 June 1994 and that his first attempt to obtain an earlier
hearing date was unsuccessful.
The lawyers' strike lasted until April 1993. On a date which has
not been specified, acting on the request of one of the applicant's co-
accused, the Public Prosecutor ordered that the appeal should be heard
on 20 October 1993. It would have been the fifteenth appeal to be heard
on that date. The court, however, did not finish its list and adjourned
for the next day. The president of the court indicated that a further
adjournment was envisaged until 26 October 1993. Defence counsel not
being able, however, to appear neither on 21 nor on 26 October 1993,
the court decided, at their request, to adjourn the hearing until
12 January 1994.
The Court of Appeal eventually heard the appeal on
12 January 1994. In a decision issued on 13 January 1994 it confirmed
the first instance court's decision, but reduced the applicant's
penalty to four years and six months imprisonment and a fine of
300,000 drachmas. It further ordered the applicant's expulsion and
permanent exclusion from Greece.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
about the length of the criminal proceedings against him.
Originally, the applicant had also complained of a violation of
Articles 3, 5 para. 3 and 14 of the Convention and of the right to a
fair hearing by an impartial tribunal under Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 April 1993 and registered on
22 June 1994.
On 7 November 1994 the applicant requested the Commission to
adopt interim measures under Rule 36 of its Rules of Procedure against
his imminent expulsion to Iran.
On 9 December 1994 the Commission decided not to apply Rule 36.
It also rejected the applicant's complaints under Articles 3, 5 para. 3
and 14 of the Convention and Article 6 para. 1 regarding the fairness
of his trial and the impartiality of the court. It further invited the
Government to submit written observations on the admissibility and
merits of the applicant's complaints regarding the length of the
criminal proceedings against him, pursuant to Rule 48 para. 2(b) of the
Rules of Procedure.
The Government's written observations were submitted on
22 February 1995. The applicant replied on 28 April 1995.
On 7 July 1995 the Commission decided to grant the applicant
legal aid.
On 16 October 1995 the Commission decided that the case should
be examined by the First Chamber.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the criminal proceedings against him.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention guarantees the right of every one to have a hearing within
a reasonable time in the determination of a criminal charge against
him.
The Government submit that the case was particularly complex
involving four accused persons, none of whom spoke Greek, and several
serious criminal acts, which had taken place in different places during
different periods of time. There were no significant delays during the
pre-trial stage. Both the first and second instance courts which heard
the applicant's case were particularly overburdened with work, as a
result, inter alia, of the lawyers' strike for which the Government
cannot be held responsible. Although there was an adjournment, the
first instance proceedings only lasted nine months. The first appeal
hearing had to be adjourned because the lawyers of one of the
applicant's co-accused were on strike and it was in the interests of
the proper administration of justice not to sever the proceedings
against the applicant. The second adjournment was requested by the
applicant's lawyer himself. In the light of all the above, the
Government conclude that the complaint is manifestly ill-founded.
The applicant submits that the pre-trial stage of the proceedings
was not concluded within a reasonable time. The Government were to be
held responsible for the delays caused by the overburdening of the
courts and the lack of interpreter services at the first trial hearing.
The strike of the Athens lawyers having been pre-announced, the defence
had expressly asked for the applicant's appeal to be heard on
21 October 1992, as it had been initially foreseen. The Government
could not invoke the lawyers' strike to justify the one-year delay
between the first and second appeal hearing. The defence applied for
the adjournment of the second appeal hearing at the suggestion of the
court, which had informed them that, if it had to adjourn proprio motu,
the hearing would not be held before October 1994.
In the light of the parties' observations, the Commission
considers that the application raises serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground
for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary Acting President
to the First Chamber of the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy