AS TO THE ADMISSIBILITY OF
Application No. 21227/93
by George TSALOUHIDIS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 11 September 1992
by George TSALOUHIDIS against Greece and registered on 22 January 1993
under file No. 21227/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen born in 1932 and living in
Dionysos, Attica. He is a pilot by profession. Before the Commission
he is represented by Mr. I. Stamoulis, a lawyer practising in Athens.
The facts of the case as they have been submitted by the
applicant may be summarized as follows:
A. Particular circumstances of the case
On 7 November 1987 the applicant requested permission to travel
gratis between Athens and Frankfurt on a scheduled flight of "Olympic
Airways", the company he worked for. He also persuaded one of the
captains of that flight to carry for him a package, allegedly
containing cutlery. He asked for the package to be placed in the
briefcase containing the official flight documents which would not be
subject to customs control. The applicant eventually did not board the
plane. During the flight the captain unwrapped the package and
discovered antiquities which he handed over to the police authorities
at Corfu airport.
Following this event a police enquiry was opened. In the course
of the investigation, other antiquities were found in the applicant's
apartment during a police search.
The applicant claimed that he was the lawful owner of a private
collection, that he had imported the antiquities legally in Greece and
that, as a result, he was allowed to export them freely in accordance
with Greek law. The prosecuting authorities, on the other hand,
considered that he had forged the customs documents and that, in any
event, he had not fully complied with the formalities prescribed by law
in order to acquire lawful possession. As a result, he was not allowed
to export the antiquities. His attempt to export the antiquities
surreptitiously on 7 November 1987 indicated that he was aware of the
illegal character of his actions.
On 27 April 1990 the Indictments Chamber of the First Instance
Court of Athens (Symvoulio Plimeliodikon) committed the applicant for
trial under the charges of embezzlement of particularly valuable
objects belonging to the Greek state, export of antiquities, attempted
smuggling of goods and failure to declare antiquities with a view to
disposing illegally of them. The charge of forgery and use of forged
documents with a view to making financial gains to the detriment of a
third person was subsequently joined to the indictment.
Due to the particularly grave nature of the charges the applicant
was committed before the three-member Athens Court of Appeal (Trimeles
Efeteio).
The applicant appealed against the decision of the Chamber before
the Indictments Chamber of the Athens Court of Appeal (Symvoulio
Efeton), which ordered further investigations and appointed an expert-
graphologist (decision 2287/90). Upon completion of the investigation,
the Indictments Chamber of the First Instance Court of Athens committed
the applicant again before the same court under the same charges
(decision 1353/90).
On 27 April 1990 the applicant appealed against the decision
before the Indictments Chamber of the Athens Court of Appeal. On
14 May 1990 and 10 April 1992 he asked to be heard in person.
On 22 July 1992 the Indictments Chamber issued decision 1780/92
committing the applicant before the three member First Instance
Criminal Court of Athens (Trimeles Plimeliodikeio), amending the
indictment to embezzlement of particularly valuable objects which came
to the applicant's possession by means unknown, failure to declare
antiquities with a view to disposing illegally of them, attempted
exportation of the above-mentioned antiquities and attempted smuggling
of goods. By the same decision the Chamber rejected his application to
be heard in person at the proceedings.
On 17 August 1992 the applicant filed an appeal in cassation
against the decision of the Indictments Chamber of the Court of Appeal,
claiming that the law concerning the importation of antiquities had
been wrongfully interpreted and applied in his case. On 9 September
1992 the applicant requested the Court of Cassation (Areios Pagos) to
authorize him to take part in person and be represented by counsel in
the proceedings in order to make submissions on the issue of the
admissibility of his appeal. More in particular, the applicant wished
to invoke Article 6 of the Convention, which was allegedly violated in
that Greek law gives the Public Prosecutor the right to appeal in
cassation against the indictment, something which the applicant was not
allowed to do in the circumstances of the case.
On 15 October 1992 the Court of Cassation dismissed the
applicant's appeal as inadmissible on the ground that the Code of
Criminal Procedure did not grant the applicant the right to appeal in
cassation against the indictment. According ot the Court of Cassation,
the relevant provisions did not raise any issues under Article 6 of the
Convention or Article 20(1) of the Constitution, which enshrines the
right of the individual to seek protection by the courts. The Court
considered that Parliament was allowed to limit the right of appeal in
cassation against an indictment in view of the lack of severity of the
crime or of the general interest in a speedy conclusion of the
proceedings. The persons affected could present arguments in their
defence during trial or when appealing against the decision of the
trial court. Although an issue could arise if the law had made
unjustified distinctions in the enjoyment of procedural rights between
the parties, the Public Prosecutor could not be treated as a party to
the proceedings.
On 6 April 1993 the First Instance Criminal Court of Athens
acquitted the applicant of the charges.
B. Relevant domestic law
According to Article 482 para. 1 of the Greek Code of Criminal
Procedure the accused has no right to appeal in cassation against a
decision of the Indictments Chamber except (a) when the Chamber
terminates provisionally the criminal action against the accused and
(b) when it considers that the accused should not be prosecuted after
he has demonstrated genuine repentance and repaired the damage he may
have caused. Article 483 of the same Code provides that the Public
Prosecutors of the First and Second Instance Courts have the right to
appeal in cassation against a decision of the Indictments Chamber of
the court to which they are attached which either commits the accused
for trial for one of the more serious crimes (kakourgima), or considers
that no charges should be brought, or orders that the criminal action
should be definitively or provisionally terminated, or rules that it
is inadmissible. The same provision gives the Public Prosecutor of the
Court of Cassation the right to appeal in cassation against any
decision of any Indictments Chamber.
COMPLAINTS
The applicant complains that he has been deprived of his right
to equality of arms as a result of legislation which excludes the
accused from appealing in cassation against a decision of the
Indictments Chamber while this right rests with the Public Prosecutor.
He also claims that the relevant Articles 482 para. 1 and 483 of the
Greek Code of Criminal Procedure are in themselves incompatible with
the Convention. Despite his acquittal, the applicant wishes to pursue
his application so that Greece will be forced to repeal the above-
mentioned provisions. He invokes Article 6 paras. 1 and 3 (d) of the
Convention.
THE LAW
1. The applicant claims that the provisions in the Code of
Criminal Procedure which introduce a distinction between the accused
and the Public Prosecutor as regards the right to appeal in cassation
against the indictment violate Article 6 (Art. 6) of the Convention.
The Commission recalls its constant case-law to the effect that
it is competent to examine the compatibility of domestic legislation
with the Convention only with respect to its application in a concrete
case, while it is not competent to examine in abstracto its
compatibility with the Convention (No. 7045/75, Dec. 10.2.76, D.R. 7
p. 87).
This part of the application is, therefore, incompatible ratione
personae with the provisions of the Convention and must be rejected
under Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains that the principle of equality of arms
was not observed in his case, since he, contrary to the Public
Prosecutor, did not have the right to appeal in cassation against his
indictment. He invokes in this connection Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing."
Para. 3 (d) of the same article guarantees the right of every
person who is charged with a criminal offence
"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."
The Commission first points out that the aim of Article 6 para.
3 (d) (Art. 6-3-d) is to guarantee certain rights for the accused in
connection with the examination of witnesses. Equality of arms is one
of these rights (Eur. Court H.R., Engel judgment of 23 November 1976,
Series A no. 22, p. 39, para. 91). The applicant, however, does not
complain of procedural inequality in the examination of witnesses. As
a result, Article 6 para. 3 (d) (Art. 6-3-d) is irrelevant in the
context of the present application.
It is true, on the other hand, that the second provision invoked
by the applicant, Article 6 para. 1 (Art. 6-1), guarantees the
principle of equality of arms inherent in the notion of fairness under
Article 6 para. 1 (art. 6-1) (cf. Delcourt judgment Series A no. 11,
p. 15 para. 28).
The Commission notes, however, that at the end of the proceedings
the applicant was acquitted of the offences with which he had been
charged. The outcome of the trial could not have been more favourable
for the applicant and any defects the proceedings might have had must
be considered to be remedied. It follows that the applicant can no
longer claim to be a victim, within the meaning of Article 25
(Art. 25), of a violation of Article 6 (Art. 6) of the Convention (cf.
No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223 and No. 15831/89,
Dec. 25.2.91, D.R. 69 p. 317). His complaint is therefore manifestly
ill-founded and must be rejected, pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy