EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24294/94
Mosses Twalib
against
Greece
REPORT OF THE COMMISSION
adopted on 25 February 1997
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-35) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-29). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 30-35). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 36-84) . . . . . . . . . . . . . . . . . . . . .6
A. Complaints declared admissible
(para. 36). . . . . . . . . . . . . . . . . . . . .6
B. Points at issue
(para. 37). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 paras. 1 and 3 (c) of the Convention
(paras. 38-56). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 57). . . . . . . . . . . . . . . . . . . . 11
D. As regards Article 6 paras. 1 and 3 (b) of the Convention
(paras. 58-62). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 63). . . . . . . . . . . . . . . . . . . . 12
E. As regards Article 6 paras. 1 and 3 (e) of the Convention
(paras. 64-74). . . . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . 14
TABLE OF CONTENTS
Page
F. As regards Article 5 para. 2 of the Convention
(paras. 76-79). . . . . . . . . . . . . . . . . . 14
CONCLUSION
(para. 80). . . . . . . . . . . . . . . . . . . . 15
G. Recapitulation
(paras. 81-84). . . . . . . . . . . . . . . . . . 15
PARTLY DISSENTING OPINION OF MR. S. TRECHSEL, MRS. J. LIDDY
AND MM. B. MARXER, N. BRATZA, G. RESS AND K. HERNDL . . . . 16
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 17
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Tanzanian citizen, born in 1957 and resident
in Tanga, Tanzania. He was represented before the Commission by
Mr. S. Tsakyrakis, a lawyer practising in Athens, Greece.
3. The application is directed against Greece. The respondent
Government were represented by their Agent, Mr. L. Papidas, President
of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),
Mr. M. Apessos, Senior Adviser (Paredros) of the Legal Advisory Council
of the State, and Mrs. M. Basdeki, Legal Assistant (Dikastikos
Antiprosopos) of the Legal Advisory Council of the State.
4. The case concerns the fairness of criminal proceedings against
the applicant and the alleged failure of the authorities to inform him
in a language he understood of the reasons for his arrest. The
applicant invokes Articles 6 and 5 para. 2 of the Convention.
B. The proceedings
5. The application was introduced on 6 April 1993 and registered on
7 June 1994.
6. On 13 January 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 9 May 1995 after
an extension of the time-limit fixed for this purpose. The applicant
replied on 25 June 1995. On 26 May 1995 the Commission granted the
applicant legal aid for the presentation of his case.
8. On 26 February 1996 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 7 March 1996 and they were invited to submit such
further information or observations on the merits as they wished. The
applicant submitted observations on 10 July 1996, to which the
Government did not reply.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
12. The text of this Report was adopted on 25 February 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In 1986 the applicant was found guilty of drug-related offences
by the five-member Court of Appeal (pentameles efetio) of Athens and
given a prison sentence. On 3 November 1989 he was released from prison
and expelled from Greece.
17. On 16 February 1990 Mr. G.C. was arrested at the Athens airport
for transporting drugs. The applicant's telephone number was found on
G.C. On the same day the police went to a hotel in Piraeus where the
applicant was staying and found him in possession of a passport which
appeared to have been forged. The applicant was arrested and
transported to Athens where he was examined by the police still on
16 February 1996. A report was drawn up in which it is indicated that
the applicant, who claimed not to understand Greek but to speak
English, was assisted by Mr. H.L., an English-speaking police officer
acting as interpreter. In the report it is also stated that the
applicant was questioned on the reasons for his arrest and the forged
passport which had been found in his possession. According to the
report, the applicant provided extensive explanations as to his
movements after he had been released from prison on 3 November 1989 and
as to his acquaintance with Mr. V, a third person who had also been
arrested. The applicant denied all involvement in drug-trafficking. On
17 February 1990 the applicant was again examined by the police.
18. On 18 February 1990 the applicant was brought before the public
prosecutor who instituted criminal proceedings against him for forgery
and various drug-related offences.
19. The applicant was subsequently taken to the investigating judge
who read the charges out to him. A report concerning the applicant's
appearance before the investigating judge was drawn up in which it is
indicated that the applicant was assisted by an English-speaking lawyer
acting as interpreter. On 20 February 1990 the applicant appeared
before the investigating judge and gave a statement. A report was drawn
up in which it is indicated that the applicant was assisted by Mr. A,
a lawyer practising in Athens, and by an English-speaking clerk of the
court, acting as interpreter. The investigating judge ordered the
applicant's detention on remand.
20. On 21 June 1991 the applicant appeared together with three others
before the three-member Court of Appeal (trimeles efetio) of Athens,
which was competent to hear the case because of the nature of the
charges involving, inter alia, drug-trafficking and trading. A court-
appointed interpreter was present. The applicant declared that he was
represented by Mr. A who was on strike and asked for an adjournment.
Similar requests were submitted by the applicant's co-accused. The
court decided to adjourn the examination of the case.
21. The applicant re-appeared before the same court on 12 July 1991.
A court-appointed interpreter was present. As the applicant was not
represented by counsel, the court asked Mr. N, who was the lawyer of
one of the applicant's co-defendants, to act on the applicant's behalf.
N accepted and, according to the minutes of the hearing, "a short
interval" was ordered to enable him to consult the case-file.
22. The trial was concluded on 16 July 1991 and the applicant was
found guilty of importing and transporting drugs and using forged
documents. He was sentenced to life imprisonment and a fine of
6,000,000 drachmas for the drug-related offences and to eight months
imprisonment for using forged documents. The applicant appealed.
23. The applicant's appeal was heard by the five-member Court of
Appeal of Athens on 18 March 1993. He was again assisted by a court-
appointed interpreter and Mr. E.L., a lawyer made available to him by
a humanitarian organisation. The court upheld the applicant's
conviction, but reduced his sentence to twelve years and three months
imprisonment and to a fine of 5,000,000 drachmas. The decision of the
court was published on the day of the hearing and finalised
(katharographi) on 4 May 1993.
24. On 26 March 1993 the applicant lodged with the prison authorities
an appeal in cassation. He filled in a standard form. Under the heading
"grounds of appeal", the applicant mentioned that these would be set
forth in a memorial to be submitted by his counsel. Under the heading
"lawyer to whom notifications should be made" (antiklitos) the
applicant mentioned Mr. P, a lawyer residing in Athens.
25. On 8 June 1993 the applicant addressed via the prison authorities
a petition to the Public Prosecutor of the Court of Cassation (Arios
Pagos) inquiring whether legal aid counsel could be appointed to assist
him in the preparation of his appeal. The prison authorities
acknowledged receipt of the petition.
26. On 12 July 1993 the Court of Cassation rejected the applicant's
appeal in cassation as inadmissible on the ground that he had not
submitted any grounds of appeal.
27. On 4 April 1994 the applicant addressed a second petition to the
Public Prosecutor of the Court of Cassation referring to his financial
situation and inquiring about any developments in his case. The prison
authorities acknowledged receipt.
28. On 27 April 1994 the applicant was informed by the prison
authorities that his appeal had been rejected.
29. In a letter dated 23 February 1995 and addressed to the
Government's Agent, the Deputy Public Prosecutor of the Court of
Cassation stated that he had not been able to trace any petition
addressed by the applicant to either the President or the Public
Prosecutor of the Court of Cassation asking for legal aid. He further
submitted that the courts were under no legal obligation to appoint
legal aid counsel for accused persons who appealed in cassation.
Neither was any other public authority. As a result, even if the
applicant had submitted a petition for legal aid, the authorities of
the Court of Cassation would have been under no obligation to reply.
B. Relevant domestic law
30. Article 340 para. 1 of the Code of Criminal Procedure provides
that in the cases of the most serious crimes (kakuryimata) the
president of the first instance court is under an obligation to appoint
counsel for the accused who is not represented. Counsel is chosen from
a list of lawyers drawn up by the local Bar in January each year.
Article 376 of the Code of Criminal Procedure provides that in the
cases of the most serious crimes the president of the appeal court has
to appoint counsel for the accused who is not represented, upon the
latter's request. As for the rest, Article 340 para. 1 applies mutatis
mutandis.
31. Article 473 paras. 1 and 3 of the Code of Criminal Procedure
provides that persons who appeal in cassation must lodge their appeal
within ten 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 for a
further twenty-day time-limit within which accused persons may appeal
in cassation against their convictions by making a declaration to this
effect to the Public Prosecutor of the Court of Cassation.
32. Article 510 of the Code of Criminal Procedure contains an
exhaustive enumeration of the grounds for appealing in cassation. These
include a number of procedural irregularities and the wrong
interpretation or application of substantive criminal law. In
accordance with Articles 476 para. 1 and 513 para. 1 of the Code of
Criminal Procedure, as interpreted by the Court of Cassation, an appeal
in cassation which does not contain any grounds is inadmissible (Court
of Cassation decisions No. 1438/86, Pinika Hronika vol. 37 p. 170,
No. 73/87, Pinika Hronika vol. 37 p. 314, and No. 182/87, Pinika
Hronika vol. 37 p. 605).
33. In accordance with Article 509 para. 2 of the Code of Criminal
Procedure, 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 Nos. 242/1951, 341/1952, 248/1958, 472/1970, 892/1974,
758/1979, Nomiko Vima 1980 p. 56, 647/1983, 1438/1986 and 1453/87,
Pinika Hronika vol. 38 p. 191). Notwithstanding this case-law, an
accused person may use the time-limit of Article 473 para. 2 of the
Code to supplement an appeal in cassation lodged before one of the
authorities mentioned in Article 474 of the Code, "when the latter does
not contain any sufficiently substantiated grounds of appeal".
34. Under Article 513 para. 3 of the Code of Criminal Procedure the
parties to an appeal in cassation must be represented by counsel at the
hearing before the Court of Cassation. The Court of Cassation has held
that the Code of Criminal Procedure does not provide for legal aid for
appeals in cassation and that Article 6 para. 3 (c) of the Convention
does not apply in the proceedings before the Court of Cassation, as
these do not involve the determination of a criminal charge (Court of
Cassation decisions No. 381/1982, Pinika Hronika vol. 32 p. 928,
No. 724/1992, Pinika Hronika vol. 32 p. 656, and No. 1368/92).
35. In accordance with Article 546 para. 2 of the Code of Criminal
Procedure, a conviction becomes final when there is no appeal against
the relevant decision, or when the accused has not availed himself of
the possibility of appealing, or when the accused has appealed within
the time-limit provided by law and his appeal has been rejected.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
36. The Commission has declared admissible the applicant's complaints
that he was not notified of the charges in a language he could
understand when he was arrested, that he was not assisted by an
interpreter when he was first examined by the police, the public
prosecutor and the investigating judge, that the lawyer assigned to him
by the first instance court did not have adequate time and facilities
for the preparation of his defence and that he was not granted legal
aid for the preparation and hearing of his appeal in cassation.
B. Points at issue
37. The issues to be determined are
- whether there has been a violation of Article 6 paras. 1 and
3 (c) (Art. 6-1, 6-3-c) of the Convention as a result of the
unavailability of legal aid for the applicant's appeal in cassation,
- whether there has been a violation of Article 6 paras. 1 and
3 (b) (Art. 6-1, 6-3-b) of the Convention in that the lawyer assigned
to the applicant by the first instance court did not have adequate time
and facilities for the preparation of his defence,
- whether there has been a violation of Article 6 paras. 1 and
3 (e) (Art. 6-1, 6-3-e) of the Convention in that the applicant was not
assisted by an interpreter when he was first examined by the police,
the public prosecutor and the investigating judge and
- whether there has been a violation of Article 5 para. 2
(Art. 5-2) of the Convention in that the applicant was not notified of
the charges in a language he could understand when he was arrested.
C. As regards Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the
Convention
38. Article 6 (Art. 6) of the Convention provides as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.
3. Everyone charged with a criminal offence has the following
minimum rights:
...
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."
39. The applicant complains that, although he was indigent and the
interests of justice required that he should be legally represented,
he was not granted legal aid for his appeal in cassation. That he did
not have sufficient means to obtain legal assistance for the
preparation and presentation of his appeal in cassation transpires from
the following facts. The applicant was arrested three months after he
had been released from prison and during that period of time he had
been unemployed. No money was found in his possession. Before the first
instance court he was represented by counsel appointed by the court and
before the court of appeal by counsel made available to him by a
humanitarian organisation. The applicant does not question the fact
that the name of Mr. P appeared under the heading "person to whom
notifications should be made" (antiklitos) on the appeal form which the
applicant submitted on 26 March 1993. However, Mr. P was not the
applicant's authorised representative before the Court of Cassation.
He was simply a lawyer who used to visit the prison where the applicant
was being detained. The applicant mentioned his name on the form at
random after he had been told by the prison staff that it was a
necessary formality to mention - for notification purposes - a lawyer's
name on the form, even if that lawyer was not going to act in the case.
Finally, the applicant stresses that the Commission was satisfied that
he was indigent when it granted him legal aid for the presentation of
his application.
40. The applicant further submits that the interests of justice
required that he should be represented by counsel when appealing in
cassation. Under Greek law the applicant had to be so represented at
the hearing before the Court of Cassation. Although no grounds of
appeal were mentioned on the form he submitted on 26 March 1993,
counsel could have lodged an additional memorial with grounds of appeal
which the Court of Cassation could examine ex officio. Moreover, he
could lodge a new appeal within the time-limit provided under
Article 473 of the Code of Criminal Procedure which started running
from the notification of the finalised judgment to the applicant. There
was at least one valid ground of appeal which counsel could have
raised: the applicant was represented at first instance by Mr. N who
was also the lawyer of Mr. V. However, according to the case-law of the
Court of Cassation and legal theory, the appointment of the same lawyer
as counsel to accused persons with conflicting interests renders the
proceedings null and void.
41. The Government argue that the applicant was not indigent, because
he was represented by counsel of his own choice at the pre-trial stage
as well as before the first instance court and the court of appeal.
Furthermore, he was involved for a long period of time in drug-
trafficking. In any event, the applicant, when lodging his appeal, was
represented by a lawyer of his own choice, Mr. P, the name of whom he
had mentioned on the appeal form.
42. The Government further argue that the appointment of counsel was
not necessary in the interests of justice because the applicant's
appeal was bound to fail, since the memorial he lodged on 26 March 1993
did not contain any grounds of appeal. The applicant was debarred under
Greek law from raising additional grounds at a later stage.
43. The Commission recalls that the guarantees in paragraph 3 of
Article 6 (Art. 6-3) are specific aspects of the right to a fair trial
in criminal proceedings stated in paragraph 1 (Eur. Court HR, Granger
v. United Kingdom judgment of 28 March 1990, Series A no. 174, p. 17,
para. 43). As a result, the Commission considers it appropriate to
examine the applicant complaints from the angle of paragraphs 3 (c)
and 1 taken together.
44. The Commission also recalls that Article 6 para. 1 (Art. 6-1) of
the Convention does not compel States to set up courts of appeal in
cassation. Nevertheless, a State which does institute such courts is
required to ensure that persons amenable to the law shall enjoy before
these courts the fundamental guarantees contained in Article 6 (Art. 6)
(Eur. Court HR, Delcourt v. Belgium judgment of 17 January 1970, Series
A no. 11, p. 14, para. 25). In the Convention system the right of a
person charged with a criminal offence to free legal assistance is one
element, amongst others, of the concept of a fair trial in criminal
proceedings. Sub-paragraph (c) of Article 6 para. 3 (Art. 6-3-c)
attaches two conditions to this right: that the person concerned has
not sufficient means to pay for a defence lawyer and that "the
interests of justice" require that he should be legally represented
(Eur. Court HR, Pham Hoang v. France judgment of 25 September 1992,
Series A no. 243, p. 23, para. 39). The Commission further recalls that
the Court has recognised that in certain cases indigent accused persons
who have no legal training must, if they wish to appeal in cassation,
have the benefit of free legal assistance in presenting and developing
the appropriate arguments on complex issues (see above-mentioned Pham
Hoang judgment, p. 23, para. 40).
45. The Commission also notes the importance of the appeal in
cassation in the Greek criminal justice system, this being a remedy
intended to ensure that substantive criminal law has been correctly
interpreted and applied in a particular case and that the procedural
rights of the accused have been respected (see para. 32). Moreover, in
the vast majority of cases this is the last remedy to which an accused
person may have resort before his conviction and sentence become final
(see para. 35). Finally, lodging and presenting an appeal in cassation
is a highly technical matter. This is the reason why the Code of
Criminal Procedure requires that the appellant must be represented by
counsel at the hearing before the Court of Cassation (see para. 34).
46. The Commission recalls that on 26 March 1993 the applicant
announced to the prison authorities his wish to appeal in cassation.
He filled out a standard appeal form which he deposited on the same
day. At the time, the applicant was clearly no longer represented by
the lawyer who had been instructed by the humanitarian organisation to
represent him before the appeal court. The Commission considers that
he was not represented by Mr. P either. Although the applicant
mentioned the name of Mr. P on the standard appeal form, he did so
under the heading "person to whom notifications should be made". In the
Commission's view and contrary to what the Government contend, this
cannot be equated with designation as legal counsel. Moreover, Mr. P
was different from the various lawyers who had until then been involved
in the applicant's case and no evidence has been submitted that he ever
accepted to act on the applicant's behalf.
47. The question which must be, therefore, examined is whether the
applicant was entitled under Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention to free legal assistance for the purposes of his appeal in
cassation. The Commission will first determine whether the applicant
had "sufficient means" within the meaning of that provision. The
Commission notes that the question of the applicant's means at the
material time was never examined by the Greek authorities. According
to Greek law, in a serious criminal case, such as the applicant's one,
the first instance court had to appoint counsel for an accused who was
not represented whatever his or her means might have been. The appeal
court did not have to examine the question of the applicant's means
either, because the applicant appeared before it assisted by counsel
provided by a humanitarian organisation. The Public Prosecutor of the
Court of Cassation to whom the applicant applied for legal aid did not
examine his request for the reasons stated in the letter his deputy
addressed to the Agent of the Greek Government on 23 February 1995.
48. As a result, the Commission like the European Court of Human
Rights in the Pakelli case (Eur. Court HR, Pakelli v. Germany judgment
of 25 April 1983, Series A no. 64) is faced with the difficult task of
having to determine a largely factual issue for the first time more
than three years after the end of the domestic proceedings. The
Commission will have to determine the issue on the basis of all
available indications, without requiring proof beyond reasonable doubt
that the applicant was indigent at the material time (see above-
mentioned Pakelli judgment, p. 16, para. 34).
49. The Commission notes that there are a number of indications that
the applicant was indeed in need of legal aid when he lodged his appeal
in cassation, as stated by him in the petition which he addressed to
the Public Prosecutor of the Court of Cassation on 8 June 1993. Thus,
the applicant was represented before the first instance court by court-
appointed counsel and before the appeal court by a lawyer made
available to him by a humanitarian organisation. Moreover, when
appealing in cassation, the applicant had already spent more than three
years in jail. Finally, the Commission itself decided to grant the
applicant legal aid for the presentation of his case before it.
50. In addition, the Commission finds no clear indications pointing
in the other direction. The fact that a lawyer who had not been
appointed by the courts entered one appearance on behalf of the
applicant before the investigating judge at the early stages of the
investigation cannot constitute persuasive evidence that the applicant
had at the time sufficient means to pay for his legal defence. Neither
can the Commission draw any broad conclusions, as it is invited to do
by the Government, from the applicant's previous criminal record.
51. Given the various indications that the applicant had no
sufficient means when lodging his appeal in cassation and in the
absence of any clear indications to the contrary, the Commission
regards the first of the two conditions of Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention as satisfied.
52. The Commission will then examine whether the "interests of
justice" required that the applicant should be legally represented. The
Commission has taken note of the assurances offered by the applicant's
lawyer that, although no valid grounds of appeal were mentioned on the
form submitted on 26 March 1993, this did not entail, as the Government
contend, that the applicant was debarred from lodging a formally
admissible appeal in cassation. The applicant's lawyer argues that
court-appointed counsel could have lodged an additional memorial with
grounds of appeal which the Court of Cassation could examine ex officio
or a new appeal within the time-limit of Article 473 para. 3 of the
Code of Criminal Procedure. The Commission also notes that the
Government have not attempted to provide a detailed answer to this
argumentation.
53. In any event, the Commission does not consider it necessary to
establish to what extent the applicant's failure to mention grounds of
appeal in the form he submitted without legal assistance on
26 March 1993 might have prejudiced his chances of submitting a
formally admissible appeal with the assistance of counsel at a later
stage. In this connection, the Commission recalls that, when the
applicant first manifested his wish to lodge an appeal in cassation,
the possibility of lodging a formally admissible appeal was not a
priori excluded because the time-limit prescribed by law had not
expired (see paras. 24 and 31). Moreover, the applicant was a layman
and a foreigner who was apparently not familiar with the rules of Greek
criminal procedure. As a result, he could not be expected to know which
grounds of appeal, if any, he could raise and when.
54. The Commission further notes that these grounds of appeal could
have been based either on the alleged violation of the applicant's
Convention rights or on other alleged procedural irregularities
constituting violations of national law, such as that suggested by his
representative before the Commission (see para. 40). It also notes that
the applicant had received on appeal a sentence of twelve years and
three months' imprisonment. In these circumstances, the Commission
considers that "the interests of justice" required that the applicant
should receive timely, independent, professional advice on how to
proceed with his intended appeal in cassation. As a result, the
Commission considers that the second of the two conditions of Article 6
para. 3 (c) (Art. 6-3-c) of the Convention was also satisfied in the
applicant's case.
55. However, the Commission notes that under Greek law no legal aid
is available to accused persons who wish to appeal to the Court of
Cassation. So much is expressly accepted by the Deputy Public
Prosecutor of the Court of Cassation in the letter he addressed to the
Government's Agent on 23 February 1995 (see para. 29) and in which he
stated that applications by accused persons for legal aid for appealing
to the Court of Cassation did not even call for a reply. Moreover,
support for the Deputy Public Prosecutor's position as to the
unavailability of legal aid can be found in the case-law of the Court
of Cassation (see para. 34).
56. It is, therefore, clear that it was impossible for the applicant
to obtain legal aid for his appeal in cassation. However, the applicant
did not have sufficient means and the interests of justice required
that he should receive professional advice in connection with his
intended appeal. It follows that there was a violation of Article 6
paras. 1 and 3 (c) (Art. 6-1, 6-3-c) of the Convention.
CONCLUSION
57. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 of the Convention taken
together with para. 3 (c) (Art. 6-1+6-3-c) of that provision.
D. As regards Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the
Convention
58. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides as
follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence."
59. The Commission recalls that at the admissibility stage the
Government argued that the Commission was not competent to examine the
applicant's complaints that the lawyer whom the first instance court
had assigned to him did not have adequate time and facilities for the
preparation of his defence, because the applicant had not raised them
before the Court of Cassation. The Commission also recalls that, in its
admissibility decision of 26 February 1996, it considered that, in the
circumstances of the case, given in particular the non-availability of
legal aid in cassation proceedings, the issue concerning exhaustion of
domestic remedies was related to the substance of the applicant's
complaints. The Commission has now concluded that the unavailability
of legal assistance for the applicant's appeal in cassation constituted
a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
In these circumstances, the Commission considers that it is not
precluded under Article 26 (Art. 26) of the Convention from examining
the merits of the applicant's complaints.
60. The applicant submits that the lawyer assigned to him by the
first instance court, Mr. N, did not have adequate time and facilities
for the preparation of his defence. The applicant claims that initially
N objected to his being appointed applicant's counsel. However, he
accepted to represent the applicant when the president of the court
drew his attention to the fact that, should the hearing be adjourned,
the applicant would have to be provisionally released, given the
statutory prohibition of holding an accused person on remand for more
than 18 months. The applicant claims that N was given less than an hour
to consult the case-file. He also submits that the decision which the
first instance court reached without giving him all his fair trial
rights had a prejudicial impact on the subsequent proceedings.
According to the applicant "it is reasonable to think that an accused
with a previous sentence of drug-related offences who arrives at the
Court of Appeal with a sentence to life has not many chances to be
totally acquitted".
61. The Government argue that the first instance court could not
afford to adjourn the trial further, because of the statutory limits
on pre-trial detention. The time put at the disposal of Mr. N was
sufficient, because N was largely familiar with the case, being the
representative of one of the applicant's co-accused.
62. Given the link between the right to a fair trial in Article 6
para. 1 (Art. 6-1) of the Convention and the more specific guarantees
of Article 6 para. 3, the Commission considers it appropriate to
examine the applicant's complaints from the angle of paragraphs 3 (b)
and 1 (Art. 6-3+6-1-3-b) taken together. The Commission notes that the
charges against the applicant were re-examined in full by the court of
appeal before which he was represented by a different lawyer. Although
the applicant claims that his first instance conviction had a
prejudicial impact on the subsequent proceedings, he does not complain
that his lawyer was in any manner prevented from representing him
effectively at the appeal hearing. It follows that the applicant had
adequate time and facilities for the preparation of his defence and
that his right to a fair trial was not violated in this respect (see,
mutatis mutandis, No. 7628/76, Dec. 9.5.77, D.R. 9 p. 169).
CONCLUSION
63. The Commission concludes, by 24 votes to 6, that in the present
case there has been no violation of Article 6 para. 1 of the Convention
taken together with para. 3 (b) (Art. 6-1+6-3-b) of that provision.
E. As regards Article 6 paras. 1 and 3 (e) (Art. 6-1, 6-3-e) of the
Convention
64. Article 6 para. 3 (e) (Art. 6-3-e) of the Convention provides as
follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
65. The Commission recalls that at the admissibility stage the
Government argued that the Commission was not competent to examine the
applicant's complaints concerning assistance by an interpreter when he
was first examined by the police, the public prosecutor and the
investigating judge, the only reason given being that the applicant had
not raised these complaints before the Court of Cassation. In its
admissibility decision the Commission considered that the issue was
related to the substance of the applicant's complaints. The Commission
has now concluded that the unavailability of legal assistance for the
applicant's appeal in cassation constituted a violation of Article 6
para. 3 (c) (Art. 6-3-c) of the Convention. As a result, it may examine
the merits of the applicant's complaints.
66. The applicant complains that no interpreter was made available
to him during his examination by the police, that he was forced to sign
some documents which he could not understand and that a police officer
who did not speak English, by the name of K.P., signed the documents
instead of a translator. He also claims that, when he was brought
before the public prosecutor, he was assisted by an interpreter who
spoke very little English and showed no interest. Finally, he claims
that no interpreter was made available to him when he appeared before
the investigating judge on 20 February 1990.
67. The Government submit that, when the applicant was first examined
by the police on 16 February 1990, he was assisted by Mr. H.L., an
English-speaking police officer, as mentioned in the relevant report.
They also claim that the same police officer assisted the applicant
when he was examined by the police for the second time on
17 February 1990. The Government further submit that an interpreter was
made available to the applicant when he appeared before the
investigating judge on 18 February 1990 and 20 February 1990. They
refer to the relevant reports.
68. The Commission considers that it should examine the applicant's
complaints from the angle of paragraphs 3 (e) and 1 of Article 6
(Art. 6-3-e+6-1) of the Convention taken together. Moreover, the
Commission recalls that, according to the case-law of the Court, the
right, stated in paragraph 3 (e) of Article 6 (Art. 6-3-e), to the free
assistance of an interpreter applies not only to oral statements made
at the trial hearing but also to documentary material and the pre-trial
proceedings. Paragraph 3 (e) signifies that a person "charged with a
criminal offence" who cannot understand or speak the language used in
court has the right to the free assistance of an interpreter for the
translation of all those documents or statements in the proceedings
instituted against him which it is necessary for him to understand or
to have rendered in the court's language in order to have the benefit
of a fair trial. According to the same case-law, the obligation of the
competent authorities is not limited to the appointment of an
interpreter but, if they are put on notice in the particular
circumstances, may also extend to a degree of subsequent control over
the adequacy of the interpretation provided (see Eur. Court HR,
Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168,
p. 35, para. 74).
69. The Commission notes that the parties do not dispute that the
applicant needed the assistance of an interpreter in his contacts with
the Greek authorities and that the applicant's command of the English
language at the time of his arrest was sufficient to enable him to
communicate with these authorities through interpreters translating
from English to Greek and vice versa.
70. The Commission has examined the police report concerning the
applicant's examination on 16 February 1990, the day of his arrest. The
Commission has no reason to doubt the authenticity of this report. The
report provides a number of details concerning the applicant's
movements after he was released from prison on 3 November 1989 which
could not have been known to the police. Moreover, it does not
implicate the applicant in drug-trafficking. The report states that all
the questions put to the applicant and all the answers provided by the
latter were translated from Greek into English and vice versa.
Furthermore, the report was signed by a police officer who acted as
interpreter. In the light of all the above, the Commission considers
that the applicant has not substantiated his allegations that he was
not assisted by an interpreter during his examination by the police on
16 February 1990.
71. The Commission further notes that the applicant himself accepts
that, when he appeared before the public prosecutor on
18 February 1990, he was assisted by an interpreter. Although the
applicant claims that the interpreter "spoke very little English and
showed no interest", the Commission notes that the applicant does not
claim to have taken any steps towards complaining to the prosecutor
about the alleged inadequacy of the interpretation.
72. The Commission also notes that the Government have submitted
copies of the reports concerning the applicant's appearance before the
investigating judge on 18 February 1990 and 20 February 1990 in which
it is stated that the applicant was assisted by an English-speaking
interpreter. The Commission has no reason to doubt the authenticity of
these reports and, as a result, it considers that the applicant has not
substantiated his allegations that he was not assisted by interpreters
when he appeared before the investigating judge on 20 February 1990.
73. Finally, the Commission notes that no documentary evidence has
been submitted by the parties concerning the applicant's examination
by the police on 17 February 1990. However, it notes that the
Government claim that the applicant was assisted by the same English-
speaking police officer who had assisted him during his first
examination by the police on the previous day. Although the applicant
disputes this, the Commission is reluctant to attach any particular
weight to his claim given its previous findings on the applicant's
failure to substantiate similar allegations concerning his other
appearances before the Greek police and judicial authorities.
74. In the light of all the above, the Commission considers that
there was no violation of the applicant's right to the free assistance
of an interpreter for the translation of all those documents or
statements in the proceedings instituted against him which it was
necessary for him to understand or to have rendered in the court's
language in order to have the benefit of a fair trial.
CONCLUSION
75. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 of the Convention
taken together with para. 3 (e) (Art. 6-1, 6-3-e) of that provision.
F. As regards Article 5 para. 2 (Art. 5-2) of the Convention
76. Article 5 para. 2 (Art. 5-2) of the Convention provides as
follows:
"Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him."
77. The Commission recalls that at the admissibility stage the
Government argued that the Commission was not competent to examine the
applicant's complaints under Article 5 para. 2 (Art. 5-2) on the sole
basis that the applicant had not raised them before the Court of
Cassation and that this objection was not disposed of in the
Commission's admissibility decision. The Commission now considers that
it can examine the merits of the applicant's complaints for the reasons
stated above in paragraph 65 of this report.
78. The applicant submits that he was not notified of the charges in
a language he could understand when he was arrested. The Government
argue that the applicant was informed of the charges when he was first
examined by the police on the day of his arrest. An interpreter was
present who assisted the applicant throughout the interrogation. The
Government also submit that this interpreter orally translated to the
applicant the report of his arrest. They do not specify, however,
whether this happened during the applicant's first examination by the
police on 16 February 1990 or on 17 February 1990.
79. The Commission has found that the applicant has not substantiated
his allegations that he was not assisted by an interpreter during his
examination by the police on 16 February 1990. The Commission also
notes that, during his examination by the police on that day, the
applicant was asked about the forged passport which had been found in
his possession and that he provided extensive explanations on this
matter. The Commission, therefore, considers that the reasons for the
applicant's arrest were sufficiently brought to his attention during
his interview on the day of his arrest (see, mutatis mutandis, Eur.
Court HR, Murray v. the United Kingdom judgment of 28 October 1994,
Series A no. 300, pp. 32 and 33, para. 77). It follows that the
applicant was informed promptly, in a language which he understood, of
the reasons for his arrest, in accordance with Article 5 para. 2
(Art. 5-2) of the Convention.
CONCLUSION
80. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 5 para. 2 (Art. 5-2) of the
Convention.
G. Recapitulation
81. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 of the Convention taken
together with para. 3 (c) (Art. 6-1+6-3-c) of that provision (see
para. 57).
82. The Commission concludes, by 24 votes to 6, that in the present
case there has been no violation of Article 6 para. 1 of the Convention
taken together with para. 3 (b) (Art. 6-1+6-3-b) of that provision (see
para. 63).
83. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 of the Convention
taken together with para. 3 (e) (Art. 6-1+6-3-e) of that provision (see
para. 75).
84. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 5 para. 2 (Art. 5-2) of the
Convention (see para. 80).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
PARTLY DISSENTING OPINION OF MR. S. TRECHSEL, MRS. J. LIDDY
AND MM. B. MARXER, N. BRATZA, G. RESS AND K. HERNDL
We have voted against the conclusion in para. 63 because we are
of the opinion that the Commission also ought to have found a violation
of Article 6 para. 1 and para. 3 (b) and (c) combined. In our view it
cannot be argued that half an hour is enough time for a lawyer to
prepare the defence, even if the case is not entirely new to him. We
cannot, therefore, agree with the conclusion that such a serious denial
of the right to an effective defence can be cured on appeal.
Full & Egal Universal Law Academy