CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)