CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1996

.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                         Application No. 24294/94                       by Mosses TWALIB                       against Greece         The European Commission of Human Rights sitting in private on 26 February 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 6 April 1993 by Mosses TWALIB against Greece and registered on 7 June 1994 under file No. 24294/94;         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 13 January 1995 to communicate the       application;   -      the observations submitted by the respondent Government on       9 May 1995 and the observations in reply submitted by the applicant       on 25 June 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Tanzanian national, born in 1957 in Tanzania and currently held in a prison in Greece.         The facts of the case, as they have been submitted by the parties, may be summarised as follows:   a)     Particular circumstances of the case         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.         On 16 February 1990 the applicant was arrested in Piraeus for drug- trafficking. He was transported to Athens where he was examined by the police. 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. On 17 February 1990 the applicant was again examined by the police. The Government claim that he was assisted by the same police officer. They also claim that the above-mentioned police officer orally translated to the applicant the report on his arrest.         The applicant claims that no translator 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.         On 18 February 1990 the applicant was brought before the Public Prosecutor who instituted criminal proceedings against him. The applicant claims that he was assisted by an interpreter who, however, spoke very little English and showed no interest.         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 applicant, however, claims that no translator was made available to him on that last occasion. The investigating judge ordered the applicant's detention on remand.         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 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.         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. The applicant claims that N initially refused. Eventually, N accepted to represent the applicant, when the president of the court warned N 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. In accordance with the minutes of the hearing, "a short interval" was ordered to enable the court-appointed counsel to consult the case-file. The applicant claims that the interval lasted less than an hour.         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.         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. The applicant   claims that E.L. was 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.         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 will be set forth in a memorial to be submitted by his counsel. Under the heading "lawyer to whom notifications should be made" the applicant mentioned Mr. P, a lawyer residing in Athens.         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.         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 ground of appeal.         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.         On 27 April 1994 the applicant was informed by the prison authorities that his appeal had been rejected.         In a letter of 23 February 1995 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   1.     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.   2.     Article 510 of the Code of Criminal Procedure contains an exhaustive enumeration of the grounds for appealing in cassation. 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).   3.     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).   4.     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).   COMPLAINTS   1.     The applicant complains that, when arrested, he was not notified of the charges in a language he could understand, in breach of Article 5 para. 2 of the Convention.   2. The applicant further complains that the requirements of Article 6 of the Convention were not respected in the criminal proceedings against him. More in particular, he was not assisted by an interpreter when he was first examined by the police, the Public Prosecutor and the investigating judge. The lawyer assigned to him by the first instance court shortly before the hearing did not have adequate time and facilities for the preparation of his defence in breach of Article 6 para. 3 (b) of the Convention. Finally, he was not granted legal aid for the preparation and hearing of his appeal in cassation in accordance with Article 6 para. 3 (c) of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on   6 April 1993 and registered on 7 June 1994.         On 13 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 9 May 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 25 June 1995.         On 26 May 1995 the Commission granted the applicant legal aid.   THE LAW         The applicant complains of a violation of Articles 5 para. 2 and 6 (Art. 5-2, 6) of the Convention because he was not informed of the reasons for his arrest in a language he could understand, he was not assisted by an interpreter in the course of various examinations at the pre-trial stage, he did not have adequate time and facilities for the preparation of his defence at first instance and he was not granted legal aid for his appeal in cassation.         The Commission considers that the applicant's complaints must be examined under Articles 5 para. 2 and 6 paras. 1 and 3 (b) (c) and (d), (Art. 5-2, 6-1, 6-3-b, 6-3-c, 6-3-d) which, insofar as relevant, provide as follows:         Article 5 para. 2 (Art. 5-2) of the Convention         "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."         Article 6 (Art. 6) of the Convention         "1.   In the determination of .... any criminal charge against him,       everyone is entitled to a fair .... 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."         The Government submit that the applicant has not exhausted domestic remedies, because he did not raise his complaints in his appeal in cassation. The fact that the applicant was not granted legal aid for his appeal in cassation does not excuse him for not exhausting domestic remedies for the following reasons. First, the applicant did not apply for legal aid. Secondly, as it emerges from the appeal form which the applicant completed in the Patras prison on 26 March 1993, the applicant was represented at the time by counsel, Mr. P. Thirdly, the applicant's financial situation did not warrant the granting of legal aid. The applicant, who had been involved for a long period of time in drug trafficking, was represented by counsel of his choice at the pre-trial and main trial stage. Finally, the appointment of counsel was not necessary in the interests of justice, since the applicant's appeal was bound to fail on the ground that it did not contain any grounds. Moreover, the applicant had no possibility under domestic law of lodging an additional memorial with his grounds of appeal.         As regards the substance of the applicant's first complaint the Government submit that the applicant was assisted by an interpreter at all the stages of the proceedings. As regards the second complaint, they stress that the applicant declared that he was represented by Mr. A when he appeared for the first time before the trial court. Moreover, the applicant did not notify the court of any changes concerning his representation, by applying three days before the hearing for the appointment of legal aid counsel. The court was left with no other option than to appoint counsel at the hearing, which could not be adjourned again. Court-appointed counsel had sufficient time to prepare the applicant's defence during the interval, because he was already familiar with the case. In any event, Mr. E.L., who represented the applicant at the appeal, had every possibility of preparing his defence.         The applicant submits that neither Mr. N nor Mr. E.L. showed any interest in his case after the rejection of his first appeal because of his financial situation. When lodging his appeal in cassation he was told by the prison wardens that he had to write a lawyer's name on the form as a matter of formality, even if that lawyer would not represent him eventually before the Court of Cassation. He mentioned Mr. P, a lawyer who used to visit Patras prison, because his was the only name he could think of. Mr. P was not aware of this fact, nor had he ever accepted to represent the applicant.         As regards the substance of his complaints, the applicant disputes the Government's version of events regarding the presence of interpreters when he was examined by the police and the investigating judge on 20 February 1990. He also submits that, although N was familiar with the case, he was only given less than an hour in which to prepare to defend him against very serious charges. He also disputes that he was a drug dealer.         The Commission considers 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 is related to the substance of the applicant's complaints. In the light of the parties' observations, the Commission considers that these complaints raise 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 to the Commission        President of the Commission       (H.C. KRÜGER)                     (S. TRECHSEL)