CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 avril 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left }   Communicated on 24 April 2017   FIRST SECTION Application no. 68747/11 Georgios ZACHOULIS and Antonios ZACHOULIS against Greece lodged on 4 October 2011 STATEMENT OF FACTS The applicants, Mr Georgios Zachoulis and Mr Antonios Zachoulis, are Greek nationals who were born in 1945 and 1949 respectively and live in Stuttgart. They are represented before the Court by Mr A. Zachariadis, a lawyer practising in Thessaloniki. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 7   February 2008 a mixed court of judges and jurors at the Giannitsa criminal court of first instance ( Μικτό Ορκωτό Δικαστήριο ) found Mr D. T. guilty of intentional homicide, burglary and two other offences related to drugs. The applicants, being the sons of the murder victim, had joined the proceedings as civil parties, claiming a specific amount in damages. The court, finding under Articles 83 and 84 § 2 (d) of the Criminal Code that there were extenuating circumstances and, in particular, that Mr D.T. had expressed sincere regret, sentenced him to eighteen years and one month in jail (decision no. 4-7/2008). A breakdown of the sentence shows that Mr   D.T. was sentenced to fifteen years’   imprisonment for intentional homicide and to five years for the burglary (the two sentences were merged into a total term of eighteen years and one month). On 11   February 2008 the applicants asked the public prosecutor attached to the Giannitsa Court of First Instance to appeal against the decision on the grounds that the court should not have found any extenuating circumstances and should have imposed the maximum sentence. Even given extenuating circumstances, the first-instance court should have made a proper evaluation of the seriousness of Mr D.T’s offences and his character, as required by Article 79 of the Criminal Code, which meant that it should have imposed a heavier sentence. The only part of the decision the applicants could appeal against concerned the compensation they had been awarded, in accordance with Article 488 of the Code of Criminal Procedure. On 15   February 2008 the public prosecutor appealed against the decision on the above-mentioned grounds. Mr D.T. also appealed. On 17   March 2011 a mixed court of judges and jurors at the Thessaloniki Court of Appeal ( Μικτό Ορκωτό Εφετείο ) held a hearing in the case. The applicants participated again as civil parties. The court dismissed the public prosecutor’s appeal as inadmissible on the grounds that it had not been lodged in accordance with the procedural rules of Article 474 § 1 of the Code of Criminal Procedure. In particular, it held the following: “... Moreover, the appeal by the public prosecutor attached to the Giannitsa court of first instance dated 15   February   2008 shall be dismissed as inadmissible as, pursuant to Article 474 § 1 of the Code of Criminal Procedure, the legal remedy in question must be lodged by a declaration to the registrar of the court that issued the decision ... and a report is drafted for that declaration and signed by the person submitting it or his representative (Article 465 § 1) and by the person who accepts it. It is clear from that provision that it is not permitted to apply for a legal remedy in any other way, with the exception of the case set out in Article 473 § 2 of the Code of Criminal Procedure, otherwise the legal remedy shall be dismissed. According to well-established jurisprudence it is inadmissible to apply for a legal remedy by a separate document, which cannot be considered as a ‘declaration’ even if it has been numbered and signed by the registrar (see decisions no. 1163/2002, no. 1196/2002, 1061-1654/2000 of the Court of Cassation) ... Turning to the present case, the public prosecutor at the Giannitsa court of first instance appealed against decision no.   4 ‑ 7/2008 of the mixed court of judges and jurors of the criminal court of first instance of Giannitsa by a separate document dated 15   February   2008, which was signed by the registrar, but for which no report was drafted, such a report having to include a declaration by the above-mentioned public prosecutor regarding the lodging of the appeal and the signatures of both the public prosecutor who lodged the appeal and the registrar who accepted it. Based on the above, this appeal must be dismissed as inadmissible. The mixed court of judges and jurors of the Thessaloniki Court of Appeal upheld the first-instance court’s decision and sentenced the applicant to eighteen years and twenty days’ imprisonment. It considered that there were extenuating circumstances under Article 84 § 2 (d) of the Criminal Code (decision 19-23/2011). On 6   April 2011, the applicants asked the public prosecutor of the Court of Cassation ( Άρειος Πάγος ) to lodge an appeal on points of law against the Court of Appeal’s decision, in accordance with Article 505 § 2 of the Code of Criminal Procedure, arguing that the appeal court should not have dismissed the public prosecutor’s original appeal. The applicants, relying on Article 6 of the Convention, argued that the dismissal of the appeal had been excessively formalistic as the document by which the appeal had been lodged had been dated and signed by both the public prosecutor and the registrar. On 11   April 2011, the public prosecutor at the Court of Cassation dismissed the applicants’ application, writing “Rejected” on it and adding his signature. B.     Relevant domestic law The relevant parts of the Greek Criminal Code provide: Article 63 “Persons entitled under the Civil Code to compensation for damage for non-pecuniary harm and restoration of damage may join criminal proceedings as civil parties.” Article 79 “1. When assessing a sentence within the limits prescribed by law, the court shall take into consideration: a) the seriousness of the offence and b) the offender’s character.” Article 84 “1. A more lenient sentence is imposed in accordance with the provisions of the preceding Article where the court considers that there are extenuating circumstances. 2. The following are considered as extenuating circumstances: a)..., b)..., c)..., d) where (the guilty person) has shown sincere regret and has promised to expunge or diminish the consequences of his act ...” The relevant parts of the Code of Criminal Procedure read as follows: Article 139 Reasoning “Decisions, Indictment Division orders and orders by investigating judges and public prosecutors must have full and specific reasoning, while a decision to convict and indictment orders must also give the number of the Article of the applicable legal provision (Article 484 § 1 (d) and (e) and 510 § 1 (d) and (h)). Merely repeating the legal provision is not sufficient reasoning. Reasoning is required for all decisions and orders without exception, regardless of any specific requirement of the law, if they are definitive or interlocutory, or whether the judge had discretionary powers that were free or not subject to review as to whether to issue them.” Article 463 “Remedies may be used solely by persons who are expressly afforded such a right by law ...” Article 468 Use of legal remedies by civil claimants “1. A civil claimant can appeal against a decision using the legal remedy provided for by law: a) where the defendant was convicted (whatever the sentence), he can only appeal in respect of a claim for compensation either awarded or rejected as having no basis in law, b) where the defendant was acquitted, he can only appeal if he has been ordered to pay compensation and legal expenses (Article 71) or if a civil claim has been rejected as having no basis in law, and he can only appeal in respect of those parts.” Article 474 Report and grounds for applying for a legal remedy “1. Without prejudice to Article 473 § 2, an application for a legal remedy is lodged by a declaration to the registrar of the court which issued the decision ... The registrar to whom the application for a legal remedy has been made drafts a report which is signed by the person who has lodged the application for the remedy or his representative (Article 465 § 1) and by the person who accepts it.... 2. The report must include the grounds on which the application for the legal remedy has been lodged...” Article 476 When a legal remedy is inadmissible “1. Where an application for a legal remedy has been lodged by someone not entitled to it or it has been lodged against a decision or order for which the law does not provide a legal remedy, where the time-limit has not been complied with, the formalities required by law have not been observed, where the legal remedy has been lawfully withdrawn, or in any other case where the law provides expressly that the legal remedy is inadmissible, the competent Indictment Division or court (as an Indictment Division) declares the legal remedy inadmissible after hearing the public prosecutor and the parties to the proceedings ... 2. An appeal on points of law is the only way to challenge a decision which dismisses a legal remedy as inadmissible.” Article 488 Appeal against conviction a) By a civil claimant “A civil claimant can appeal against a decision to convict a defendant, but only with respect to the parts of the decision by which his civil action was rejected as having no basis in law or by which he was awarded compensation ...” Article 489 b) By a defendant or public prosecutor “A person who has been convicted and the public prosecutor ... have the right to appeal: ... f) against decisions by a mixed court of judges and jurors of a criminal court of first instance ... which has passed a sentence on a defendant of at least three years’ imprisonment for a crime or at least two years’ imprisonment for a misdemeanour ...” Article 505 Who can lodge an appeal on points of law “1. Except for the case set out in paragraph 3 of the preceding Article, an appeal on points of law can be lodged by: a) defendants, b) ..., c) claimants under a civil action against a conviction, but this can be done only in respect of the part awarding compensation or just satisfaction or if a civil action has been rejected as having no basis in law ... 2. The public prosecutor attached to the Court of Cassation can lodge an appeal on points of law against any decision ...” COMPLAINTS The applicants complain under Article 6 § 1 of the Convention that their right of access to court was violated because the national courts dismissed as inadmissible the appeal lodged at their request by the public prosecutor. Alternatively, they complain under Article 6 § 1 that their right of access to court was violated by the public prosecutor’s failure to observe the procedural requirements set out by law for lodging an appeal. Lastly, they complain under Article 6 § 1 that the decision by the public prosecutor at the Court of Cassation to dismiss their application for an appeal on points of law lacked reasoning.     QUESTIONS TO THE PARTIES 1.     Has there been a breach of the applicants’ right of access to court within the meaning of Article 6 § 1 of the Convention on account of the dismissal of the public prosecutor’s appeal by the Thessaloniki Court of Appeal, composed of judges and jurors ( Μικτό Ορκωτό Εφετείο Θεσσαλονίκης ) and/or of the failure of the public prosecutor at the court of first instance of Giannitsa to observe the legal procedural requirements for lodging an appeal?   2.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in respect of their request to the public prosecutor at the Court of Cassation to appeal on points of law? In particular, was the public prosecutor at the Court of Cassation obliged to provide reasons for his decision and, if so, did he comply with that obligation?