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.