Lexploria

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)

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TWALIB v. GREECE

TWALIB v. GREECE

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