Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24453/94

by Ali TARIGHI WAGEH DASHTI

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 24 October 1995, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 April 1993 by

Ali TARIGHI WAGEH DASHTI against Greece and registered on 22 June 1994

under file No. 24453/94;

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 9 December 1994 to communicate the

application;

- the observations submitted by the respondent Government on

22 February 1995 and the observations in reply submitted by the

applicant on 28 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Iranian citizen born in 1961 in Iran and

currently residing in Iran. In the proceedings before the Commission

he is represented by Mr. S. Katsios, a lawyer practising in

Thessaloniki.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

On 10 November 1989 the applicant was arrested, together with LA,

in H's flat in Athens. The police discovered in the flat drugs, foreign

currency and a number of forged passports. On 11 November 1989 RH was

also arrested in H's flat.

On 12 November 1989 the public prosecutor instituted criminal

proceedings against the applicant, LA and RH and ordered a judicial

investigation. On the same day the applicant and his two co-accused

were brought before the investigating judge who ordered them to re-

appear before him within 48 hours and make an initial statement. On

14 November 1989 they re-appeared before the investigating judge who

placed them in detention on remand.

On 21 November 1989 the investigating judge summoned H to appear

before him and on 28 November 1989 he issued a warrant of arrest

against him.

On 5 December 1989 the investigating judge charged a psychiatrist

with providing an expert opinion. On 15 December the latter was

submitted to the Public Prosecutor's Office.

On 29 December 1989 another expert opinion on the drugs

discovered in H's flat was submitted and the investigation was

concluded. The case-file was sent to the Public Prosecutor's Office.

On 25 January 1990 the case-file was submitted to the Public

Prosecutor of the Court of Appeal. On 12 February 1990 the latter

requested the President of the Court of Appeal to agree to the

applicant's, RH's, LA's and H's committal before the three-member Court

of Appeal (Trimeles Efeteio) of Athens for possession of drugs, drug-

trading, participation in a criminal gang, forgery and trading in

foreign currency. He considered that the Court of Appeal was competent

to hear the case because of the nature of the offences.

On 27 February 1990 the President of the Court of Appeal acceded

to the prosecutor's request and renewed the investigating judge's order

for the detention of the applicant.

On 11 May 1990 the Public Prosecutor of the Court of Appeal of

Athens summoned the applicant and the other three co-accused to appear

before the Court of Appeal of Athens on 16 November 1990. On

26 October 1990 the Court of Appeal of Athens, sitting in chambers,

authorised the prolongation of the applicant's detention for another

six months.

On 16 November 1990 the Court of Appeal decided to adjourn the

hearing, because no interpreter for the Persian language was present.

The trial took place on 8 March 1991 in the absence of H, whom the

police had not succeeded in apprehending. The Court of Appeal heard one

prosecution witness, the police officer who arrested the applicant, and

three witnesses for the defence. A number of exhibits were shown. The

applicant was found guilty of possession of drugs and acquitted of the

remaining charges. He was sentenced to 10 years imprisonment and a

fine of 500,000 drachmas. LA and RH were convicted of drug-trading,

forgery and trading in foreign currency. They all immediately appealed

before the five-member Court of Appeal (pentameles efeteio) of Athens.

The hearing of the appeal was fixed for 21 October 1992. The

applicant's appeal would have been the fourteenth appeal to be heard

on that date. However, on 21 October 1992 the court did not finish its

list and decided to postpone the hearing of the appeal until

22 October 1992.

In the evening of 21 October 1992 the members of the Athens Bar

decided to start a strike as from the next day. The applicant who was

represented by a member of the Thessaloniki Bar requested the severing

of his case from that of LA who was represented by two lawyers from

Athens. The court, however, refused the request and adjourned the

hearing. The applicant claims that a new hearing date was originally

fixed for 6 June 1994 and that his first attempt to obtain an earlier

hearing date was unsuccessful.

The lawyers' strike lasted until April 1993. On a date which has

not been specified, acting on the request of one of the applicant's co-

accused, the Public Prosecutor ordered that the appeal should be heard

on 20 October 1993. It would have been the fifteenth appeal to be heard

on that date. The court, however, did not finish its list and adjourned

for the next day. The president of the court indicated that a further

adjournment was envisaged until 26 October 1993. Defence counsel not

being able, however, to appear neither on 21 nor on 26 October 1993,

the court decided, at their request, to adjourn the hearing until

12 January 1994.

The Court of Appeal eventually heard the appeal on

12 January 1994. In a decision issued on 13 January 1994 it confirmed

the first instance court's decision, but reduced the applicant's

penalty to four years and six months imprisonment and a fine of

300,000 drachmas. It further ordered the applicant's expulsion and

permanent exclusion from Greece.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the criminal proceedings against him.

Originally, the applicant had also complained of a violation of

Articles 3, 5 para. 3 and 14 of the Convention and of the right to a

fair hearing by an impartial tribunal under Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 April 1993 and registered on

22 June 1994.

On 7 November 1994 the applicant requested the Commission to

adopt interim measures under Rule 36 of its Rules of Procedure against

his imminent expulsion to Iran.

On 9 December 1994 the Commission decided not to apply Rule 36.

It also rejected the applicant's complaints under Articles 3, 5 para. 3

and 14 of the Convention and Article 6 para. 1 regarding the fairness

of his trial and the impartiality of the court. It further invited the

Government to submit written observations on the admissibility and

merits of the applicant's complaints regarding the length of the

criminal proceedings against him, pursuant to Rule 48 para. 2(b) of the

Rules of Procedure.

The Government's written observations were submitted on

22 February 1995. The applicant replied on 28 April 1995.

On 7 July 1995 the Commission decided to grant the applicant

legal aid.

On 16 October 1995 the Commission decided that the case should

be examined by the First Chamber.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the criminal proceedings against him.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention guarantees the right of every one to have a hearing within

a reasonable time in the determination of a criminal charge against

him.

The Government submit that the case was particularly complex

involving four accused persons, none of whom spoke Greek, and several

serious criminal acts, which had taken place in different places during

different periods of time. There were no significant delays during the

pre-trial stage. Both the first and second instance courts which heard

the applicant's case were particularly overburdened with work, as a

result, inter alia, of the lawyers' strike for which the Government

cannot be held responsible. Although there was an adjournment, the

first instance proceedings only lasted nine months. The first appeal

hearing had to be adjourned because the lawyers of one of the

applicant's co-accused were on strike and it was in the interests of

the proper administration of justice not to sever the proceedings

against the applicant. The second adjournment was requested by the

applicant's lawyer himself. In the light of all the above, the

Government conclude that the complaint is manifestly ill-founded.

The applicant submits that the pre-trial stage of the proceedings

was not concluded within a reasonable time. The Government were to be

held responsible for the delays caused by the overburdening of the

courts and the lack of interpreter services at the first trial hearing.

The strike of the Athens lawyers having been pre-announced, the defence

had expressly asked for the applicant's appeal to be heard on

21 October 1992, as it had been initially foreseen. The Government

could not invoke the lawyers' strike to justify the one-year delay

between the first and second appeal hearing. The defence applied for

the adjournment of the second appeal hearing at the suggestion of the

court, which had informed them that, if it had to adjourn proprio motu,

the hearing would not be held before October 1994.

In the light of the parties' observations, the Commission

considers that the application raises 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 Acting President

to the First Chamber of the First Chamber

(M.F. BUQUICCHIO) (J. LIDDY)

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TARIGHI WAGEH DASHTI v. GRÈCE

TARIGHI WAGEH DASHTI v. GRÈCE

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