AS TO THE ADMISSIBILITY OF

                      Application No. 16983/90

                      by Muharrem GÜLEÇ

                      against Greece

      The European Commission of Human Rights sitting in private on

10 October 1994, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

           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 15 November 1989

by Muharrem GÜLEÇ against Greece and registered on 6 August 1990 under

file No. 16983/90;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to :

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      23 September 1993 and the observations in reply submitted by the

      applicant on 17 and 31 March 1994 ;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant was born in 1946 and is a Turkish and Dutch

national. At the time of lodging his application the applicant was

detained in the Patras prison. He is currently detained in the Corfu

prison. In the proceedings before the Commission he is represented by

Mrs. M.D. van Aller, a lawyer practising in Amsterdam.

A.    The particular circumstances of the case

      The facts of the case as submitted by the parties may be

summarised as follows:

      On 3 January 1988 the applicant was arrested at the Nea Gefira

Evrou customs station, on the Greek-Turkish frontier, when heroin was

discovered in his car. Four reports concerning the applicant's arrest,

his plea of defence, the in flagrante character of the offence and the

seizure of the drugs and of the car were drafted on the spot by the

customs officers who had made the discovery and arrested the applicant.

      The applicant claims that the presence of three Greek citizens

in his car at the moment of his arrest was intentionally concealed in

these reports. He also alleges that the customs officers kept 1,3 kilos

of the heroin they discovered in his car, mentioning in their reports

that they had seized only 6,95 kilos of drugs.

      On 4 January the applicant testified before the investigating

judge, with the help of a customs officer who acted as an interpreter.

      On 5 May 1988 the applicant appeared before the three-member

Court of Appeal of Komotini (Trimeles Efeteio) which heard his case at

first instance. He was represented by Mr. A, a lawyer practising in

Alexandroupoli, whom he had engaged and paid for himself. He was also

assisted by an interpreter, Mrs. S. Defence counsel pleaded that the

applicant was a drug user and requested a medical examination. The

court refused the request, found the applicant guilty of a series of

drug related offences, and sentenced him to 20 years' imprisonment and

a fine of 50.000.000 GrDrs.

      The applicant appealed against his conviction before the five-

member Court of Appeal (Pentameles Efeteio) which heard his appeal on

20 0ctober 1988. The applicant was represented by Mr. T, a lawyer

practising in Thessaloniki, whom he had engaged and paid for himself.

He was again assisted by the same interpreter. The applicant claims

that the court ordered his eviction from the courtroom when he asked

to see a report he had not received. The court rejected his appeal.

      On 15 November 1988 the judgment of the Court of Appeal was

finalised (katharographi). On 16 November 1988, while in prison, the

applicant received a communication from Mr. T, the lawyer who had

represented him at second instance, to which an appeal memorial drafted

by the latter was attached. Mr. T invited the applicant to appeal in

cassation by submitting the memorial to the director of the prison.

      The applicant submitted his appeal on 18 November 1988. The

applicant's appeal was grounded on the fact that the decision of the

Court of Appeal at second instance was inadequately reasoned and, more

specifically, that "the Court of Appeal breached Article 510 para. 1(d)

of the Code of Criminal Procedure by not mentioning in its decision the

facts on the basis of which the court had considered that all the

elements of the offence were present in the applicant's case, the

evidence on the basis of which the court had been convinced about the

existence of these facts and the legal grounds on the basis of which

the court had considered that the particular set of facts fell within

the ambit of the legal provisions it had applied". In his memorial of

18 November the applicant, following the instructions of his lawyer,

reserved the right to expand on the grounds of his appeal by lodging

a memorial of "additional grounds" (prosthetoi logoi).

      On 11 January 1989 the applicant was informed that his appeal in

cassation would be heard on 21 April 1989. On 8 March 1989 Mr. T

informed the applicant that 150.000 GrDrs were needed with a view to

instructing counsel entitled to appear before the Court of Cassation

who would have formulated "additional grounds" at the latest 15 days

before the appeal hearing.

      Not having the necessary means, the applicant addressed himself

to the Netherlands Embassy. However, their assistance was not

forthcoming. The applicant claims that he was first informed of the

possibility of requesting the appointment of a legal aid lawyer on 13

April 1989. He immediately lodged an application to this effect with

the prison authorities, which was, however, refused.

      The applicant's appeal in cassation was rejected on 11 September

1989 as inadmissible, the applicant not having been represented by

counsel.

      On 5 October 1989 the applicant was asked to pay the sum of

18.000 GrDrs, as ordered by the Court of Cassation, in respect of the

costs of the proceedings before this court. The decision of the Court

of Cassation was communicated to the administration of the prison. The

applicant claims that, despite his repeated requests, the decision was

never served on him and that he was first informed in detail about the

outcome of the proceedings and the reasons for the rejection of his

appeal in cassation on 30 September 1991 when he received a letter by

the Netherlands Embassy concerning these matters.

      Having paid the 18.000 GrDrs mentioned above, the applicant asked

to be transferred to a prison in the Netherlands. His request was

rejected by the Greek authorities on the ground that he had not paid

the entirety of the penalty imposed on him by the criminal courts. The

Greek authorities refused to take into consideration a certificate of

lack of means issued by the Dutch authorities.

B.    Relevant domestic law

1.    Article 510 para. 1 (d) of the Code of Criminal Procedure

mentions, among the various grounds of appeal in cassation against a

lower court decision, the "inadequate reasoning of the decision,

contrary to the provisions of the Constitution".

      According to the constant case-law of the Court of Cassation, the

grounds of appeal in cassation must be sufficiently substantiated,

otherwise the appeal is rejected as inadmissible. Appeals in cassation

which refer in general to the lack of adequate reasoning, without

specifying any particular gaps, ambiguities, contradictions or other

deficiencies, are always declared inadmissible as insufficiently

substantiated (Court of Cassation decisions No. 1438/86, (Poinika

Chronika vol. 37, p. 170, 44/87, Poinika Chronika vol. 37, p. 309,

30/87, Poinika Chronika vol. 37, p. 308, 182/1987, Poinika Chronika

vol. 37, p. 605, and 1453/87, Poinika Chronika vol. 38, p. 191).

2.    Persons appealing in cassation must lodge their appeal, in

accordance with Article 473 paras. 1 and 3 of the Code of Criminal

Procedure, within five 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 a twenty day time-limit

within which an appeal in cassation may be lodged by the accused

against a decision finding him guilty, by making a declaration to this

effect before the Attorney General of the Court of Cassation. This

declaration may supplement an appeal in cassation lodged before one of

the authorities mentioned in Article 474, "when the latter does not

contain any sufficiently substantiated grounds".

      In accordance with Article 509 para. 2 of the same Code, 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 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979,

(Nomiko Vima 1980, p. 56, 647/1983, 1438/1986, Poinika Chronika vol.

37, p. 170, and 1453/87, Poinika Chronika vol. 38, p. 191).

      This case-law limitation applies to the "additional grounds"

which may be submitted within the time-limit of Article 509 para. 2

only. It does not apply to the grounds which may be submitted within

the twenty day time-limit of Article 473 para. 3, which, in accordance

with the express letter of the provision, may supplement the initial

memorial "when the latter does not contain any sufficiently

substantiated grounds" (Court of Cassation decisions No. 325/63,

Poinika Chronika 1963, p. 630, and 333/63, Poinika Chronika 1963, p.

632).

COMPLAINTS

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

fairness of the criminal proceedings against him.

      In particular, the applicant complains of the alleged inadequacy

of the interpreters who assisted him at various stages in the

proceedings. He claims that the interpreter who assisted him during his

examination by the investigating judge magistrate was a customs officer

who modified the applicant's statements in order to conceal the

irregularities committed by other customs officers who had seized the

drugs. The applicant alleges that he could not understand the

interpreter who assisted him during the two hearings before the Court

of Appeal of Komotini and who, moreover, translated his statements

badly with the result that the judges of the second instance court

considered that the applicant lacked respect for the court and expelled

him from the courtroom.

      The applicant also complains about the conduct of his defence by

his lawyers, who, allegedly, disregarded his submission that the three

Greek citizens who were in his car at the time of his arrest were

neither arrested nor examined by the customs officers. Moreover, the

lawyer who represented the applicant at first instance pleaded,

contrary to his wishes, that he was a heroin user.

      The applicant further complains of the fact that that he was

never notified of the content of the reports written by the customs

officers upon his arrest, despite their key importance for his

conviction. He also claims that he was not allowed to submit anything

in his defence at first and second instance.

      In this context the applicant finally complains of the brevity

of the hearing before the first and second instance courts and of the

composition of the court at second instance, which, according to the

applicant, comprised one of the judges who had heard his case at first

instance.

2.    The applicant next complains under Article 6 of the Convention

that he could not obtain the appointment of legal aid counsel who would

have represented him before the Court of Cassation.

3.    Finally, the applicant complains under Article 3 of the

Convention of the conditions of his detention in the Greek prisons, in

particular overcrowded cells and a lack of medical care.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 15 November 1989 and registered

on 6 August 1990.

      On 3 May 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their observations on the admissibility and the merits of the case.

      The Government's observations were submitted on

23 September 1993, after an extension of the time-limit fixed for this

purpose. On 17 March 1994 the applicant submitted his observations in

reply, also after an extension of the time-limit fixed for this

purpose. On 31 March 1994 the applicant submitted supplementary

observations.

THE LAW

1.    The applicant complains of unfair criminal proceedings against

him. In particular he complains of allegedly inadequate interpretation

and legal services, the non-notification of reports by the customs

officers who arrested him and the brevity of court hearings.

      Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

      "1.  In the determination of ... any criminal charge against

      him, everyone is entitled to a fair and public 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".

      As a preliminary point the Government submit that the applicant

has failed to exhaust domestic remedies because he did not raise any

of his complaints when appealing in cassation against the judgment of

the court of appeal. He also failed to institute criminal proceedings

against the interpreters under Article 226 of the Criminal Code.

      The applicant submits that the grounds of his appeal in cassation

were drafted by his Greek lawyer without consulting him. The applicant

lodged the appeal in cassation although he was unable to understand its

contents. As a result, he cannot be held responsible for this document

and its deficiencies, of which he became aware for the first time on

30 September 1991 when he received a letter by the Netherlands Embassy

explaining the reasons for the rejection of his appeal.

      The Commission recalls that where an accused person is

represented by a lawyer he must generally exercise his procedural

rights through his lawyer (No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50) and

that the accused cannot complain under the Convention of the acts or

omissions of his lawyers (No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21).

      The Commission notes that in the proceedings before the first and

second instance courts the applicant was represented successively by

two Greek lawyers whom he had chosen and remunerated himself. The

grounds of the appeal in cassation lodged by the applicant on

18 November 1988 were drafted by the lawyer who had represented the

applicant at second instance.

      The Commission also notes that the memorial lodged by the

applicant on the above-mentioned date did not contain any reference to

the complaints he is raising before the Commission. In fact, the

memorial did not contain any grounds which would qualify as admissible

and sufficiently substantiated, within the meaning of the constant

case-law of the Greek Court of Cassation.

      Although the applicant now feels profoundly dissatisfied with the

handling of his appeal in cassation by the lawyer who had represented

him at second instance, there is no doubt that at the material time the

applicant wished to continue to be represented by this particular

counsel.

      The Commission further notes that the same counsel continued to

represent the applicant, with the latter's consent, until 8 March 1989

when the question of the appointment of counsel entitled to plead

before the Court of Cassation first arose. As a result, the applicant

must bear the consequences of his lawyer's choice not to avail himself

of the possibility to supplement within the twenty day time-limit of

Article 473 para. 2 of the Code of Criminal Procedure the

insufficiently substantiated grounds he had submitted on

18 November 1988.

      The Commission finally notes that the applicant would have been

precluded under domestic law from submitting additional grounds of

appeal after 8 March 1989, even if legal aid counsel had been

appointed.

      The Commission concludes that in the circumstances of the present

case the applicant has not complied with the requirement under Article

26 (Art. 26) of the Convention to exhaust domestic remedies. It follows

that this part of the application must be rejected pursuant to Article

27 para. 3 (Art. 27-3) of the Convention.

2.    The applicant next complains that he could not have access to the

Court of Cassation because he did not have the means to hire the

services of a lawyer entitled to plead before this jurisdiction.

      The Commission refers to the rights guaranteed by Article 6 para.

3 (c) (Art. 6-3-c) of the Convention cited above.

      As a preliminary point the Government submit that the applicant

has failed to exhaust domestic remedies because he did not request the

appointment of legal aid counsel by either the Court of Cassation or

one of the Bar associations, although such an appointment was possible

in accordance with Greek law at the material time. As to the substance

of the complaint, the Government submit that the applicant did not lack

the means to instruct counsel, having borne the expenses of his legal

representation before the first and second instance court, and that the

appointment of counsel was not necessary in the interests of justice,

the applicant's appeal in cassation not having contained any

"admissible and sufficiently substantiated" ground of appeal.

      The applicant submits that legal aid for cassation appeals in

criminal cases is not available in Greece and that, in any event, he

was not aware of any such possibility until 13 April 1989. When on that

date he asked for legal aid, his application was refused. As to the

substance of the complaint, he submits that after over a year of

imprisonment in a foreign country he was completely destitute, that he

had been obliged to request the financial assistance of the Netherlands

Embassy, and that his own interests as an accused person rendered

necessary the appointment of legal aid counsel.

      The Commission notes that that the Government and the applicant

disagree as to whether Greek law provides for the appointment of legal

aid counsel in criminal cases before the Court of Cassation and, if so,

whether the applicant had been duly informed and whether he effectively

attempted to avail himself of this possibility. The Commission

considers, however, that, in the circumstances of the case, the

question of exhaustion of domestic remedies may be left open, because

this part of the application is, in any event, manifestly ill-founded

for the following reasons:

      The Commission notes that until 8 March 1989 the applicant was

represented by counsel of his own choice, who was fully competent under

domestic law to undertake all the procedural steps required to defend

the interests of his client. It also notes that the question of the

applicant's impecuniosity had not arisen before that date.

      The Commission recalls that on 8 March 1989 the lawyer who had

represented the applicant at second instance informed him of the need

to instruct counsel entitled to plead before the Court of Cassation and

asked him for the relevant fee, which the applicant was unable to pay.

      At that stage of the proceedings, however, the applicant was

already precluded under national law from raising before the Court of

Cassation the complaints he is now making before the Commission. The

Commission recalls, in this connection, that the applicant's memorial

did not contain any "admissible and sufficiently substantiated" ground

of appeal in cassation and that he failed to supplement it within the

twenty day period provided for under Article 473 para. 2 of the Code

of Criminal Procedure. This precluded him under domestic law from

raising any new grounds of appeal at the "additional grounds" stage

provided for by Article 509 para. 2 of the Code of Criminal Procedure,

i.e. not later than fifteen days before the hearing (cf. Eur. Court

H.R., Hadjianastassiou judgment of 16 December 1992, Series A no. 252,

pp. 14-15, para. 26, and p. 17, para. 36).

      In these circumstances, the Commission finds that, even if the

applicant had obtained the appointment of legal aid counsel after

8 March 1989, this would not have improved his prospects of succeeding

in the casssation appeal. In these circumstances, the Commission does

not consider that the appointment of legal aid counsel was necessary

in the interests of justice, as envisaged by Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Finally, the applicant complains under Article 3 (Art. 3) of the

Convention of the conditions of his detention in the Greek prisons.

      Article 3 (Art. 3) of the Convention reads as follows:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      However, the Commission finds not only that the applicant has

failed to exhaust domestic remedies as regards this complaint, but also

that there is no evidence in the case-file to substantiate it.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission                 President of the Commission

       (H.C. KRÜGER)                               (C.A. NØRGAARD)