Communicated on 5 July 2017

FIRST SECTION

Application no. 75140/12 Ioannis ROUSSIS against Greece lodged on 9 November 2012

STATEMENT OF FACTS

The applicant, Mr Ioannis Roussis , is a Greek national who was born in 1958 and lives in Bretten . He is represented before the Court by Mr G. Arbis and Mr T. Nakos , lawyers practising in Athens and Volos.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 September 1993 the applicant was convicted in absentia of selling drugs by a three-member panel of the Larisa Court of Appeal for Felonies ( Τριμελές Εφετείο Κακουργημάτων ) to six years ’ imprisonment (decision no. 431/1993). The applicant was tried “as if [he were] present” ( ωσεί παρών ) owing to the fact that notice of the hearing date had been served at the place that the authorities considered to be his residence ( γνωστής διαμονής ) . Domestic legislation as in force at the material time provided that a person accused for felony had to attend the hearing in person rather than be represented in his absence (Article 340 of the Code of Criminal Procedure).

The decision was not subject to legal remedies unless the applicant was arrested or surrendered himself to the relevant authorities in order that he might serve his sentence. In such a case, he would be brought to trial but until a new decision was delivered he would serve the sentence that had been imposed on him under the initial decision (Article 432 of the Code of Criminal Procedure as in force at the time). He could, following his arrest, request the suspension of the enforcement of the sentence; such a request would be allowed unless he was considered especially dangerous or a habitual offender or there was a legitimate fear that he would commit further offences (Article 34 of Law no. 2172/1993). The statutory limitation period in respect of the offence would be suspended until a new decision was issued.

Following a change in legislation introduced by Law no. 3904/2010, the above-mentioned prohibition on using legal remedies was lifted and the relevant provisions concerning an automatic retrial in the event of arrest or surrender and the suspension of the statutory limitation period were repealed.

On 2 February 2011 the applicant, who was by then living in Germany, lodged through his representative an appeal against decision no. 431/1993 of the three-member panel of the Larisa Court of Appeal for Felonies. The five-member panel of the Larisa Court of Appeal held that the applicable law was the one which had been in force at the time that the first-instance decision had been issued. Since that law had not allowed for the using of a legal remedy against a decision issued in absentia unless the convicted person had been arrested or had surrendered himself to the authorities in order that the sentence could be executed, the applicant ’ s appeal was rejected as inadmissible (decision no. 169/2011).

On 12 May 2011 the applicant lodged an appeal on points of law with the Court of Cassation. The applicant argued that the applicable law was the one which had been in force at the time when the legal remedy had been used and not at the time when the decision of the first-instance court had been issued. Any other interpretation would violate the applicant ’ s right of access to a court under Article 6 § 1 of the Convention as it would mean that the applicant should subject himself to the execution of the sentence in order to be able to be tried again. Therefore, in the light of the legislative amendments to Article 432 of the Code of Criminal Procedure introduced by Law no. 3904/2010, his appeal should have been considered admissible.

On 14 May 2012 the Court of Cassation dismissed the applicant ’ s appeal on points of law (decision no. 800/2012). According to the Court of Cassation, whether a convicted person could use a legal remedy against a decision should be considered with reference to the law in force at the time of the delivery of that decision, under Articles 596 and 601 of the Code of Criminal Procedure, in conjunction with Article 2 of the Criminal Code (see the “Relevant domestic law” part below). In view of the lack of a specific provision concerning the retroactive application of law in respect of decisions which had already been delivered prior to the entry into force of Law no. 3904/2010 (by which Article 432 of the Code of Criminal Procedure had been amended), the applicant could not benefit from the aforementioned legislative amendment. In any event, Article 432 of the Code of Criminal Procedure, as in force when the decision of the first-instance court had been g iven, had not been in breach of Article 20 of the Constitution or Article 6 of the Convention, as restrictions on the using of legal remedies could be imposed for reasons of public interest. The applicant had not been deprived of his right of access to a court, as he would have been retried following his arrest or surrender and the new decision would have been subject to all legal remedies. Up until the point that the new decision had been issued, he could have asked for a suspension of the sentence ’ s execution. Accordingly, the Court of Cassation dismissed the applicant ’ s appeal on points of law. The decision was finalised on 30 July 2012.

B. Relevant domestic law

1. Constitution

Under Article 20 § 1 of the Constitution, “every person shall be entitled to receive legal protection from the courts and may raise before them his views concerning his rights or interests, as specified by law.”

2. Code of Criminal Procedure

Article 432 of the Code of Criminal Procedure, as in force at the time of the delivery of decision no. 431/1993 by the three-member panel of the Larisa Court of Appeal for Felonies, read as follows:

Article 432

"1. If a person who is brought to trial for felony is or is considered to be of known residence under Article 273 and does not appear on the date of the hearing, he shall be tried as if he were present, provided that he has been served notice at his known residence. No legal remedies can be used against the decision that is [subsequently] issued.

2. If the convicted person is arrested or surrenders himself of his own will for the execution of the sentence that has been imposed on him, the case shall be retried. The defendant shall be brought to a court to be tried inter partes ( κατ ’ αντιμωλία ). Until the new decision is delivered the defendant shall serve the sentence that was imposed to him under the first decision. The decision that was delivered in the absence of the defendant is automatically overturned as soon as the new – inter partes – decision is issued. The statutory limitation period in respect of the offence is suspended ipso jure from the date on which the decision in absentia was delivered and the suspension lasts until the new inter partes decision is delivered ...”

Following a change in legislation introduced by Law no. 3904/2010, the prohibition on using legal remedies was lifted and the relevant provisions concerning automatic retrial in the event of arrest or surrender and the suspension of the statutory limitation period ceased to be in force.

The other relevant Articles of the Code of Criminal Procedure read as follows:

Article 596

“1. Trials which are pending at any stage of the criminal procedure and at any instance continue under the provisions of the Code of Criminal Procedure. Legal instruments [employed] in the criminal procedure ... when the provisions which are repealed were in force shall still be valid.”

Article 601

“... Legal remedies used before the entry into force of this code shall be examined in accordance with the provisions of criminal procedure that are repealed ...”

3. Law no. 2172/1993

Article 34 of Law no. 2172/1993 in its relevant parts reads as follows:

Article 34

“10. In the event that a defendant is convicted of an imprisonable offence by a judicial decision, pursuant to Article 432 § 2 subparagraph (a) of the Code of Criminal Procedure, ... he or she can request the suspension of the execution of the decision until a new inter partes decision is issued, as provided by Article 432 § 2 subparagraph (c) ... [Such a] suspension is ordered if the defendant is not particularly dangerous or not a habitual offender and if there is no legitimate fear that he will commit further offences ...”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right of access to a court on account of his not being able to challenge the decision delivered against him in absentia unless he surrendered himself to custody or was arrested. He also complains of a violation of Article 2 of Protocol No. 7 on the grounds that Article 432 of the Code of Criminal Procedure, as in force at the time when decision no. 431/1993 of the three-member panel of the Larisa Court of Appeal for Felonies was delivered, prohibited appeals by persons who had been convicted in absentia.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his right of access to a court, as provided by Article 6 § 1 of the Convention, having regard to the fact that he was unable to challenge decision no. 431/1993 issued by the three-member panel of the Larisa Court of Appeal for Felonies against him in absentia unless he was arrested or surrendered himself for the execution of the sentence that had been imposed to him by the above-mentioned decision (see Krombach v. France , no. 29731/96, § 87, ECHR 2001 ‑ II, and mutatis mutandis , Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006 ‑ II ) ?

2. Was the applicant afforded the right of appeal in a manner compatible with the requirements of Article 2 of Protocol No. 7?