Published on 3 July 2023

THIRD SECTION

Application no. 31024/20 Konstantinos AGGELAKIS against Greece lodged on 20 July 2020 communicated on 12 June 2023

SUBJECT MATTER OF THE CASE

The applicant was a member of the National Intelligence Service. After his removal from his post, a search operation was conducted in his office and certain allegedly confidential documents were seized. Criminal charges were pressed against the applicant for espionage, and he was convicted to eighteen months’ imprisonment. His appeal on points of law was rejected by decision no. 1089/2019 of the Court of Cassation delivered on 7 June 2019.

The application concerns, under Article 6 §§ 1 and 3 (b) and (d) of the Convention, the refusal of the domestic courts to grant the applicant access to the documents seized in his office and the refusal of the domestic courts to subpoena witnesses he proposed to be heard. Due to their employment by the National Intelligence Service, those persons could not get permission to testify without an official subpoena. The applicant also complains about the dismissal of his grounds for cassation concerning a breach of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (b) and (d) of the Convention? In particular:

(i) Were the principles of adversarial proceedings and equality of arms respected having regard to: a) the fact that the documents seized from the applicant’s office did not form part of the case-file and the applicant was refused access to them; b) the appellate court’s refusal to issue subpoenas for the witnesses proposed by him who could not obtain permission to testify otherwise?

(ii) Was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention, having regard to the refusal to grant him access to the documents seized in his office?

(iii) Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention (see, for instance, Murtazaliyeva v. Russia [GC], no. 36658/05, § 139-168, 18 December 2018)? Did the domestic courts provide relevant reasons for dismissing his request to call the witnesses proposed by him (see, for instance, Topić v. Croatia , no. 51355/10, § 42, 10 October 2013)?

2. Was the decision no. 1089/2019 of the Court of Cassation sufficiently reasoned (see Talmane v. Latvia , no. 47938/07, § 29, 13 October 2016; and Zayidov v. Azerbaijan (no. 2) , no. 5386/10, § 91, 24 March 2022)? More in particular and noting that the High Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and its Protocols (subsidiarity principle as reflected in the Court’s case-law and in the preamble of the Convention following the adoption of Protocol No. 15 to the Convention), does the Greek legal system provide for the alleged violation of the Convention as a separate reason for cassation? In the negative, how is the examination of a possible violation of Article 6 § 1 of the Convention safeguarded in the domestic legal system? In the circumstances of the present case, did the refusal of the Court of Cassation to examine the relevant reasons put forward by the applicant amount to a breach of Article 6 § 1 of the Convention?