Information Note on the Court’s case-law 264
Judgment 5.7.2022 [Section III]
Sufficiently reasoned dismissal of criminal appeal, consequent on a tie vote, based on applicant’s failure to discharge his burden of proof as required by domestic law: no violation
Facts – The applicant who had been the Chief of the Special Unit for Disaster Response at the time of the 2011 Evangelos Florakis Naval Base explosion, was convicted of causing death by a rash, reckless or dangerous act and sentenced to two years’ imprisonment in relation to the incident. On appeal the Supreme Court, sitting in a twelve-judge formation (one judge had not sat owing to his upcoming retirement), came to a tie vote. It delivered three judgments: one judgment by six judges dismissing the appeal and two separate judgments by the remaining two and four judges respectively indicating that they would allow the appeal. After the judgments were pronounced the President of the Supreme Court made a separate announcement concerning, inter alia, the summary of the applicant’s appeal. In this connection, he stated that the appeal was dismissed because there was a tie vote and the applicant did not discharge the burden of proving that the first-instance decision and sentence were incorrect. Still on the same day, the Supreme Court issued a similar a press release.
Law – Article 6 § 1: Domestic law did not preclude ties in Supreme Court votes and that court was deemed to be duly constituted, notwithstanding any vacancy in its membership. In the event of a tie in the Supreme Court, its President did not have a casting vote and judgment was issued against the party who has the burden of proof (section 27(2) of Law 14/1960). According to the domestic case-law the burden of quashing a conviction in criminal appeals rested with the appellant, while the burden of showing that there was not a substantial miscarriage of justice despite an error in the trial court judgment, rested with the prosecution.
The Court has not interpreted a tied vote to constitute per se a violation of Article 6 nor, in the circumstances of the present case, could it find that section 27(2) was per se contrary to the above provision. That being said, given the applicant’s complaints and arguments, the core question was whether the Supreme Court’s judgments resulting in the dismissal of his appeal had been reasoned enough to allow him to understand why the dismissal had resulted from the operation of section 27(2), and whether that decision had been clear enough as to its conclusion and outcome. The Court replied in the affirmative for the following reasons.
As the parties had been informed at the beginning of the trial that one of the judges would not be part of the bench, the possibility of a tie vote had been evident to the applicant whose lawyer did not raise any concerns regarding the court’s formation. No issue arose as to the Supreme Court’s examination of the merits of the case and issues pertaining to the correctness of the first instance decision, all three judgments being sufficiently reasoned in this respect. Although the Supreme Court had not expressly referred to section 27(2) in the judgments, the dismissal of the applicant’s appeal had been the inevitable result of the tie vote, significantly reducing thus the degree of legal debate required by the Supreme Court on the matter. In this connection, the wording of the judgments could not be ignored; those allowing the appeal had used hypothetical language whereas the judgment of dismissal had expressly stated that the appeal was dismissed. Furthermore, the announcements made by the Supreme Court’s President and then the Supreme Court itself, ensured that the applicant had understood that his appeal had been dismissed as result of his failure to discharge his burden of proof. Lastly, it transpired from the applicant’s submissions before this Court, that there was no doubt that he had understood that the dismissal had been by reason of the operation of section 27(2).
Although the inclusion of a correspondingly short reasoning on the matter and a brief conclusion as to the outcome of the case in the written judgments might have been suitable, its absence in the particular circumstances of the case did not infringe the requirements of Article 6 § 1.
Conclusion: no violation (four votes to three).