Last Updated on May 24, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Kontalexis v. Greece (no. 2) – 29321/13
Judgment 6.9.2018 [Section I]
Article 6
Criminal proceedings
Article 6-1
Access to court
Criminal charge
Fair hearing
Complaint about refusal by domestic court to reopen criminal proceedings following finding of a violation of Article 6 by European Court: admissible
Refusal by Court of Cassation of request for revision of a criminal judgment further to a judgment of European Court finding a violation of Article 6: no violation
Facts – On 31 May 2011 the European Court found a violation of Article 6 § 1 in the case of Kontalexis v. Greece, 59000/08, lodged by the same applicant. On 18 January 2013 the Court of Cassation rejected a request by the applicant for the proceedings to be reopened on the basis of Article 525 § 1 e) of the Code of Criminal Procedure.
Relying on Article 6 § 1 of the Convention, the applicant alleged that the domestic courts’ refusal to order the reopening of the proceedings concerning him had constituted a fresh violation of his right to a fair hearing by a tribunal established by law.
Law – Article 6 § 1
a) Admissibility
i. Did Article 46 of the Convention preclude the Court’s examination of the complaint under Article 6 of the Convention ? – The new application raised a fresh complaint concerning the alleged unfairness of the procedure for examining the applicant’s exceptional appeal, as opposed to the outcome as such and its impact on the proper execution of the Court’s judgment of 31 May 2011. A supervision procedure in respect of execution of the judgment was currently pending before the Committee of Ministers of the Council of Europe. That did not, however, prevent the Court from examining a new application in so far as it included new aspects which had not been determined in the initial judgment. Accordingly, Article 46 did not preclude the Court’s examination of the applicant’s new complaint about unfairness of the proceedings culminating in the the Court of Cassation’s decision.
ii. Was the new complaint compatible ratione materiae with Article 6 of the Convention? – The procedure under the Code of Criminal Procedure did not amount to an extraordinary procedure falling outside the scope of Article 6 where it ended with a decision of the competent court refusing to reopen criminal proceedings. The examination of the case had concerned the determination, within the meaning of Article 6 § 1, of a criminal charge against the applicant. Accordingly, the proceedings before the Court of Cassation attracted the protection of Article 6 § 1.
iii. Could the applicant claim to be a victim of a violation of Article 6 in the domestic proceedings for enforcement of the Court’s judgment? – The Government’s preliminary objection concerning the applicant’s victim status related to proceedings culminating in the Court’s judgment of 31 May 2011. It therefore concerned a situation prior to the proceedings regarding the applicant’s request to have the case reopened. Only the fairness of the proceedings following the applicant’s request to have the case reopened could be the subject of a fresh review. The objection was therefore rejected.
b) Merits – When refusing to order the reopening of the proceedings, the Court of Cassation had held that the violation found by the Court had been of a formal nature and had not concerned the right guaranteed by Article 6, namely the right of the accused to be tried by an independent and impartial tribunal and by independent and impartial judges.
More specifically, the Court of Cassation had held that the violation found by the Court had not affected the fairness of the proceedings and had not had a negative impact on the assessment by the judges of the criminal court. The violation was a fait accompli and was covered by the res judicata effect of the Court of Cassation’s judgment dismissing the ground of appeal which the Court had subsequently upheld. The ground of appeal relating to the alleged unlawful composition of the court had been dismissed by the Court of Cassation in the first proceedings and that decision could not be retroactively challenged following the Court’s judgment.
According to the Court of Cassation’s interpretation of the Code of Criminal Procedure, procedural irregularities of the type found in the instant case did not give rise to an automatic right to the reopening of proceedings. That interpretation, which had the effect of limiting the situations that could give rise to the reopening of criminal proceedings that had been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts, did not appear to be arbitrary. Moreover, it was supported by the Court’s established case-law.
The Court of Cassation had held that the Court’s judgment of 2011 had not cast doubt on the independence or impartiality of the judicial bench that had delivered the judgment in question or the fairness of the proceedings as a whole.
In view of the margin of appreciation available to the domestic authorities in the interpretation of the Court’s judgments, and in the light of the principles governing the execution of judgments, it was unnecessary for the Court to express a position on the validity of the Court of Cassation’s interpretation in its judgment of 18 January 2013. Indeed, it was sufficient for the Court to satisfy itself that that judgment was not arbitrary in that the judges of the Court of Cassation had not distorted or misrepresented the judgment delivered by the Court.
Even if it did not necessarily agree in every respect with the analysis contained in the judgment of 18 January 2013, the Court could not conclude that the Court of Cassation’s reading of the Court’s judgment of 2011, viewed as a whole, had been the result of a manifest factual or legal error leading to a “denial of justice” and thus an assessment flawed by arbitrariness.
Conclusion: no violation (unanimously).
(See also Emre v. Switzerland (no. 2), 5056/10, 11 October 2011, Information Note 145; Bochan v. Ukraine (no. 2) [GC], 22251/08, 5 February 2015, Information Note 182; and Moreira Ferreira v. Portugal (no. 2) [GC], 19867/12, 11 July 2017, Information Note 209)
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