ZACHOULIS v. GREECE (European Court of Human Rights)

FIRST SECTION
DECISION

Application no. 68747/11
Georgios ZACHOULIS and Antonios ZACHOULIS
against Greece

The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:

Kristina Pardalos, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 4 October 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The applicants, Mr Georgios Zachoulis and Mr Antonios Zachoulis, are Greek nationals who were born in 1945 and 1949 respectively and live in Stuttgart. They were represented before the Court by Mr A. Zachariadis, a lawyer practising in Thessaloniki.

2.  The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms G. Papadaki and Ms S.Papaioannou, respectively Senior Advisor and Legal Representative at the State Legal Council.

A.  The circumstances of the case

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

4.  On 7 February 2008 a mixed court of judges and jurors at the Giannitsa Criminal Court of First Instance (Μικτό Ορκωτό Δικαστήριο) found D.T. guilty of intentional homicide, burglary and two other offences related to drugs. The applicants, being the sons of the murder victim, had joined the proceedings as civil parties, claiming ten euros (EUR) each in damages. The court (finding under Articles 83 and 84 § 2 (d) of the Criminal Code that there had been extenuating circumstances and, in particular, that the accused had expressed sincere regret) sentenced D.T. to fifteen years’ imprisonment for intentional homicide, five years’ imprisonment for the burglary and to one month’s imprisonment for the offences related to drugs – a total of eighteen years and one month in jail (decision no. 4-7/2008). It additionally awarded each of the applicants ten euros in damages.

5.  The applicants, as civil parties, could only appeal against the compensation they had been awarded, in accordance with Article 488 of the Code of Criminal Procedure. In view of that fact, on 11 February 2008 the applicants asked the Giannitsa public prosecutor of the Court of First Instance to appeal against the decision on the grounds that the court should not have found any extenuating circumstances and should have imposed the maximum possible sentence. They furthermore argued that even given extenuating circumstances, the court should have made a proper evaluation of the seriousness of D.T’s offences and his character, as required by Article 79 of the Criminal Code, which meant that it should have imposed a heavier sentence.

6.  On 15 February 2008 the public prosecutor appealed against the decision on the above-mentioned grounds. D.T. also appealed.

7.  On 17 March 2011 a mixed court of judges and jurors at the Thessaloniki Court of Appeal (Μικτό Ορκωτό Εφετείο) held a hearing in the case. The applicants participated again as civil parties. The court dismissed the public prosecutor’s appeal as inadmissible on the grounds that it had not been lodged in accordance with the procedural rules of Article 474 § 1 of the Code of Criminal Procedure. In particular, it held as follows:

“… Moreover, the appeal by the Giannitsa public prosecutor of the court of first instance dated 15February2008 shall be dismissed as inadmissible as, under Article 474 § 1 of the Code of Criminal Procedure, the legal remedy in question must be lodged by a declaration to the registrar of the court that issued the decision … and a report is drafted for that declaration and signed by the person submitting it or his representative (Article 465 § 1) and by the person who accepts it. It is clear from that provision that it is not permitted to lodge a legal remedy in any other way, with the exception of the case set out in Article 473 § 2 of the Code of Criminal Procedure; otherwise the legal remedy shall be dismissed. According to well-established jurisprudence it is inadmissible to lodge a legal remedy by means of a separate document, which cannot be considered as a “declaration” even if it has been numbered and signed by the registrar (see decisions no. 1163/2002, no. 1196/2002, 1061-1654/2000 of the Court of Cassation) … Turning to the present case, the public prosecutor at the Giannitsa Court of First Instance lodged an appeal by means of a separate document dated 15February2008, which was signed by the registrar, but for which no report was drafted, such a report having to include a declaration by the above-mentioned public prosecutor regarding the lodging of the appeal and the signatures of both the public prosecutor who lodged the appeal and the registrar who accepted it. On the basis of the above, this appeal must be dismissed as inadmissible.”

8.  The mixed court of judges and jurors of the Thessaloniki Court of Appeal upheld the first-instance court’s decision and sentenced the applicant to eighteen years and twenty days’ imprisonment. It considered that there were extenuating circumstances under Article 84 § 2 (d) of the Criminal Code (decision 19-23/2011).

9.  On 6April2011, the applicants asked the public prosecutor of the Court of Cassation (ΆρειοςΠάγος) to lodge an appeal on points of law against the Court of Appeal’s decision, under Article 505 § 2 of the Code of Criminal Procedure, arguing that the appeal court should not have dismissed the public prosecutor’s original appeal. The applicants, relying on Article 6 of the Convention, argued that the dismissal of the appeal had been excessively formalistic, as the document by which the appeal had been lodged had been dated and signed by both the public prosecutor and the registrar.

10.  On 11April2011, the public prosecutor at the Court of Cassation dismissed the applicants’ application, writing “Rejected” on it and adding his signature.

B.  Relevant domestic law

1.  Criminal Code

11.  The relevant parts of the Greek Criminal Code provide:

Article 63

“Persons entitled under the Civil Code to compensation for damage for non-pecuniary harm and restoration of damage may join criminal proceedings as civil parties.”

Article 79

“1.  When assessing a sentence within the limits prescribed by law, the court shall take into consideration: a)  the seriousness of the offence and b)  the offender’s character.”

Article 84

“1.  A more lenient sentence is imposed, in accordance with the provisions of the preceding Article, where the court considers that there are extenuating circumstances.

2.  The following are considered as extenuating circumstances: a)…, b)…, c)…, d)  where (the guilty person) has shown sincere regret and has promised to expunge or diminish the consequences of his act …”

2.  Code of Criminal Procedure

12.  The relevant parts of the Code of Criminal Procedure read as follows:

Article 139

Reasoning

“Decisions, Indictment Division orders and orders by investigating judges and public prosecutors must have full and specific reasoning, while a decision to convict and indictment orders must also give the number of the Article of the applicable legal provision (Article 484 § 1 (d) and (e) and 510 § 1 (d) and (h)).

Merely repeating the legal provision is not sufficient reasoning.

Reasoning is required for all decisions and orders without exception, regardless of any specific requirement of the law, if they are definitive or interlocutory, or whether the judge had discretionary powers that were free or not subject to review as to whether to issue them.”

Article 474

Report and grounds for applying for a legal remedy

“1.  Without prejudice to Article 473 § 2, an application for a legal remedy is lodged by a declaration to the registrar of the court which issued the decision … The registrar to whom the application for a legal remedy has been made drafts a report which is signed by the person who has lodged the application for the remedy or his representative (Article 465 § 1) and by the person who accepts it…

2.  The report must include the grounds on which the application for the legal remedy has been lodged…”

Article 488

Appeal against conviction

a)  By a civil claimant

“A civil claimant can appeal against a decision to convict a defendant, but only with respect to the parts of the decision by which his civil action was rejected as having no basis in law or by which he was awarded compensation …”

Article 489

b)  By a defendant or public prosecutor

“A person who has been convicted and the public prosecutor … have the right to appeal:

f)  against decisions by a mixed court of judges and jurors of a criminal court of first instance … which has passed a sentence on a defendant of at least three years’ imprisonment for a felony or at least two years’ imprisonment for a misdemeanour …”

Article 505

Who can lodge an appeal on points of law

“1.  Except for such an instance as that set out in paragraph 3 of the preceding Article, an appeal on points of law can be lodged by: a) defendants, … c) claimants under a civil action against a conviction, but only in respect of the part awarding compensation or just satisfaction or if a civil action has been rejected as having no basis in law …

2.  The public prosecutor attached to the Court of Cassation can lodge an appeal on points of law against any decision …”

COMPLAINTS

13.  The applicants complained that the dismissal of the public prosecutor’s appeal as inadmissible owing to non-observance of the formal requirements had violated their right of access to a court in the criminal proceedings in which they had participated as civil parties. They additionally complained of the lack of reasoning in the decision taken by the public prosecutor at the Court of Cassation to not lodge an appeal on points of law at their request.

THE LAW

14.  The applicants relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”

A.  As regards the dismissal of the public prosecutor’s appeal

1.  The parties’ arguments

15.  The Government maintained that under Article 474 of the Code of Criminal Procedure, the report drawn up by the registrar had been a constitutive element of the appeal and that therefore, any appeal that had been lodged without following the formalities had been inadmissible. This rule aimed at ensuring compliance with the principles of the proper administration of justice and of legal certainty, and a different interpretation of the relevant rule would introduce a certain relativity and thus impede the application of the above-mentioned principles.

16.  The Government drew the Court’s attention to the fact that under domestic law, the applicants could not have lodged an appeal against the decision by which D.T. had been convicted unless their civil action had been rejected (and only in respect of that part). In the present case, the applicants’ civil claim had been fully accepted; thus, they could not have lodged an appeal. In any event, it was clear that they disagreed with the acknowledgement of extenuating circumstances in respect of the defendant (that is to say his expression of sincere regret), which however, could not form the basis of an appeal lodged by the civil party. As regards the appeal lodged by the public prosecutor, the Government argued that it had been lodged on behalf of the State and not on behalf of the applicants. In this regard, citing the Court’s judgment in Gorou v. Greece (no. 2) ([GC], no. 12686/03, §§ 39-40, 20 March 2009), they submitted that a “positive” decision by a public prosecutor to a request made by a civil party for him to lodge an appeal is not addressed to the civil party but gives rise to the prosecutor’s own appeal.

17.  The Government submitted that in any event, the applicants had not been deprived of their right of access to a court. Following the defendant’s appeal, a hearing had been conducted by the appellate court in which the applicants had been present and had fully exercised their rights as civil parties.

18.  The applicants contested the above-mentioned arguments. They argued that the dismissal of the appeal lodged by the public prosecutor at their request owing to the fact that it had been lodged by means of a separate document had been excessively formalistic. They submitted that under domestic law, a report merely constitutes proof of an orally made declaration and not a constitutive element of an appeal. Therefore, the dismissal of the appeal had resulted in lowering the legal protection afforded to the parties in the trial, especially given the circumstances of the present case, in which a number of formalities had been completed. In this regard, they invoked the Court’s judgments in Kallergis v. Greece (no. 37349/07, § 21, 2April2009) and in Aepi S.A. v. Greece (no. 48679/99, 11 April 2002). In the former, the Court had considered that the dismissal of a legal remedy because it had been lodged in a separate document, even though it had been dated and signed, had been excessively formalistic. In the latter, the Court had considered that an appeal on points of law which had been lodged by the public prosecutor at the civil party’s request and had erroneously been dismissed as having been lodged out of time had impeded the civil party’s right of access to a court. The applicants therefore claimed that the above-mentioned considerations were directly applicable to their case. Alternatively, they argued that even assuming that the dismissal of the appeal had not been excessively formalistic, their right of access to a court had nevertheless been impeded by the negligence of the public prosecutor and the registrar, who had lodged and accepted the appeal respectively without observing the formal requirements.

2.  The Court’s assessment

19.  The Court notes that the relevant principles with respect to the right of access to a court are set out in a long line of case-law starting with Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and finding recent expression in Baka v. Hungary [GC], no. 20261/12, § 120, ECHR 2016 and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 84-90, ECHR 2016 (extracts).

20.  The Court reiterates, in particular, that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication, since the right of access by its very nature calls for regulation by the State – regulation which may vary in time and in place according to the needs and resources of the community and of individuals (see Stanev v.Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. While the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also Cordova v. Italy(no. 1),no.40877/98, § 54, ECHR 2003‑I; the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, §65, Series A no. 294‑B; and Lupeni Greek Catholic Parish and Others, cited above, §89).

21.  Turning to the circumstances of the present case, the Court notes that the Giannitsa public prosecutor of the Court of First Instance lodged an appeal against decision no. 4-7/2008, following the applicants’ request for him to do so. However, the public prosecutor’s “positive” decision in respect of that request was not addressed to the civil party; rather, it gave rise to the prosecutor’s own appeal (see, mutatis mutandis, Gorou, cited above, § 40). Bearing that in mind, the Court will examine whether the applicants’ right of access to a court was impeded by the dismissal of the public prosecutor’s appeal owing to the fact that it had been lodged by a separate document.

22.  The Court considers that it is not necessary to examine whether the dismissal of the public prosecutor’s appeal by the domestic court was excessively formalistic (as the applicants argued), because the applicants’ complaint is in any event inadmissible for the following reasons.

23.  The Court notes that, irrespective of the dismissal of the public prosecutor’s appeal, a hearing was conducted by the appellate court, which examined the defendant’s appeal, and the applicants were able to attend it. The fact, however, that the applicants were able to bring their civil claim before a court does not in itself necessarily satisfy the requirements of Article 6 § 1. It must still be established that the degree of access afforded under the national legislation was sufficient to secure the individual’s “right to a court”, having regard to the rule of law in a democratic society (see Sotiris and Nikos Koutras ATTEE v. Greece, no. 39442/98, § 19, ECHR 2000‑XII).

24.  In this regard, the Court notes that the applicants were able to declare their presence as civil parties, support the charges against the defendant and be awarded the amount they requested. In addition, the applicants did not put forward any argument that they were impeded from exercising the rights afforded to them by domestic law as civil parties, such as the right to examine witnesses or to have access to the documents contained in the case-file. Their sole complaint appears to be that they were not given the opportunity to argue before the appellate court against the recognition of extenuating circumstances in respect of the defendant, who, in their view, should not have seen his sentence diminished on account of his acknowledgment of regret. In this regard, the Court reiterates that the Convention does not guarantee the right to have criminal proceedings instituted against third persons or to have such persons convicted (see, among many other authorities, Perez v. France [GC], no.7287/99, § 70, ECHR 2004 I, and Krzak v. Poland, no. 51515/99, § 24, 6 April 2004). While, admittedly, the scope of the review by the appellate court would have been different if the public prosecutor’s appeal had been considered admissible and had been examined on the merits, the Court does not see how this could have affected the applicants’ right to bring their civil claim before the domestic court. On the contrary, the Court notes that the applicants did have access to a court as far as their civil claim against D.T. was concerned and they were awarded the full amount they had requested.

25.  The present case is therefore distinguishable from the Court’s judgment in Aepi S.A. (cited above) invoked by the applicant. In particular, in that case the dismissal of the public prosecutor’s appeal on points of law for reasons considered excessively formalistic by the Court led to the non-adjudication of the civil party’s claim; therefore, the Court concluded that there had been a violation of its right of access to a court. On the contrary, in the circumstances of the present case, the applicants’ civil claim was heard and in addition, fully upheld by the appellate court. In view of the above, the Court considers that it is not necessary to examine whether the dismissal of the public prosecutor’s appeal was excessively formalistic. The foregoing considerations are sufficient to enable the Court to conclude that the applicants have not suffered any interference with their right of access to a court and that consequently the essence of their right to a court has not been impaired. This complaint must accordingly be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B.  As regards the lack of reasoning

26.  The applicants complained that the public prosecutor of the Court of Cassation did not give any reasons for his decision not to lodge an appeal on points of law.

27.  The Court notes however that in its judgment in Gorou (cited above) it held the following:

“38.  In the present case the Court notes that, when an acquittal has been decided, under domestic law the civil party is not, in principle, entitled to appeal directly on points of law or to seek redress from the public prosecutor at the Court of Cassation. The Court has nevertheless acknowledged that the existence of an established judicial practice cannot be disregarded in this case and that, in view of the specific features of the applicant’s request to the public prosecutor at the Court of Cassation, Article 6 § 1 of the Convention is applicable. That same practice should be taken into account in assessing the extent of the reasoning to be given by the public prosecutor in his reply.

39.  The Court has already observed that the public prosecutor is accustomed to responding, albeit in a summary manner, to requests from the civil party to appeal on points of law. In practice, the civil party draws the public prosecutor’s attention to certain specific circumstances of the case, while the prosecutor remains free to take his decision after weighing up the arguments submitted.

40.  Moreover, it should be noted that, under Article 506 of the Code of Criminal Procedure, a “positive” decision by a public prosecutor is not addressed to the civil party but gives rise to the prosecutor’s own appeal on points of law. Similarly, a “negative” decision means that the public prosecutor declines to lodge an appeal on points of law himself. The Court further notes that, contrary to the applicant’s assertions, no particular obligation to give reasons arises from the relevant domestic law, because the response of the public prosecutor at the Court of Cassation to the applicant’s request was not issued in the form of an “order” within the meaning of Articles 138 and 139 of the Code of Criminal Procedure (see paragraph 15 above).

41.  Lastly, the Court observes that, as regards the preliminary procedure for the examination and admission of appeals on points of law by an organ operating within the Court of Cassation, it has previously acknowledged that an appellate court is not required to give more detailed reasoning when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success, without further explanation (see Salé v. France, no. 39765/04, § 17, 21 March 2006, and Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II). The Court considers that the same principle may apply in the case of a public prosecutor at the Court of Cassation who is requested by the civil party to lodge an appeal on points of law in his own name.

42.  To sum up, the handwritten note placed on the applicant’s request simply gives information about the discretionary decision taken by the public prosecutor. Seen from that perspective, and having regard to the existing judicial practice, the public prosecutor does not have a duty to justify his response but only to give a response to the civil party. To demand more detailed reasoning would place on the public prosecutor at the Court of Cassation an additional burden that is not imposed by the nature of the civil party’s request for him to appeal on points of law against an acquittal. The Court therefore considers that, by indicating that “[t]here [were] no legal or well-founded grounds of appeal to the Court of Cassation”, the public prosecutor gave sufficient reasons for his decision to reject the request.”

28.  Having regard to the material in its case-file, the Court finds no reason to depart from its previous case-law. It follows that this complaint is manifestly ill-founded and must accordingly be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 July 2018.

Renata Degener                                                                  Kristina Pardalos
Deputy Registrar                                                                       President

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