D.K. v. Greece

The author of the communication is D.K.,⁵ a national of Greece born on 3 October 1946 in Thessaloniki, Greece. The author claims a violation by the State party of his rights under article 14 (1) and (3) (b) of the Covenant. The Optional Protocol entered into force for the State party on 5 August 1997. The author is represented by counsel.

5. The author asked to remain anonymous. ↩

On 5 April 2019, the communication was registered. On 5 June 2019, the State party submitted a request to consider the admissibility of the communication separately from the merits. On 24 March 2020, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to examine the admissibility of the communication together with its merits.

From 1985 to 1990, the author was a professor of international relations at Panteion University. From 1990 to 1995, he was Rector of the University. He was appointed as minister, ad interim, for the press and mass media during the one-month pre-election period leading up to the parliamentary elections in 1996. In March 1997, he was appointed Head of the Permanent Mission of Greece to the Council of Europe. When he finished the latter appointment in 1999, he returned to academia.

In September 1998, the Rectors’ Council of Panteion University initiated an investigation into the financial management of the University. The resulting report, prepared by an accountant, was submitted to the Prosecutor of the Court of Appeals of Athens by the Rectors’ Council. Criminal procedures were initiated against 47 persons, including the author. The author was charged with having committed four felonies under the State party’s Penal Code: accessory to forgery; fraud; misrepresentation; and misappropriation of public funds.⁶ The prosecutor committed 18 defendants, including the author, to stand trial without an intervening examination of the evidence or initial depositions of any of the 47 accused persons or witnesses. The author notes that direct committal to trial has since been abandoned. Now, in all felony cases, three judges meet in chamber and decide whether to proceed to trial or acquit the defendant.

6. No further information was provided. ↩

The case was heard at first instance by a three-member chamber of the Court of Appeal of Athens. On 6 June 2007, the Court found 10 of the defendants guilty and acquitted 7 defendants.⁷ The author was found guilty of misrepresentation, fraud and misappropriation of public funds and sentenced to 14 years of imprisonment. He appealed the judgment (No. 2444/07 of 6 June 2007) and was granted a suspension of the sentence,⁸ pending the hearing of the case on appeal.

7. One of the 18 defendants had died during the trial period. ↩
8. The author immediately appealed the judgment of 6 June 2007. A three-member chamber of the Court of Appeal of Athens suspended the sentence but, initially, the author was forbidden to travel outside the country. On 5 December 2007, the five-member Court of Appeal decided that the author could travel outside the country under two strict conditions: provision of a bail of 50,000 euros and monthly reporting to the police. ↩

On 25 November 2007, the author submitted a complaint to the European Court of Human Rights, claiming that his right to be presumed innocent had been violated by the statements made by the Prime Minister and cabinet ministers who, while his case was pending on appeal, had made a series of incriminating statements against him.⁹ In a decision dated 24 May 2011, the Court found that the author’s rights under article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) had been violated.

9. On 11 June 2007, during a plenary debate in the parliament of Greece, the Prime Minister and the deputy minister of finance had referred to the appeal proceedings and the judgment in question, making accusations of corruption against the members of the opposition party who had testified on behalf of the author. ↩

On 25 June 2012, a five-member chamber of the Court of Appeal of Athens upheld the judgment of the first-instance court. The author began serving his sentence on the same date. He was temporarily released from prison on 15 July 2013, for health reasons.

On 27 June 2012, the author appealed the judgment of the second-instance court to the Supreme Court, in its capacity as the Court of Cassation. He submitted supplementary arguments on 16 April 2014, following the publication of the minutes and the judgment of the second-instance court. The Court of Cassation issued its judgment on 21 December 2015, upholding the judgment of the lower-level courts. Having exhausted all domestic remedies, the author began to serve the remainder of his sentence on 5 February 2016. He was released on 12 April 2017, owing to his poor health. He is barred from travelling outside Greece and may be incarcerated again to serve the remainder of his sentence, should his health improve.

On 27 July 2016, the author made a second complaint to the European Court of Human Rights,¹⁰ which found the author’s complaint inadmissible on 11 May 2017.¹¹

10. No information on the claims of the complaint were provided. ↩
11. The court found the complaint inadmissible in single-judge decision, on the grounds that it did not meet the admissibility criteria of articles 34 and 35 of the European Convention on Human Rights (standard language). No further information was provided on the complaint before the Court. Greece does not have a reservation to article 5 (2) (a) of the Optional Protocol to the Covenant. ↩

The author notes that the minutes of the proceedings before the penal courts in Greece are written in longhand by the Registrar, who keeps the handwritten notes in a book. The notes are later typed and finally certified by the president of the court several months later. The minutes and the reasoning of the court constitute the judgment. The minutes are not accessible during the trial and cannot be checked for accuracy by the defendant until several months, or even years, after the end of the trial. Voice recording during trials is used selectively, and not in all cases. In the author’s case, both the first-instance and secondinstance courts kept the minutes by way of notes written in longhand by the Registrar. The minutes of the first-instance court were published in November 2009, nearly 29 months after the announcement of the verdict. Once the minutes were available, the author noted that statements by key witnesses and evidence offered by him in defence had been misrepresented. The author submitted a petition for correction of the minutes, in accordance with article 145 of the Code of Criminal Procedure. He also submitted a notarized statement by witnesses who confirmed the errors in the transcript. The errors in the transcript included: misrepresentation of the author’s statement on the financial administration of the Rectors’ Council; gaps in the transcription of the author’s statement; and omissions of critical points in the testimony of a witness, who had confirmed that the decision-making process on the budget and financial payments had remained the same at the University for the previous 20 years.

The author’s petition for correction of the minutes was accepted in relation to the statements by the witnesses. However, the rest of the author’s claims concerning the correction of the minutes were rejected owing to the time elapsed since the delivery of the judgment.¹² The author notes that the delay was not attributable to him but to the court.

12. No further information was provided. ↩

In addition to his petition to correct the errors in the minutes, the author also submitted a petition before the Prosecutor of the Supreme Court, claiming that the first-instance court had not allowed him to complete his defence statement.¹³ The Prosecutor referred the complaint to the Prosecutor of the Court of Appeal of Athens, who in turn referred the complaint to the second-instance court that was going to decide on the appeal, for its consideration and action. The author argues that his petition corroborates his claim that he has actively sought the annulment of the first-instance court’s judgment, even though the second-instance court did not record the referral from the Prosecutor of the Supreme Court in the minutes nor did it record the request by the author to annul the judgment of the firstinstance court and to remand the case for retrial.

13. No further information was provided. ↩

On 25 June 2012, the second-instance court rendered its verdict. The minutes were not certified until 21 months later, during which time the defendants, who were serving their sentences, were precluded from having their cases heard by the Court of Cassation. Upon examining the minutes, the author noted that, once again, the minutes were incomplete, as they did not include: (a) his argument before the second-instance court that he had not been allowed by the first-instance court to complete his defence, or his request for the court to annul the judgment of the first-instance court; and (b) his request for the court to take into account the finding of the European Court of Human Rights that his right to be presumed innocent had been violated. The author submitted a petition for the correction of the minutes. The petition has not yet been examined by the second-instance court.

In his appeal before the Court of Cassation, dated 27 June 2012, the author claimed that the failure by the second-instance court to examine his claim that the first-instance court had not allowed him to complete his defence amounted to a violation of his right to defence. In its judgment, the Court of Cassation referred to the minutes from the second-instance court proceedings and noted that it did not appear that the author had raised any relevant claim and that, consequently, there was no obligation for the second-instance court “to reply”. It therefore dismissed the author’s cassation appeal.

The author claims a violation of his right to a fair trial under article 14 (1) and (3) (b) of the Covenant owing to the incomplete minutes of the penal court proceedings and the inability of the defendant to have timely access to accurate and complete recordings of the evidence and testimony presented at the trial. The author had to wait 29 months for the firstinstance court and 21 months for the second-instance court to certify and publish the minutes from their respective proceedings.

He claims that the first-instance court also violated his rights by not allowing him to complete his defence statement or to answer any questions from the prosecutor and the judge.¹⁴

14. No further information or arguments were provided. ↩

The author further claims that the second-instance court did not record in the minutes of its proceedings: (a) the author’s argument before the second-instance court that he had not been allowed by the first-instance court to complete his defence; (b) the author’s request for the court to annul the judgment of the first-instance court, remand the case for retrial and reflect in that context on the finding of the European Court of Human Rights that the author’s right to be presumed innocent had been violated; and (c) the fact of the referral of the author’s petition, regarding a violation of his fair trial rights by the first-instance court, from the Prosecutor of the Supreme Court to the second-instance court.

Finally, the author argues that he could not defend himself against the charges he faced since the arguments offered by him or witnesses before the trial courts were either misrepresented or omitted in the minutes, which prevented the Court of Cassation from examining his claims and arguments. In that context, the author adds that he could not prove that the second-instance court failed to address the claim of a violation of his fair trial rights and of the right to defence, owing to the incompleteness of the minutes. In particular, the author claims that the Court of Cassation was unable to verify the proceedings from the minutes of the second-instance court and thus examine his cassation arguments in a fair manner.

On 5 June 2019, the State party submitted its observations, arguing that the communication is inadmissible for abuse of the right of submission, owing to a lack of sufficient substantiation, and for non-exhaustion of domestic remedies.

The author submitted petition No. 13822 of 20 November 2009 for the correction and completion of the minutes of the proceedings before the first-instance three-member Court of Appeal of Athens, in accordance with article 145 of the Code of Criminal Procedure. In its decision No. 4305/2010 of 13 October 2010, the Court partially accepted the author’s petition. The decision is not subject to any legal remedy. In that regard, the State party argues that almost eight years have elapsed between the issuance of the domestic decision and the submission of the communication to the Committee on 7 June 2018. The communication should be declared inadmissible regarding the complaints based on the alleged incomplete minutes of the proceedings before the first-instance court, as such a delay constitutes an abuse of the right of submission under article 3 of the Optional Protocol.

The State party also submits that more than eight years have elapsed since the submission of the author’s complaints before the Prosecutor and the President of the Supreme Court (Court of Cassation), in which he asserted that he was not allowed to complete his defence statement before the first-instance court. On 19 November 2010, the complaints were referred to the second-instance five-member Court of Appeal of Athens for examination.¹⁵

15. As attested in document No. 11906 of 16 February 2018 by the Prosecutor of the Court of Appeal of Athens. ↩

Almost six years had elapsed since the upholding of the conviction, on 25 June 2012, of the author by the second-instance five-member Court of Appeal of Athens, as at the time of submission of the communication.

In addition, more than four years had elapsed since the submission by the author of petition No. 5986 of 15 April 2014 for the correction and completion of the minutes of the proceedings before the second-instance court in accordance with article 145 of the Code of Criminal Procedure.

In such circumstances, the State party considers that the above delays constitute an abuse of the right of submission under article 3 of the Optional Protocol, as regards key claims by the author.

Furthermore, the State party submits that the Committee is not competent to substitute the findings by the domestic courts as regards evaluation of facts and evidence in a case, unless the evaluation is manifestly arbitrary or amounts to a denial of justice. The issue of whether the minutes of the penal courts’ proceedings were incomplete constitutes a matter of factual assessment.

The alleged inability of the author to have timely access to accurate and complete recordings of the evidence and testimony presented in the minutes of the court proceedings also constitutes a matter of factual assessment. The same applies to the alleged inability of the Court of Cassation to verify the proceedings from the minutes and to exercise in a fair manner its responsibility to examine and decide on the cassation arguments presented by the author. All of the above assertions have been rejected by the competent national courts by fully reasoned judgments. Therefore, the author’s claims involving the re-evaluation of facts and evidence should be declared inadmissible, under article 2 of the Optional Protocol.

In addition, the State party disputes that domestic remedies have been exhausted. As the author admits, his petition, No. 5986 of 15 April 2014, for the correction and completion of the minutes of the proceedings before the second-instance court had not been examined as at the date of submission of the communication to the Human Rights Committee. Instead of trying to find out the reason for such delay and to be properly informed thereof, the author chose to submit the communication. The State party therefore holds that the author did not exercise due diligence in the pursuit of available remedies.¹⁶ It invites the Committee to find that the communication is inadmissible also for non-exhaustion of domestic remedies, according to article 5 (2) (b) of the Optional Protocol.

16. Kandem Foumbi v. Cameroon (CCPR/C/112/D/2325/2013), para. 8.4; and Tonenkaya v. Ukraine (CCPR/C/112/D/2123/2011), para. 7.4. ↩

On 2 August 2019, the author submitted his comments on the State party’s observations.

First, the author rebuts the State party’s allegations of abuse of the right of submission. He argues that there has been no delay of several years as regards the exhaustion of domestic remedies.

He submits that all the petitions,¹⁷ complaints¹⁸ and decisions¹⁹ in his case are indeed milestones of the lengthy procedure before the second-instance five-member Court of Appeal of Athens and a reflection of the late publication of its minutes of the court proceedings, which support the author’s main complaint. He has claimed a violation of his rights of defence because of the omission of the court to keep the minutes of the proceedings by voice recording, as prescribed by the law for felony cases. Such omission deprived him of his right to have a timely and accurate record of the evidence and testimony presented in the trial and deprived the Court of Cassation of a verifiable record on which to exercise its responsibility to examine and decide on the cassation arguments.

17. Petition No. 13822 of 20 November 2009 for the correction and completion of the minutes of the proceedings before the first-instance court, on the basis of which the court partially accepted the author’s claims and corrected and completed the minutes in decision No. 4305 of 13 October 2010; and petition No. 5986 of 15 April 2014 for the correction and completion of the minutes of the proceedings of the second-instance court, containing a complaint that the minutes of the proceedings did not mention that the defendant had asked the court to declare the first-instance court decision of 6 June 2007 null and void as he had been denied the right to complete his defence, and that he had presented the court with the judgment of the European Court of Human Rights dated 24 May 2011, in which that Court had found a violation of the author’s right to a fair trial owing to a violation of presumption of innocence. ↩
18. The author’s petition to the Prosecutor and the President of the Court of Cassation of 20 October 2010, in which he complained that the first-instance court had violated a basic principle of fair trial by denying him the right to complete his defence statement, and the referral by the Prosecutor of the Supreme Court of that complaint on 19 November 2010 to the second-instance court that tried the case on appeal, for its consideration. ↩
19. The decision of the second-instance court, issued on 25 June 2012, and the minutes of the related proceedings, published on 28 March 2014. ↩

He further contends that the second-instance court did not note in the minutes, or in the reasoning of its decision of 25 June 2012, his written complaint to the Prosecutor and the President of the Supreme Court (Court of Cassation) that he had been denied the right to complete his defence statement during the first-instance trial, a lapse verified in the court minutes of the first-instance court. The complaint had been transmitted to the second-instance court by the Prosecutor of the Court of Cassation on 19 November 2010 for its deliberation. The second-instance court also did not note in the minutes that the author himself had presented this argument before that court and that he had requested that the second-instance court annul the first-instance court judgment owing to a violation of the author’s right to defence before the first-instance court; his objections relating to the right to defence had been omitted from the first-instance court minutes.

The author resorted to extraordinary remedies to submit a petition to correct and complete the minutes but to no avail, as that petition was never examined by the secondinstance court. The significance of the omissions is that the Court of Cassation rejected the author’s first cassation arguments, namely that his defence rights had been grossly violated by the first-instance court, which had not allowed him to complete his defence statement, and that the second-instance court, which should have examined his complaint to the Prosecutor of the Court of Cassation and the author’s own claims before that court, had not even recorded those complaints and claims in the minutes and moreover had stated that the defendant had not made the claim of concern to the second-instance court.²⁰ The author underlines that the above procedures are extraordinary remedies and, while exhausted, do not formally represent ordinary remedies that would be available.

20. Decision No. 1342 of the Court of Cassation, issued on 21 December 2015, and the minutes of the proceedings, published on 6 April 2016. ↩

In fact, the exhaustion of domestic remedies occurred on 6 April 2016, when the Court of Cassation made public the minutes of the proceedings and the reasoning of its decision to uphold the author’s conviction by the second-instance court. Since the communication was submitted only two years from the exhaustion of domestic remedies, such delay does not amount to an abuse of the right of submission.²¹ As explained, there was no delay of several years in the submission of the communication following the exhaustion of domestic remedies, the timeline of which the author explained. Such allegations are not substantiated by the facts or the definition of what constitutes exhaustion of domestic remedies.

21. Fillacier v. France (CCPR/C/86/D/1434/2005), para. 4.3. ↩

As regards the alleged lack of the Committee’s competence to evaluate the facts and evidence, the author objects to the State party’s argument that the issue of whether the minutes of the penal court’s proceedings were incomplete constitutes a matter of factual assessment. He claims that it is incomprehensible that a well-established guarantee of criminal procedure that the defendant should have an accurate and complete record of the testimony and evidence presented in the court available to him should be interpreted as “a matter of factual assessment”, in contravention of the Committee’s jurisprudence. The fact that the publication of the minutes of the first-instance and second-instance courts were not timely is substantiated by the delay in their publication by the first-instance court – after 29 months – and by the second-instance court – after 21 months.

The accuracy and completeness of the minutes of the proceedings of the first-instance court were contested by the author and were partially corrected and completed by that court in its decision No. 4305/2010 of 13 October 2010. The Committee is thus not being requested to decide on the facts. On the contrary, it was the decision of the State party’s courts to partially correct and complete the minutes, as requested by the defendant, which is also evidence of the problems occasioned by the lack of verifiable minute-keeping during the penal trial.

Petition No. 5986 of 15 April 2014, submitted by the author to the second-instance court to correct and complete the minutes of the court’s proceedings, represents the exercise of an extraordinary procedural right by the defendant.²² The petition was not examined promptly or before the Court of Cassation ruling, which resulted in a violation of the defendant’s rights. The inability of the Court of Cassation to obtain verifiable minutes of the proceedings of the second-instance court, and exercise in a fair manner its responsibility to examine and decide on the cassation arguments presented by the author, is a denial of justice, but not “an assessment of the facts” of the case. The State party’s objections to the purported re-assessment of the facts and evidence are incorrect and unsubstantiated.

22. In accordance with article 145 of the Code of Criminal Procedure. ↩

The author further objects to the State party’s argument disputing that domestic remedies have been exhausted given that the author’s petition (No. 5986) of 15 April 2014 for the correction and completion of the minutes of the proceedings before the secondinstance court had not been examined as at the date of submission of the communication to the Human Rights Committee. However, that allegation is inconsistent with the State party’s previous argument, whereby the submission of the author’s communication after several years from the exhaustion of domestic remedies is presented as an abuse of the right of submission. One of the domestic remedies listed as exhausted is petition No. 5986. The State party’s objection is unsubstantiated, as the exhaustion of available domestic remedies in fact occurred with the publication, on 6 April 2016, of decision No. 1342 of the Court of Cassation of 21 December 2015, which is irrevocable. Petition No. 5986, as an extraordinary remedy, had not been examined by the date the Court of Cassation announced its decision and was thus superseded by the irrevocable decision of the Court of Cassation.

In conclusion, the author requests the Committee to declare the communication admissible, as it has been submitted in good faith, in a timely manner and observing the requirements set out in articles 2 to 5 of the Optional Protocol. The author holds that his submissions corroborate violations of the right to a fair trial and the right to defence guaranteed by articles 14 (1) and (3) (b) of the Covenant.

On 6 April 2023, the State party submitted its observations on the merits of the author’s communication, asserting that there has been no violation of article 14 (1) and (3) (b) of the Covenant.

As stated in the communication, the author submitted petition No. 13822 of 20 November 2009 for the correction and completion of the minutes of the proceedings before the first-instance three-member Court of Appeal of Athens, in accordance with article 145 of the Code of Criminal Procedure. The Court issued decision No. 4305/2010 on 13 October 2010, by which it partially accepted the above petition. The decision has not been subject to any legal remedy.

The author also submitted complaints to the Prosecutor and the President of the Court of Cassation, claiming that he had not been allowed to complete his defence statement before the first-instance court. On 19 November 2010, the complaints were referred to the secondinstance five-member Court of Appeal of Athens for examination, as indicated in document No. 11906 of the Prosecutor of the Court of Appeal, dated 16 February 2018.

Furthermore, the author submitted to the second-instance court petition No. 5986 of 15 April 2014 for the correction and completion of the minutes of the proceedings, in accordance with article 145 of the Code of Criminal Procedure. As the author claims, the above petition had not been examined by the date of the submission of the communication to the Human Rights Committee.

At the hearing of his case before the Court of Cassation, the author claimed that the procedure before the second-instance court was absolutely null, on the ground that the court had dismissed his claim for declaring the acts of the procedure before the first-instance court null and had repeated them, as his defence statement before the first-instance court had not been concluded. As a result, the author could not refute evidence that arose during the proceedings, an impact that shaped the whole procedure. The Court of Cassation dismissed the above ground as ill-founded, stating that its examination of the minutes of the proceedings before the second-instance court showed that neither the author nor his attorney had submitted a relevant claim and thus there was no obligation of the Court of Cassation to respond.

Moreover, the author claimed that the record of his defence statement in the minutes did not include the answers he had given to questions posed by the attorneys of P.P. (the civil claimant) and the defence lawyers, which were crucial for his defence, and that as a result the court had not assessed the whole body of evidence. The Court of Cassation, following an examination of the minutes of the proceedings before the second-instance court, dismissed the above ground as ill-founded. In particular, it held that the contested judgment indicated that the second-instance court had taken into account, among other things, the defence statement of the author and his co-defendants, including “briefly” recorded answers of the defendants to the questions submitted to them by the parties and their lawyers.

Therefore, there was no inability, as the author alleges, of the Court of Cassation to verify the proceedings from the minutes and thus exercise in a fair manner its responsibility to examine and decide on the cassation grounds presented by the author. As repeatedly noted in the relevant judgment, the Court of Cassation examined the minutes of the proceedings before the second-instance court in order to rule upon the cassation grounds and arguments submitted by the author. The Court of Cassation did not make any reference to the author raising questions as to the accuracy and completeness of the minutes of the proceedings before the second-instance court.

The legal and factual basis for the author’s claims is insufficient and the facts of the case do not reveal a violation of the author’s right, under article 14 (1) of the Covenant, to a fair and public hearing by a competent, independent and impartial tribunal established by law.

On the basis of the evidence of the case, the State party considers that the author was provided with adequate time and facilities for the preparation of his defence and was able to communicate with counsel of his own choosing during the hearing. The national courts gave the author every opportunity to prepare his defence, no restrictions were imposed by the courts, and the author had timely access to accurate and complete recordings of the evidence and testimonies presented in the trials. Therefore, there was no violation of article 14 (3) (b) of the Covenant.

On 7 June 2023, the author submitted his comments on the State party’s observations, and reiterated that the State party has violated his rights under article 14 (1) and (3) (b) of the Covenant.

As stated in the author’s initial communication, the minutes of the proceedings before the penal courts are kept by the Registrar, who writes notes longhand and keeps the handwritten notes in a book. During the trial, the minutes, as recorded by the Registrar, are not accessible and cannot be verified for accuracy and completeness. Parties to the case must await the publishing of the judgment to read the evidence and testimony heard during the proceedings, a process that is vital for the preparation of their defence in appeal or cassation applications.

Although the Code of Criminal Procedure in force at that time contained a provision stipulating the use of a voice recording system, no such system was used during the proceedings for the author’s case in the first- and second-instance courts. The judges for both instances chose to have the Registrars record the entire proceedings in handwritten notes. The State party, in its observations, does not address this issue at all and fails to acknowledge that had a voice recording system been used for the public hearing proceedings, not only would the minutes have been correct and complete, they would have proven that the author’s rights to a fair trial and defence had indeed been violated.

As regards the author’s petition to the first-instance court following his conviction, the author sought to correct and complete the minutes recorded by the Registrar during the hearing. Two years passed before he was able to file his petition to identify inconsistencies and omissions in the minutes. By its decision No. 4305/2010, the first-instance court partially accepted the author’s petition with respect to some of his claims for corrections, which were based on notarized testimonies. However, the court refused to correct the first-instance court minutes for the remaining claims, arguing that several years had elapsed since the verdict and several months had elapsed since the minutes had been certified by the presiding judge of the court. In the author’s view, the State party does not address this delay, but merely states that the court partially accepted the application and that there is no available legal remedy in such cases, which supports the author’s claim that domestic remedies were exhausted in this regard. The delays constituted a violation of the author’s rights to have timely access to the minutes as recorded by the Registrar during his trial, to request their correction and to prepare his defence for the appeals trial.

Prior to the examination of the author’s case on appeal, the author also filed a petition to the Prosecutor of the Cassation Court, claiming that the first-instance court had not allowed him to complete his defence statement. Furthermore, the author has referred to his complaint submitted to the European Court of Human Rights.²³ At the time of the appeal proceedings, the second-instance court had at its disposal both the author’s initial petition for the correction of the minutes, and the judgment of the European Court of Human Rights. The conviction of the author was upheld following the examination of his appeal.²⁴ The minutes of the secondinstance court, which were yet again recorded by the Registrar in the form of handwritten notes taken during the hearing and included in the final text of the judgment, as certified by the presiding judge of the Court, were yet again incomplete and incorrect. The author recalls that the minutes of the appeal proceedings suffered from two omissions,²⁵ and that he submitted a petition for the correction of the minutes of the second-instance court.

23. In its chamber judgment dated 24 May 2011, the European Court of Human Rights held, unanimously, that there had been a violation of article 6 (2) (presumption of innocence) and of article 13 (right to an effective remedy) of the European Convention on Human Rights. ↩
24. Judgment No. 2006/2012 was published in March 2014, 21 months after the end of the appeals trial. ↩
25. The first omission concerned the author’s plea to the five-member chamber of the Court of Appeal to declare the judgment of the three-member chamber of the Court null and void, on the basis of the breach of the defendant’s fundamental right to a defence statement, given that the defence statement had been interrupted and never completed. This breach is verified by the minutes of the first-instance court, and is evidenced by the omissions in the minutes of the second-instance court. The second omission concerned the author’s request to have the judgment of the European Court of Human Rights considered in the appeal proceedings. ↩

The author’s petition for the correction of the minutes of the second-instance court was not examined prior to the hearing of the author’s case before the Court of Cassation, which through judgment No. 1342/2015 ultimately rejected his petition for cassation. The State party, in its observations, merely repeats the reasoning of the Supreme Court and fails to address the author’s complaints.

The Court of Cassation based its rejection of the author’s cassation appeal specifically on the argument that he had not requested the annulment of the first-instance judgment – a conclusion drawn from the Court’s examination of the incorrect and incomplete minutes. The Court had thus, in essence, been unable to verify the proceedings before the second-instance court and had failed to examine and decide on the author’s cassation claims in a fair manner.

The State party further claims that the Court of Cassation held that the second-instance court, in its judgment No. 2006/2012, had taken into account, among other things, the author’s defence statement and those of his co-defendants, including “briefly” recorded answers to questions addressed to them by the parties and their lawyers. However, the State party fails yet again to identify the object of the author’s complaint, namely that the Court of Cassation based its judgment on the incorrect and incomplete minutes of the second-instance court. In its judgment No. 1342/2015, the Court of Cassation explicitly stated that for any answers or statements to be recorded in the minutes, the defendant had to first submit a relevant request. The minutes, which contained an incomplete and inaccurate recording of the proceedings before the second-instance court, therefore did not allow the Court of Cassation to respond to the author’s cassation claims in a fair manner.

The State party accurately observes that the Court of Cassation did not make any reference to the author raising questions as to the accuracy and completeness of the minutes of the proceedings before the second-instance court. Indeed, the Court of Cassation did not refer at all to the author’s complaints regarding the inaccurate and incomplete recording of the proceedings before the second-instance court, even though those complaints were explicitly included in the petition and supplementary memoranda he submitted to the Court of Cassation. In fact, the Court of Cassation failed altogether to examine and address the author’s cassation claims. The author hence rightfully claims there has been a flagrant violation of his right to a fair trial and his right of defence.

Finally, the author submits that the State party omits altogether the judgment by the European Court of Human Rights, in which the Court had found that there had been a violation of the author’s right to the presumption of innocence. Both the second-instance and cassation courts failed to consider the reasoning by the European Court of Human Rights concerning the violation of the presumption of innocence by high-level officials, in particular by the Minister of Justice, and the Court’s comment that the Minister of Justice should have been careful not to say anything that might give the impression that he wished to influence the outcome of a case pending before a competent judicial authority. This provides sufficient legal and factual basis to find a violation of the author’s right to a fair and public hearing by a competent, independent and impartial tribunal, under article 14 (1) of the Covenant.

The author concludes that there has been a violation of his rights under article 14 (1) and (3) (b) of the Covenant, as he did not and could not have timely access to the minutes of either the first-instance or second-instance proceedings in order to raise his complaints promptly. Consequently, the State party’s courts based their decisions on minutes that were incorrect and incomplete.

On 31 July 2023, the State party submitted further observations, recalling its earlier arguments about the inadmissibility and non-substantiation of the author’s claims, supported by evidence.

The author has not successfully challenged any of the arguments or objections raised in the State party’s previous observations. The author repeats vague and unfounded allegations that the minutes of the proceedings before the second-instance court were incomplete and incorrect.

As stated in the State party’s observations on the merits, before the Court of Cassation, the author had claimed that the procedure before the second-instance court was absolutely null, as he had perceived the minutes of those proceedings as incomplete and incorrect. The Court of Cassation dismissed the above claims as ill-founded.

The author inaccurately alleges that the State party admitted that the second-instance court’s judgment “briefly” recorded the defence statements and answers to questions addressed to the defendants. The word “briefly” does not refer to the defence statements of the author and his co-defendants but to the answers of the defendants to the questions submitted to them by the parties and their attorneys.

The State party invites the Committee to give credence to the national courts’ judgments. It is not the Committee’s task to rule upon the validity, completion and accuracy of the above minutes 11 years after the second-instance court issued its judgment and 8 years after the Court of Cassation issued its judgment.

The European Court of Human Rights, in its judgment dated 24 May 2011, found a violation of article 6 (2) of the Convention as regards presumption of innocence, in respect of the proceedings pending before the Athens Court of Appeal (second-instance court), on account of statements made by the Deputy Minister of Finance and the Minister of Justice. Such a finding is not causally linked with the subject matter of the present case and the violations of the Covenant invoked.

The State party invites the Committee to reject the author’s communication as inadmissible and unfounded on the law and on the merits.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

As regards article 5 (2) (a) of the Optional Protocol, the Committee notes the author’s argument that on 25 November 2007, he submitted a complaint to the European Court of Human Rights, which found in its judgment dated 24 May 2011 a violation of the author’s rights under article 6 (2) of the European Convention on Human Rights. The Committee further notes that on 27 July 2016, the author submitted a second complaint to the European Court of Human Rights, which found the author’s application inadmissible on 11 May 2017. The Committee considers that since the same matter is not being examined under another procedure of international investigation or settlement, the requirements of article 5 (2) (a) of the Optional Protocol have been met.

The Committee notes the State party’s argument that the author had abused the right of submission, given that: (a) almost eight years had elapsed between the issuance, on 13 October 2010, of decision No. 4305/2010 on his petition for the correction and completion of the minutes of the proceedings before the first-instance court and the submission, on 7 June 2018, of the communication to the Committee; (b) more than eight years had elapsed since the submission of the author’s complaints to the Prosecutor and the President of the Court of Cassation, which were referred to the second-instance court on 19 November 2010 for examination; (c) almost six years had elapsed since the second-instance court had upheld the conviction, on 25 June 2012; and (d) more than four years had elapsed since the submission of the author’s petition (No. 5986 of 15 April 2014) for the correction and completion of the minutes of the proceedings before the second-instance court (see paras. 4.2–4.6 above). The Committee, however, observes that, as raised by the author, the Court of Cassation made public the minutes of the proceedings and the reasoning of its decision to uphold the author’s conviction on 6 April 2016, and that the author submitted his communication to the Committee within two years of obtaining access to the Supreme Court’s judgment, that is, within two years of having exhausted domestic remedies. Therefore, the two-year delay in submitting the communication does not amount to an abuse of the right of submission.²⁶ In the light of the above, the Committee considers that it is not precluded from considering the author’s claims by the requirements of article 3 of the Optional Protocol.

26. Fillacier v. France (CCPR/C/86/D/1434/2005), para. 4.3. ↩

The State party also raised the objection that the author has not exhausted all available domestic remedies, because his petition (No. 5986 of 15 April 2014) for the correction and completion of the minutes of the second-instance court had not yet been examined at the time of submission of the communication to the Committee. In that context, the author held that the objection was inconsistent with the State party’s preceding argument that the author had submitted his communication several years after the exhaustion of domestic remedies, in which context the State party considered petition No. 5986 to have been exhausted. The author also submitted that the objection was unsubstantiated, because the exhaustion of available domestic remedies in fact had occurred with the publication of the irrevocable decision (No. 1342) of the Court of Cassation dated 6 April 2016, and that the first-instance court, in its decision No. 4305/2010, had partially accepted petition No. 13822 submitted by the author, and that the decision of the first-instance court was not subject to any further appeal. The Committee observes that the author submitted several petitions for the correction and completion of the minutes of both the first-instance and the second-instance courts and a complaint to the Prosecutor and the President of the Supreme Court, and that petition No. 5986, as an extraordinary remedy, had not yet been examined when the Court of Cassation announced its decision, on 21 December 2015. In the light of the above, Committee considers that the delay in examination of petition No. 5986 cannot be attributed to the author, and that the examination thereof was superseded by the irrevocable decision of the Court of Cassation of 21 December 2015, issued on 6 April 2016. Therefore, the Committee considers that the author has exhausted available domestic remedies, in accordance with the requirements of article 5 (2) (b) of the Optional Protocol.

The Committee also notes the State party’s objection that the Committee is not competent to substitute the findings by the domestic courts as regards evaluation of facts and evidence, unless the evaluation is manifestly arbitrary or amounts to a denial of justice. The State party requested that the author’s claims involving the re-evaluation of facts and evidence be declared inadmissible, under article 2 of the Optional Protocol. The Committee notes the State party’s argument that (a) the issue of completeness of the minutes of the penal courts’ proceedings, (b) the alleged inability of the author to have timely access to accurate and complete recording of the evidence and testimony presented in the minutes and (c) the alleged inability of the Court of Cassation to verify the proceedings from the minutes and to exercise in a fair manner its responsibility to examine and decide on the cassation arguments all constitute factual assessments. The Committee, however, observes the author’s claims that the lack of timely access to the precise minutes from the criminal proceedings deprived him of the right to defence and fair trial guarantees. The Committee further observes that the author’s claims have been considered by the competent national courts and that the minutes from the criminal proceedings concerned were partly rectified by the first-instance court. The Committee considers that the author’s claims regarding the contents of the minutes, as they concern the facts and evidence (what they convey or should have stated), are inadmissible under articles 2 and 3 of the Optional Protocol. However, the Committee considers the author’s claims in relation to his timely access to accurate and complete minutes from the proceedings, in the context of fair trial rights under article 14 (1) and (3) (b), as sufficiently substantiated. Accordingly, the Committee declares this part of the author’s claims admissible, and proceeds to the examination of those claims on the merits.

The Committee has considered the case in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claims, among others, that the omission of the court to keep the minutes of the proceedings by voice recording, as prescribed by the law for felony cases, the outdated practice of the registrar keeping the minutes in longhand, and the late publication of the minutes of the proceedings by the first-instance and second-instance courts, without access to the minutes during the trial, have violated the author’s rights of defence and of a fair trial before an impartial and independent tribunal. The author further claims that the failure to have a timely and accurate record of the evidence and testimony presented in the trial was an omission that also deprived the Court of Cassation of a verifiable record on which to base the exercise of its responsibility to examine and decide on the cassation arguments.

The Committee observes that the minutes of the proceedings were published some 29 months after the first-instance judgment, and 21 months after the second-instance judgment. Following the author’s petition of November 2009 for correction, the minutes of the firstinstance court’s criminal trial were only partially rectified by that court regarding the author’s and witness’ statements, while the rest of the author’s requests for correction were rejected by the first-instance court with the reasoning that the petition for correction had been submitted a long time after the publication of the judgment (see para. 2.9 above). The Committee notes that domestic authorities accepted the submission of the requests of the author to have the trial minutes corrected, and they neither rebutted the substance of the claims nor commented on the practice of keeping handwritten notes by the registrar instead of using voice recordings.

The Committee recalls its jurisprudence that adequate resources provided to defendants for the preparation of their defence should include access to documents and other evidence. Such resources should include any material that the prosecution plans to present to the court against the defendant or that is exculpatory. Such material includes not only documents that prove the innocence of the accused, but also other evidence that may help the defence.²⁷ With regard to the availability of the trial minutes or transcript, the Committee recalls that under article 14 of the Covenant, the State party should provide the convicted person with access to the judgments and documents necessary to enjoy the effective exercise of the right to defence, including the full and verified transcripts or records of the judicial proceedings²⁸ and the right to appeal.²⁹ The Committee is, therefore, of the opinion that the State party violated its obligations under article 14 (3) (b) of the Covenant by failing to secure for the author the adequate time and facilities for the preparation of his defence, in particular by not ensuring him timely access to accurate and complete trial minutes of the courts of both instances, including in the context of his cassation appeal, which limited the author’s ability to defend himself against the charges he faced, since the arguments offered by him and witnesses before the trial courts could not be verified. Given the obstacles faced by the author in gaining access to complete and verified transcripts of the judicial proceedings in a timely manner, the Committee concludes that the State party has violated the author’s right to defence, pursuant to article 14 (3) (b) of the Covenant. In the light of this finding, the Committee will not consider the author’s claims under article 14 (1) separately.

27. General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 33. See also Esergepov v. Kazakhstan (CCPR/C/116/D/2129/2012), para. 11.4. ↩
28. See, for example, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.10. ↩
29. See, for example, Lumley v. Jamaica (CCPR/C/65/D/662/1995), para. 7.5. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 14 (3) (b) of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to take appropriate steps to provide the author with adequate compensation for the violation of his rights. The State party is also under the obligation to take all steps necessary to prevent similar violations from occurring in the future, including by promoting the use by the judicial system of a more timely and accurate way to record minutes of criminal trials and ensuring timely access to them.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.