Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, GREECE; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.24-15264 (E) 151024 161024
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3582/2019*, **, ***
Communication submitted by:
D.K. (represented by counsel, Yannis N.
Ktistakis1)
Alleged victim:
The author
State party:
Greece
Date of communication:
2 June 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to the
State party on 5 April 2019 (not issued in
document form)
Date of adoption of Views:
19 July 2024
Subject matter:
Right to a fair trial
Procedural issues:
Admissibility
–
abuse
of
submission;
substantiation of claims; exhaustion of domestic
remedies
Substantive issues:
Right to a fair trial; right to defence
Article of the Covenant:
14 (1) and (3) (b)
Articles of the Optional Protocol:
2, 3 and 5 (2)
1.1
The author of the communication is D.K.,2 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.
1.2
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
* Adopted by the Committee at its 141st session (1–23 July 2024).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah
Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** Individual opinions by Committee members Carlos Gómez Martínez (dissenting) and José Manuel
Santos Pais (partially dissenting) are annexed to the present Views.
1 On 12 February 2021, the author submitted that the legal counsel had been replaced by Clio
Papapantoleon, attorney-at-law.
2 The author asked to remain anonymous.
United Nations
CCPR/C/141/D/3582/2019
International Covenant on
Civil and Political Rights
Distr.: General
7 October 2024
Original: English
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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.
Facts as submitted by the author
2.1
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.
2.2
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.3
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.
2.3
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.4 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,5 pending the
hearing of the case on appeal.
2.4
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.6 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.
2.5
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.
2.6
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
3 No further information was provided.
4 One of the 18 defendants had died during the trial period.
5 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.
6 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.
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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.
2.7
On 27 July 2016, the author made a second complaint to the European Court of Human
Rights,7 which found the author’s complaint inadmissible on 11 May 2017.8
2.8
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
second-instance 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.
2.9
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.9 The author notes that the delay was not attributable to him but to the court.
2.10 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. 10 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
first-instance court and to remand the case for retrial.
2.11
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.
7 No information on the claims of the complaint were provided.
8 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.
9 No further information was provided.
10 No further information was provided.
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2.12
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.
Complaint
3.1
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
first-instance court and 21 months for the second-instance court to certify and publish the
minutes from their respective proceedings.
3.2
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.11
3.3
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.
3.4
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.
State party’s observations on admissibility
4.1
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.
4.2
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.
4.3
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
11 No further information or arguments were provided.
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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.12
4.4
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.
4.5
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.
4.6
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.
4.7
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.
4.8
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.
4.9
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.13 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.
Author’s comments on the State party’s observations on admissibility
5.1
On 2 August 2019, the author submitted his comments on the State party’s
observations.
5.2
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.
12 As attested in document No. 11906 of 16 February 2018 by the Prosecutor of the Court of Appeal of
Athens.
13 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.
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5.3
He submits that all the petitions,14 complaints15 and decisions16 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.
5.4
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.
5.5
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
second-instance 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.17
The author underlines that the above procedures are extraordinary remedies and, while
exhausted, do not formally represent ordinary remedies that would be available.
5.6
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.18 As explained, there was no delay of several
years in the submission of the communication following the exhaustion of domestic remedies,
14 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.
15 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.
16 The decision of the second-instance court, issued on 25 June 2012, and the minutes of the related
proceedings, published on 28 March 2014.
17 Decision No. 1342 of the Court of Cassation, issued on 21 December 2015, and the minutes of the
proceedings, published on 6 April 2016.
18 Fillacier v. France (CCPR/C/86/D/1434/2005), para. 4.3.
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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.
5.7
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.
5.8
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.
5.9
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.19 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.
5.10
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
second-instance 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.
5.11
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.
State party’s observations on the merits
6.1
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.
19 In accordance with article 145 of the Code of Criminal Procedure.
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6.2
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.
6.3
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
second-instance 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.
6.4
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.
6.5
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.
6.6
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.
6.7
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.
6.8
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.
6.9
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.
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Author’s comments on the State party’s observations on the merits
7.1
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.
7.2
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.
7.3
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.
7.4
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.
7.5
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.20 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. 21 The minutes of the
second-instance 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,22 and
that he submitted a petition for the correction of the minutes of the second-instance court.
20 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.
21 Judgment No. 2006/2012 was published in March 2014, 21 months after the end of the appeals trial.
22 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.
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7.6
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.
7.7
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.
7.8
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.
7.9
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.
7.10
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.
7.11
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.
State party’s further observations
8.1
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.
8.2
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.
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8.3
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.
8.4
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.
8.5
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.
8.6
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.
8.7
The State party invites the Committee to reject the author’s communication as
inadmissible and unfounded on the law and on the merits.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
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.
9.2
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.
9.3
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
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submitting the communication does not amount to an abuse of the right of submission.23 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.
9.4
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.
9.5
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.
Consideration of the merits
10.1
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.
10.2
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,
23 Fillacier v. France (CCPR/C/86/D/1434/2005), para. 4.3.
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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.
10.3
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 first-instance 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.
10.4
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.24 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
proceedings25 and the right to appeal.26 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.
11.
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.
12.
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.
13.
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
24 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.
25 See, for example, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.10.
26 See, for example, Lumley v. Jamaica (CCPR/C/65/D/662/1995), para. 7.5.
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GE.24-15264
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.
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Annex I
[Original: Spanish]
Individual opinion by Carlos Gómez Martínez, member of the
Committee (dissenting)
1.
In paragraph 10 (4) of its Views, the Committee concludes that the State party violated
its obligations under article 14 (3) (b) of the Covenant by failing to secure for the author
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.
2.
Not every infringement of a procedural rule gives rise to a violation of the right of
defence; for this to occur, it is necessary to prove that there has been a material infringement
of the right of defence. In this regard, it should be recalled that the right recognized in article
14 (3) (b) of the Covenant is intended to prevent any infringement of the right of defence. I
consider that such an infringement has not been shown to have occurred in the present case.
3.
Although the minutes of the first-instance court were delivered late, the author had
access to them before filing his appeal (see para. 2.6).
4.
As to the alleged incompleteness of the minutes, the State party points out that, before
the Court of Cassation, the author had already claimed that the minutes were incomplete
because the minutes of the second-instance court did not include the defence statement
containing his answers to the questions put by the civil claimant’s lawyers and defence
counsel, and that these questions were crucial to his defence, with the result that the
second-instance court did not assess the whole body of evidence (see para. 6.6).
5.
The State party goes on to affirm that the Court of Cassation, following an
examination of the minutes of the proceedings before the second-instance court, dismissed
the claim that they were incomplete, as the author of the communication had argued. As
stated in paragraph 6.6 of the Views, the Court of Cassation had already addressed this issue
and found 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.
6.
Moreover, according to the State party’s observations, the Court of Cassation did not
make reference to anything that might raise doubts about the accuracy and completeness of
the minutes of the proceedings (see para. 6.7), and the Court of Cassation dismissed the
author’s claim that the minutes were incomplete (see para. 8.3).
7.
The Committee cannot disregard such categorical findings as those of the Court of
Cassation of Greece and simply accept the author’s assertion that the minutes were
incomplete. This assertion forms the basis of his claim and has not been proven, which
deprives his complaint of any basis.
8.
I therefore consider that the present complaint was not duly substantiated and that,
consequently, it should have been considered inadmissible under article 2 of the first Optional
Protocol to the International Covenant on Civil and Political Rights.
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Annex II
[Original: English]
Individual opinion by Committee member José Manuel Santos Pais,
(partially dissenting)
1.
I concur with the finding of a violation of the author’s rights under article 14 (3) (b)
of the Covenant. I regret, however, that the Committee decided not to consider the violation
of the author’s rights also under article 14 (1).
2.
The present communication concerns a professor of international relations at the
Panteion University who, from 1990 to 1995, acted as its Rector. The author held other public
offices (see para. 2.1 of the Views).
3.
Following a criminal investigation into the financial management of the University,
the author was found guilty of misrepresentation, fraud and misappropriation of public funds
and sentenced to 14 years of imprisonment in June 2007.
4.
He appealed the first-instance judgment and was granted a suspension of the sentence,
pending the hearing of the case on appeal (see para. 2.3 of the Views).
5.
In June 2012, the Court of Appeal 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 (see para. 2.5 of the Views).
6.
In June 2012, the author appealed the judgment of the second-instance court to the
Supreme Court, as a Court of Cassation. The Supreme Court issued its judgment in December
2015, upholding the judgment of the lower-level courts.
7.
The author began to serve the remainder of his sentence in February 2016. He was
released in April 2017, owing to his poor health. He is however barred from travelling outside
Greece and may be incarcerated again, should his health improve (see para. 2.6 of the Views).
8.
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. 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.
9.
In the author’s case, both the first-instance and second-instance courts kept the
minutes by way of notes written by the Registrar in longhand. The minutes of the
first-instance court were published in November 2009, nearly 29 months after the
announcement of the verdict.
10.
Once the minutes were available, the author noted that statements by key witnesses
and evidence offered by him had been misrepresented. He therefore submitted a petition for
correction of the minutes (see para. 2.8 of the Views), which was accepted in relation to the
statements by witnesses; however, the rest of the author’s claims were rejected owing to the
time elapsed since the delivery of the judgment (see para. 2.9 of the Views).
11.
The author also submitted a petition to the Prosecutor of the Supreme Court, claiming
that the first-instance court had not allowed him to complete his defence statement. The
complaint was referred to the Prosecutor of the Court of Appeal, who in turn referred the
complaint to the second-instance court that was going to decide on the appeal. However, the
second-instance court did not record this referral in the minutes, nor did it record the request
by the author to annul the judgment of the first-instance court and remand the case for retrial
(see para. 2.10 of the Views).
12.
On 25 June 2012, the second-instance court rendered its verdict. The minutes,
however, were not certified until 21 months later.
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13.
Upon examining the minutes, the author noted that, once again, they were incomplete,
namely as they did not include his argument that he had not been allowed by the first-instance
court to complete his defence, nor did they include his request for the court to annul the
judgment of the first-instance court. The author therefore submitted a petition for the
correction of the minutes, but the petition was not examined by the second-instance court
(see para. 2.11 of the Views).
14.
In his appeal before the Court of Cassation, the author observed 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 (see para. 2.12 of the
Views).
15.
The author had to wait 29 and 21 months, respectively, for the first-instance and
second-instance courts to certify and publish the minutes from their respective proceedings.
Such delays significantly affected his rights of defence, in terms of the incomplete minutes
of the penal court proceedings and the inability for him to have timely access to accurate and
complete recordings of the evidence and testimony presented at both trials (see para. 3.1 of
the Views).
16.
Such delays and the lack of a voice recording system also affected the ability of the
Court of Cassation to decide the case (see para. 5.3 of the Views). In fact, when the decision
of the Court of Cassation was issued in December 2015, the court of appeal had not – and
still has not – addressed the author’s petition for the correction of the minutes of the
proceedings before the second-instance court, a situation that, naturally, had an impact on the
decision of the Court of Cassation.
17.
I would therefore have concluded for a violation of the author’s right to a fair trial
under article 14 (1) of the Covenant.
18.
Moreover, the author should be entitled to a retrial by the Court of Cassation once the
second-instance court addresses his petition for the correction of the minutes of the
proceedings before the latter court.