Is Cassation Limited by Law a Bar to Effective Justice?

[Evangelos Stasinopoulos is currently a Judge at the Athens Court of First Instance, Greece]

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The present article provides an analysis of the provisions regarding the right to appeal to the Supreme Court of Greece (called ‘Areios Pagos’), which have been deemed as a bar to the effective justice delivery system by the European Court of Human Rights [“ECtHR”].

To initiate the discussion, I shall be delving into general provisions regarding the right to appeal rested with Greek citizens in criminal matters. This would help the readers better appreciate the limitations placed on the right to appeal to the Supreme Court under the Greek Code of Criminal procedure [“the Code”]. Following this, I shall discuss the boundaries of the right to appeal before the Supreme Court and what the ECtHR had to say about it.

According to Article 489 of the Code, a convicted person or the public prosecutor, as the case may be, has the right to appeal in the following situations:

  1. Against the decision of the Magistrate’s Court if the accused has been sentenced to more than forty days in custody or to a fine of more than one thousand euros or to compensation or financial compensation to a civil claimant over one hundred euros in total;
  2. Against the decision of a single-member Court of First Instance if the accused has been sentenced to imprisonment for more than three months or to a fine of more than two thousand euros or if he has been awarded any compensation and satisfaction in excess of two hundred and fifty euros as a whole;
  3. Against the decision of the three-member Court of First Instance and the decision of the Court of Appeal for misdemeanors if the accused has been sentenced to imprisonment for more than five months or to a fine of more than three thousand euros or to any penalty involving the deprivation of civil rights or a disqualification from a public municipal or community service or to a penalty involving the imposition of another suspended sentence of more than five months or compensation and financial compensation to the plaintiff for more than five hundred euros as a whole;
  4. Against the decision of the single-member and three-member juvenile court, whereby the minor was sentenced to confinement to a special detention facility for young people or to a reformatory or therapeutic measures,
  5. Against the decision of a single-member or three-member juvenile court with which the minor who at the time of the act had reached the age of fifteen years but was tried after reaching his 18th year of age;
  6. Against the decision of the Grand Jury (“Cour d’ Assises”) and the three-member or one-member Court of Appeal, in which the accused has been sentenced to a custodial sentence of at least three years for a felony or at least two years for a misdemeanour.

The aforementioned provisions majorly deal with the general right to appeal warranted to a Greek citizen under the Code. Now I shall discuss the right to appeal to the Supreme Court.

The Code under Articles 482 et. seq. and 504 et. seq. provides that the legal remedy for an appellant to bring a matter before the Supreme Court is cassation. The Court of cessation, present in some countries, inter alia, France, Greece is generally the highest judicial body, which deals only in the questions of law and not the questions of facts. The questions of facts cannot be re-examined by Court of cassation.

By virtue of cassation powers, the right to appeal to the Supreme Court, in criminal matters, is provided in three instances:

  1. Against an indicting decision of the judicial council if, the defendant is charged with a serious crime; or
  2. Against a decision of the Court of First Instance that cannot be appealed before an Appellate Court; or
  3. Against a decision of the Appellate Court.

As a rule, the Greek Supreme Court considers only errors of law, those mentioned exclusively in the Code of Criminal Procedure. According to Article 510 of the Code, the ground of cassation could be proposed only for the following occurrences:

  1. Non-observance of provisions regarding information on procedural rights: Article 171 of the Code provides that non-observance of the provisions regarding informing the accused of his rights on the appearance, the representation and the defence would lead to the nullity of the proceedings. The grounds of nullity mentioned under Article 171 are absolute;
  2. Explicit denial of rights to the accused: Article 170 of the Code provides that the proceedings before any court are null and void when the court rejects or omits to decide on the request of the accused to exercise his right explicitly prescribed by the law;
  3. A relative nullity in the case proceedings (Article 170);
  4. Violation of rights granted under Article 173 of the Code. It provides that the grounds of absolute nullity shall be pleaded until the referral to trial is final;
  5. Violation of the principle of public meeting;
  6. If the judgment is not in the form of a speaking order. Article 93 of the Greek Constitution warrants that every court judgment must be specifically and thoroughly reasoned and must be pronounced in a public sitting. Also, publication of the dissenting opinion is a must.
  7. Misapplication and misinterpretation of any substantive criminal law provision;
  8. Violation of the principle of res judiciata provided under Article 57 of the Code;
  9. Lack of jurisdiction with the lower court;
    • When the court lacked ratione materiae jurisdiction;
    • Resolution of a preliminary matter by a criminal court, when the jurisdiction over such a matter rests with a civil court;
    • Convicting a person for a crime for which no case was filed (Articles 41 and 46 of the Code);
    • Convicting a person for a crime for which there was no prosecution permissible under Article 54 of the Code;
    • A situation where the surrender of an arrested person was not explicitly permitted by the Code (See Article 438 of the Code).

These provisions are applicable irrespective of the result of the proceedings in the lower court. Meaning thereby, an appeal can be referred to the Supreme Court in cases of either acquittal or conviction in the lower court (See Article 512 of the Code).

Additionally, no special permission is required to apply to the Supreme Court, hence there are no filtering procedures. Cassations which are deemed to be inadmissible for formal reasons (i.e. lodging by non-entitled persons or against decisions which cannot be challenged, etc.) are judged by the Supreme Court in camera after hearing the Public Prosecutor and the parties concerned (Articles 476, 513 in the Code of Criminal Procedure).

If we briefly talk about the civil law, the Greek civil procedural law also provides that the available remedy before the Supreme Court is cassation. Conditions for filing a cassation are minutely provided for in the Code of Civil Procedure (Articles 552-560, 562, 564, 566, Greek Code of Civil Procedure). Similar to the criminal law, no special permission is required to lodge a cassation before the Supreme Court in civil matters and there is not a procedure of filtering. As a general rule, all final judgments of the civil courts are subjected to a review by cassation, as long as there are no longer subjected to an opposition against default or an appeal. Grounds for cassation are limited and exclusively mentioned in the Code of Civil Procedure. Each ground shall be sufficiently concretized otherwise, the case is dismissed. Cassations are entertained by the civil panels of Supreme Court and a reporting judge is appointed in order to file a brief report, accessible to the parties, with the court at least 8 days before the public hearing.

Against this backdrop, a significant judgment happened in the European Court of Human Rights. The ECtHR has held that Greece has violated the right to a practical and effective access to a court by strict interpretation by the Supreme Court of the rules concerning formal procedural pre-requisites for the admissibility of cassation.[1] This judgment bears a huge impact on the Greek legal system and it provides an insight that over-limiting the right to appeal to the Supreme Court may not be appreciated by the ECtHR and is considered a breach of rule of law.

[1] Lionarakis v. Greece, Application No 1131/2005.

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