Article 6 of the ECHR does not apply to Claims for the Revocation of the Code of Criminal Procedure
Kokkonis and Chalilopoulou v. Greece 23/11/2017 (application nos. 76386/11 and 76408/11)
The applicants were convicted at first instance by a court in Patras for theft. They appealed, demanded a postponement, and then convicted as present with a reduced sentence, although they did not appear in the Appeals Court. They then filed an Application for the annulment of the proceedings (Article 341 CCP) to annul the proceedings of the Court of Appeal which convicted them, which was dismissed as inadmissible on the grounds that they could only apply if the defendants had been tried in absentia and not tried ‘as present’.
They then applied before the ECtHR for complaints of violations of Articles 6.13 and 14 of the ECHR.The Court came to the conclusion that Article 6 (right to a fair trial) did not apply to the proceedings brought by the applicants, namely an application for annulment under Article 341 of the Greek Code of Criminal Procedure. Under that provision, the domestic court’s task was not to determine the
criminal charge but to examine whether the conditions for granting an annulment and a retrial were satisfied. The Court underlined that, under its case-law, Article 6 did not apply to proceedings to reopen a criminal case
The applicants, Zois Kokkonis and Nikolitsa Chalilopoulou, a married couple, are Greek nationals who
were born in 1964 and 1968 respectively and live in Patra (Greece).
The applicants had been convicted in their absence in January 2009 of theft committed jointly, and
sentenced to twelve months’ imprisonment. They lodged an appeal, which was scheduled to be
heard on 15 February 2011 by the Patras Court of Appeal. However, on that date, they applied for an
adjournment of the hearing, as their lawyer could not be present, and the hearing was rescheduled
for 3 May 2011. Neither the applicants nor their lawyer attended the hearing on that date. The
Patras Court of Appeal, taking into account that the applicants had been present on 15 February
2011, considered that it was “as if they were present”. The court thus examined their appeal and
changed their sentence to ten months’ imprisonment.
The applicants subsequently applied for the annulment of the proceedings, arguing that they had
been prevented from attending the hearing or informing the court of their absence due to an acute
illness of Mr Kokkonis. The Patras Court of Appeal heard their applications and, on 25 May 2011,
dismissed them as inadmissible. It held in particular that an application for annulment (under Article
341 of the Code of Criminal Procedure) could only be lodged if the defendants had been tried in
their absence, and not when they had been tried “as if they were present”.
THE DECISION OF THE COURT
As to the scope of the case, the Court underlined that the complaint before it concerned the
proceedings before the domestic Court of Appeal leading to its decision of 25 May 2011, not the
applicants’ conviction in their absence as such.
Under the relevant principles of the Court’s case-law1 Article 6 did not apply to proceedings to
reopen a criminal case, given that a person who made such a request and whose sentence had
become final was not “charged with a criminal offence” within the meaning of Article 6. The Court
observed that in proceedings under Article 341 of the Greek Code of Criminal Procedure, which was
at stake in the applicants’ case, the domestic court’s task was not to determine the criminal charge
but to examine whether the conditions for granting an annulment and a retrial were satisfied. The
Court therefore considered that the remedy under Article 341 of the Code of Criminal Procedure
was akin to proceedings to reopen a criminal case.
Consequently, Article 6 did not apply to the proceedings in question brought by the applicants. That
part of their application was therefore incompatible ratione materiae with the provisions of the
Convention and had to be rejected in accordance with Article 35 (admissibility criteria).
The Court also declared inadmissible the applicants’ complaints under Article 13 and Article 14. It
noted that Article 13 applied only where an individual had an arguable claim to be a victim of a
violation of a Convention right. Having regard to its findings under Article 6 the Court did not find
that the applicants had an arguable claim. Since Article 14 was not autonomous, and Article 6 was
not applicable, Article 14 did not apply in the case (echrcaselaw.com editing).