Can the delay in the trial of a prisoner’s appeal lead to a higher penalty due to a conditional early release?
JUDGMENT
Fırat v. Greece 9.11.2017 (no. 46005/11)
SUMMARY
The case concerned criminal proceedings relating to the conviction of a migrant smuggler who
complained, firstly, of the length of the criminal proceedings before the Court of Appeal and the lack
of a remedy by which to assert that complaint, and secondly, of having served a longer sentence
than should have been the case because of the duration of the appeal proceedings following the
lengthy adjournment of the hearing.
The Court began by referring to its case-law established in Michelioudakis v. Greece2
, and held that the length of the criminal proceedings in the present case – a little over four years across two levels
of jurisdiction – had been excessive. It also held that Mr Fırat had not had an effective remedy by
which to assert his complaint.
The Court went on to find that the exercise of Mr Fırat’s right of appeal had not been at the cost of
his liberty. Even if the Court of Appeal had held a hearing and given a ruling on the date originally
scheduled, the conditions required under the Criminal Code in order to be granted conditional
release – to have served three-fifths of the sentence – would not have been satisfied.
PROVISIONS
Article 2 of Protocol. 7
Article 6 § 1
Article 13
PRINCIPAL FACTS
The applicant, Celal Fırat, is a Turkish national who was born in 1980. At the time the application was
lodged he was being detained in Thessaloniki Prison (Greece).
On 22 March 2008 Mr Fırat was arrested for illegally transporting irregular migrants into Greece and
causing a shipwreck that placed their lives in danger. He was remanded in custody on 24 March
2008. On 15 October 2008 he was sentenced at first instance to 10 years and six months’
imprisonment.
On 20 October 2008 the applicant lodged an appeal which did not have suspensive effect. The
hearing, originally scheduled to take place on 4 November 2010, was adjourned twice and was
eventually held on 7 June 2012. On conclusion of the hearing Mr Fırat was sentenced to seven years
and two months’ imprisonment. The Court of Appeal deducted from that sentence the period of six
months and 23 days which the applicant had spent in pre-trial detention. At the request of the
governor of Thessaloniki Prison, the Indictment Division ordered his conditional release on 5 July
2012.
THE DECISION OF THE COURT
Article 6 § 1 (right to a fair trial within a reasonable time) and 13 (right to an effective
remedy)
The proceedings had commenced on 22 March 2008 – the date of Mr Fırat’s arrest – and concluded
on 7 June 2012, the date of the appeal judgment. They had lasted for a little over four years across
two levels of jurisdiction. Mr Fırat had lodged his appeal on 20 October 2008 and the case had been
set down for hearing on 4 November 2010, more than two years later. The hearing had subsequently
been adjourned twice for reasons beyond the applicant’s control. Referring to its Michelioudakis
case-law, the Court found that the length of the proceedings had been excessive. It also noted that
Mr Fırat had not had an effective remedy by which to secure enforcement of his right to have his
case heard within a reasonable time. Accordingly, there had been a violation of Articles 6 § 1 and
13 of the Convention.
Article 2 of Protocol No. 7 to the Convention (right of appeal)
Mr Fırat argued that, since the appeal hearing had taken place a long time after he lodged his
appeal, he had been kept in detention for longer than would have been the case had the hearing
taken place sooner.
On 15 October 2008 Mr Fırat had been sentenced to 10 years and six months’ imprisonment. Any
appeal against that judgment lacked suspensive effect. On 20 October 2008 he had lodged an
appeal, which had been heard on 7 June 2012. Following consideration of his appeal, his sentence
had been reduced to seven years and two months’ imprisonment. On 5 July 2012 he had been
granted conditional release after the Indictment Division found that, as of 13 June 2012, he had
served four years, two months and 21 days, equivalent to over a third of the sentence handed down.
Hence, according to the Indictment Division, taking into account the 587 days the applicant had
worked in prison, he had, by the same date, served five years, nine months and 31 days, equivalent
to three-fifths of his sentence.
Mr Fırat, a Turkish national who had been charged with smuggling irregular migrants, had no ties
with Greece and had not been resident in that country. For that reason the first-instance court had ruled that any appeal he might lodge would not have suspensive effect. Since Mr Fırat had lodged an appeal which lacked suspensive effect, no ruling could be made on his conditional release until after the appeal court judgment. An application for conditional release was possible only on the basis of
Article 105 of the Criminal Code, that is to say, with reference to the portion of the sentence already
served. The appeal hearing, which had been adjourned twice, had taken place on 7 June 2012 and
the Court of Appeal had given a ruling on that date. That was the date taken into account by the
Indictment Division in calculating the length of Mr Fırat’s detention for the purposes of his
conditional release.
The Court noted that, even if the Court of Appeal had held a hearing and ruled on the date originally
scheduled, namely 4 November 2010, the requirements to be met under Article 105 of the Criminal
Code in order for Mr Fırat to be granted conditional release in November 2010 would not have been
satisfied. In view of the fact that the applicant had been placed in detention on 22 March 2008, he
would have served two years, seven months and 12 days by 4 November 2010; this did not equate
to three-fifths of the sentence handed down, as required by Article 105 § 1 (b) of the Criminal Code.
Furthermore, Mr Fırat did not supply any details concerning the number of days he had worked prior
to the latter date and which could be taken into account in his favour in calculating the sentence
served (Article 105 § 6 of the Criminal Code). In addition, conditional release was not automatic and
was granted only in specific circumstances. Consequently, the Court considered that the exercise of
Mr Fırat’s right of appeal had not been at the cost of his liberty. There had therefore been no
violation of Article 2 of Protocol No. 7 to the Convention.
Article 41 (just satisfaction)
The Court held that Greece was to pay Mr Fırat 1,600 euros (EUR) in respect of non-pecuniary
damage(echrcaselaw.com editing).
