Refusal to reopen res judicata criminal proceedings following a judgment of the Court finding a violation did not infringe the Convention
JUDGMENT
Kontalexis v. Greece 06.09.2018 (no. 29321/13)
SUMMARY
Rejection by the Supreme Court of an application for the resumption of criminal proceedings following a judgment of the European Court finding a violation of Article 6. No violation, since the judgment of the national court did not constitute a denial of the fairness of the case.
PROVISION
Article 6 § 1
PRINCIPAL FACTS
The applicant, Panagiotis Kontalexis, is a Greek national who was born in 1952 and lives in Kifissia (Greece).
On 24 November 2008 Mr Kontalexis lodged an application alleging a violation of his right to a “tribunal established by law”. He complained that one of the judges who had been due to sit during his retrial had suddenly been replaced by a substitute without any reason being given. In a judgment of 31 May 2011 the Court found a violation of Article 6 § 1.
On 27 December 2011 Mr Kontalexis applied to the Athens Court of Appeal seeking the reopening of the criminal proceedings. He requested the setting-aside of the criminal court’s judgment sentencing him to a suspended term of two years’ imprisonment. He stressed that the Court had found that the absence of detailed reasons why the judge had been unable to attend and had suddenly been replaced by a substitute had been sufficient to raise doubts as to the transparency of the procedure and the real reasons for the judge’s replacement. The Indictment Division of the Court of Appeal rejected the application on the grounds that the applicant had not sustained any damage as a result of the violation found by the Court.
The Court of Cassation dismissed an appeal on points of law by the applicant on the grounds that the Court’s finding of a violation had not concerned the accused’s right to be tried by an independent and impartial tribunal. That violation, which had been of a purely formal nature, had been a fait accompli and covered by the res judicata effect of the Court of Cassation’s judgment dismissing the ground of appeal which the Court had subsequently upheld. Accordingly, the Court’s judgment of 31 May 2011 could not call into question the Court of Cassation’s decision in the initial proceedings.
THE DECISION OF THE COURT
Article 6 § 1
The Court examined the question of its jurisdiction to rule on the complaint raised by Mr Kontalexis, where a prior judgment had already been delivered. The application of April 2013 raised a new complaint relating to subsequent proceedings distinct from those that had been the subject of the judgment delivered by the Court in May 2011. The Court therefore had jurisdiction to examine the issue thus raised, without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention.
The complaint of unfairness raised by the applicant was specifically directed against the reasoning of the Court of Cassation. However, the grounds of its judgment of January 2013 constituted an interpretation of Article 525 of the Code of Criminal Procedure, which had the effect of limiting the situations that could give rise to the reopening of criminal proceedings that had been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts.
That interpretation, which was supported by the Court’s settled case-law to the effect that the Convention did not guarantee the right to the reopening of proceedings, and by the lack of a uniform approach among the member States as to the operational procedures of any existing reopening mechanisms, did not appear to be arbitrary.
The Court of Cassation had held that the judgment of 2011 had not called into question the fairness of the proceedings or the independence or impartiality of the judicial bench that had delivered the judgment in question. In view of the margin of appreciation available to the domestic authorities in the interpretation of the Court’s judgments, it was sufficient for the Court to satisfy itself that the Court of Cassation had not distorted or misrepresented the above-cited judgment. In the present case the Court could not conclude that the Court of Cassation’s reading of the judgment of 2011, viewed as a whole, had been the result of a manifest factual or legal error leading to a denial of justice and thus an assessment flawed by arbitrariness.
Accordingly, there had been no violation of Article 6 of the Convention.
Article 46
The Court reiterated that the question of compliance by the High Contracting Parties with its judgments fell outside its jurisdiction if it was not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention. Accordingly, in so far as the applicant had complained of a failure to remedy the violation found by the Court in its 2011 judgment, the Court did not have jurisdiction ratione materiae to deal with the complaint (echrcaselaw.com editing).
