SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54528/00 
by Achilleas KORELLIS 
against Cyprus

The European Court of Human Rights (2nd Section), sitting on 23 April 2002 as a Chamber composed of

Mr J.-P. Costa, President
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen
 Mrs A. Mularoni, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced on 18 January 2000 and registered on 1 February 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Achilleas Korellis, is a Cypriot national, who was born in 1953 and lives in Nicosia. He is represented before the Court by Mr M. Pikis, a lawyer practising in Nicosia.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was accused of rape and committed for trial before an Assize Court.

At the commencement of the hearing of the case before the Assize Court, the defence requested discovery of a number of relevant documents in the prosecution’s possession. The defence further requested that a forensic examination of the complainant’s knickers be carried out and that swabs taken from her vagina be analysed. The prosecution objected. After hearing argument from both sides, the Assize Court granted the requests by an order made on 19 March 1998. This order was made pursuant to the provisions of Articles 12(5)(b), and 30.2 of the Cyprus Constitution, Articles 6 §§ 1 and 3 b) of the Convention and the notion of a fair trial as  developed in recent case-law of the English courts. The Assize Court also relied on Article 7(1) of the Cyprus Law of Criminal Procedure, Cap.155, as amended.

The Attorney General immediately applied for judicial review of the order by means of a writ of certiorari. The grounds invoked were lack of jurisdiction and error of law on the face of the record. The application was made ex parte and it came before Justice Artemides, a member of the Supreme Court. He granted leave and suspended the enforcement of the order. Thereafter, on 15 May 1998, after hearing the parties, Justice Artemides granted the application and quashed the Assize Court’s order for excess of jurisdiction.

The applicant’s appeal (no. 10227) against this decision was heard by the plenary of the Supreme Court consisting of nine judges. The judges included Justice Gavrielides who, as it transpired towards the end of the subsequent trial, had been actively involved in the investigation that preceded the filing of the indictment against the applicant in his capacity of senior attorney attached to the Legal Service of the Republic, i.e. the prosecution. However, at the time of the hearing of the certiorari appeal, the defence had been unaware of this fact and, therefore, no objection was taken to his participation in the proceedings. Neither the prosecution nor Justice Gavrielides referred to the matter.

On 24 September 1998 the appeal was dismissed by a majority of 7 to 2. Justice Gavrielides was part of the majority.

In the course of the subsequent proceedings before the Assize Court the prosecution provided several of the documents which the defence had previously requested. However it denied the defence the opportunity to have forensic tests carried out. The applicant claims that the latter was of the utmost importance for his defence since material was found on the knickers which the prosecution and the Assize Court treated as strong corroborative evidence of guilt.

The applicant was found guilty by the Assize Court on 10 March 1999 and sentenced to three years’ imprisonment. He appealed against his conviction to the Supreme Court. The appeal (no. 53/99) was referred to a division of the Supreme Court consisting of three judges. The first ground of appeal concerned Justice Gavrielides’ participation in different stages of the proceedings which, it was contended, resulted in a violation of the applicant’s right to a fair trial by an independent and impartial tribunal. The appeal was accompanied by a plea, followed by a petition, that the certiorari judgment of the Supreme Court of 24 September 1998 be vacated having regard to the principles enunciated in a recent decision of the House of Lords in the case of R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No 2) (1999). Vacation of the said judgment was a precondition for the determination of the applicant’s first ground of appeal.

At the beginning of the appeal hearing it was pointed out to the defence that the court could not review the validity of a previous judgment of the Supreme Court in the context of an appeal. The defence then filed a separate petition to the plenary of the Supreme Court to vacate its previous judgment. The hearing of the appeal was accordingly adjourned pending the determination of the petition.

The petition was examined by the plenary of the Supreme Court consisting of nine judges, including the three judges before whom the applicant’s appeal was pending. The court was presided over by Justice Artemides. An objection to the participation of Justice Artemides was taken by the defence given his previous involvement in the case. It was claimed that his participation at this stage would render him a judge in his own cause and offend against the rule of impartiality. However, the objection was rejected.

The application to vacate was dismissed on 19 July 1999 by a majority decision delivered by Justice Artemides, on the ground that the Supreme Court lacked jurisdiction to re-open the proceedings and examine the validity of its previous judgment.

Following dismissal of the petition, the hearing of the appeal was resumed. The appellate division of the Supreme Court indicated to the defence that, in view of the dismissal of the application to vacate, the first ground of appeal was left in a vacuum. The defence was then left with no option but to withdraw this ground of appeal as it could no longer be determined.

A hearing of the remaining grounds of appeal which the applicant had made then followed. The hearing was completed on 2 November 1999, and judgment was reserved. The Supreme Court dismissed the appeal on 18 January 2000, thereby re-affirming the applicant’s conviction.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he did not receive a hearing before an “impartial tribunal”. He also invokes Article 13 of the Convention.

THE LAW

The applicant alleges a violation of Article 6 § 1 of the Convention, which insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

(a)  The Government submit that Article 6 does not apply to the proceedings at issue. Neither the proceedings leading to the adoption of the judgment of 24 September 1998 (in which Judge Gavrielides participated) nor the proceedings in which Judge Artemides dismissed the application to vacate this judgment involved the determination of a criminal charge against the applicant.

As regards the first proceedings, the Government stress that the sole question before the Supreme Court was whether at that particular stage, namely before the start of the trial, the Assize Court had jurisdiction to make an order for discovery of certain documents and for the carrying out of a forensic examination of the complainant’s knickers. It is clear that the issue in these proceedings was the nature and the extent of the jurisdiction of the Assize Court. The criminal charge against the applicant was determined at the trial which took place subsequently before the Assize Court and was totally unaffected by the judgment of the Supreme Court of 24 September 1998.

According to the Government, the applicant’s allegation that the judgment of 24 September 1998 substantially affected the course of the trial before the Assize Court is based on a mistaken factual allegation. What actually happened was that the prosecution refused to deliver the knickers to the defence for scientific examination before the start of the trial. Once the trial began and the knickers were tendered in evidence as an exhibit, the prosecution no longer had control of the matter and it was no longer in the prosecution’s discretion either to deny or to consent to the delivery of the knickers to the defence for any purpose. However, during the trial the defence failed to request the court to allow the knickers to be examined by its own expert, despite the fact that there was ample time and opportunity to do so. In fact, the defence did so with respect to other  exhibits.

The Government maintain that the same reasoning applies to the proceedings before the Supreme Court in the context of application no. 53/99 whereby the applicant sought the annulment of the judgment of 24 September 1998.

The applicant submits that the proceedings in which Judge Gavrielides participated were an indispensable part of the proceedings that involved the determination of the criminal charge against him. The said proceedings substantially affected, and in effect foreshadowed, the course of the trial. The refusal of the prosecution to allow the defence access to the knickers before they were admitted in evidence as an exhibit at the trial violated the applicant’s right to equality of arms and his right to have adequate time and facilities for the preparation of his defence.

The Court recalls that the applicant was accused of rape. At the start of the hearing of the case before the Assize Court the defence requested the forensic examination of the complainant’s knickers. The Assize Court granted the request by way of an order, but following an appeal by the Attorney General, Judge Artemides subsequently quashed the order. The applicant’s appeal against this decision was dismissed by the plenary of the Supreme Court. The applicant was found guilty by the Assize Court.

The Court considers that the certiorari proceedings decided by Judge Artemides and then by the plenary of the Supreme Court, although they did not determine a criminal charge against the applicant, were closely interwoven with the proceedings before the Assize Court. In effect, the Court notes that the knickers were considered by the defence to be an importance piece of evidence in the case against the applicant. Independently of the moment at which the knickers became an exhibit at the trial in accordance with the domestic procedural rules on the matter, the question of their examination by the defence was crucial for the outcome of the trial. Any evidence which a forensic examination might have disclosed could have had a important bearing on the applicant’s guilt or innocence of the charges.

It follows that the Court considers that the results of these proceedings were decisive for the determination of a criminal charge within the meaning of Article 6 § 1.

The Government’s objection must therefore be rejected.

(b)  As regards the merits of the complaint, the Government stress that the applicant did not allege at any stage of the proceedings that Judges Gavrielides and Artemides had acted with personal bias.

As regards the participation of Judge Gavrielides in the examination of appeal no. 10227, the Government submit that there was no legitimate reason to fear that he lacked impartiality. These were certiorari proceedings and the question involved was purely legal and not related to the facts of the case. In view of the nature of the proceedings he did not, and could not, make any decision concerning the merits of the charge against the applicant.

As regards the participation of Judge Artemides in the context of application no. 53/99, the Government stress that the issue to be determined in these proceedings was solely whether the Supreme Court had jurisdiction to vacate a judgment adopted within the framework of its appellate jurisdiction. In this respect, it is difficult to see how Judge Artemides can be said to have become “a judge in his own cause”. In the context of these proceedings, the applicant did not seek review of the judgment of 24 September 1998, nor the rehearing of appeal no. 10227.

Finally, the Government contend that in the circumstances of the application, the alleged violation cannot be related to any actual prejudice to the applicant’s defence.

The applicant maintains that the proceedings in which Judge Gavrielides participated involved the determination of the applicant’s right to have evidence disclosed prior to the hearing in order to prepare his defence. As regards the proceedings in the context of application no. 53/99, Judge Artemides could not participate since he was the judge who gave the first instance judgment of the Supreme Court of 15 May 1998. He participated and presided over the Supreme Court in the proceedings relating to the vacation of a judgment issued on appeal from his own decision. The participation of a judge in appeal proceedings from his own decision must be considered to render him a judge in his own cause.

Furthermore, the applicant claims that vacation of the judgment did involve a re-opening of the appeal proceedings. The Supreme Court was and remained the ultimate court of appeal. Therefore, it could not review the validity of its prior decision unless re-opening took place. The applicant admits that he did not seek a re-hearing. He states that this was because his rights had already been affected by the judgment of 24 September 1998 that was the subject-matter of application no. 53/99. Upon vacation of that judgment the first ground of appeal could have been considered in the context of that appeal and the applicant acquitted accordingly.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa 
 Registrar President

KORELLIS v. CYPRUS DECISION


KORELLIS v. CYPRUS DECISION