Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

Annulment of an irrevocable conviction, by ruling 401/2012 of the Council of the Supreme Court By a ruling of the Supreme Court, an irrevocable conviction to life imprisonment was annulled and the reopening of the criminal proceedings in favor of the convicted person was ordered. By the no. 401/2012 ruling of the Criminal Division of the Supreme Court, issued on 20.02.2012 [published in the legal journal “Practice and Reason of Criminal Law (PraxLogPD)”, volume 2011, p. 493], an application by the accused for reopening of the criminal proceedings was accepted, proceedings that had been concluded by the irrevocable decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia. According to the ruling, decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia was annulled and the case was referred for a new hearing, as regards the applicant, to the Five-Member Court of Appeal of Larissa. The reopening of criminal proceedings is provided for, in exceptional cases, by article 525 of the Code of Criminal Procedure [Nomika Epilekta: “reopening of proceedings and a fair criminal trial. Article 525 of the Code of Criminal Procedure in conflict with article 6 of the ECHR and the case law”]. With the above ruling of the Supreme Court, the convicted person was given the possibility, because of error, to be tried again on the basis of the newer material and the subsequently arisen evidence that he invoked before the judicial council of the Supreme Court. This is an important decision of the Supreme Court, by which the administration of substantive (real) justice, through the issuance of a correct and fair decision, was preferred, while the “demand” for legal certainty receded, namely the inhuman demand that irrevocable convictions should not be overturned, even if a person was wronged by them, where although innocent he was found guilty by a judicial, irrevocable decision (a decision not subject to legal remedies). According to the reasoning of the Supreme Court ruling, under article 525 § 1, case 2, of the Code of Criminal Procedure, criminal proceedings concluded by an irrevocable decision are reopened in the interest of a person convicted of a misdemeanor or felony also when, after his final conviction, new facts or evidence, unknown to the judges who convicted him, were disclosed, which either alone or in combination with what had previously been produced make it clear that the person convicted is innocent or was convicted of an offense more serious than the one he actually committed. In the true meaning of this provision, new evidence means evidence that had not been submitted to the court that convicted the accused and was therefore unknown to the judges who tried the case, whether it existed before the conviction or was created afterwards. The court that hears the application for reopening of the proceedings forms its judgment that there is new evidence from the examination of the minutes of the previous trial and from the documents. New evidence may consist of any evidentiary material, such as testimony by new witnesses or newer testimony by witnesses already examined, supplementary or clarifying the matters that had been placed before the court, new documents or other material clarifying doubtful points of the case, provided that this evidence is such that, if assessed by the court that convicted the accused, either on its own or in combination with the evidence produced before that court, it would make it clear that the convicted person is innocent or was unjustly convicted of a more serious offense. Facts, under the same provision, mean circumstances, relationships and qualities that may directly or indirectly affect the minor premise of the decision challenged by the application for reopening of the proceedings. Moreover, where an application for reopening of proceedings is rejected, a new application may be submitted, provided it is based on another ground or even on the same ground when new evidentiary material is produced in support of it. Further, according to articles 528 § 1 point a and 527 § 3 of the Code of Criminal Procedure, the body competent to decide on the application for reopening of proceedings is the Council of the Supreme Court if the irrevocable conviction was pronounced by a Court of Appeal. Therefore, the application by which the applicant seeks the reopening of the criminal proceedings concluded by decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia, by which he was irrevocably convicted, after the appeal on points of law he brought against it was rejected by decision no. 501/2008 of the Supreme Court, to life imprisonment and a monetary penalty of 50,000 euros, for organizing and giving instructions and an order to commit the acts of importing into the territory, possessing and transporting narcotic substances by a particularly dangerous perpetrator, on the ground that after his conviction new evidence was disclosed making it clear that he is innocent of these acts, is lawful and is duly brought before this Court, sitting in Council, under the provisions set out above, and must be examined on its merits. The following emerges from the case-file material: By decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia, which has become irrevocable, as noted above, the applicant was found guilty and sentenced to the above penalty because: (A) on 17.03.2003 in Athens he organized the importation into Greek territory, the possession and transport of a total quantity of 812 kilograms of Indian cannabis, from the city of Lac in Albania, which he carefully packaged through his co-defendant G. T. into 336 parcels, which, carefully and on his instructions, were hidden inside 605 sacks of charcoal, and which were loaded onto the Albanian lorry with registration number KOA, owned by M. MI., and in this way were brought into Greek territory through the Krystallopigi Customs Office with the final purpose of transporting them to Athens, where he would receive them pursuant to the Albanian document dated 18.03.2003, the CMR consignment note of 18.03.2003, in which he is named as consignee of the transported quantity of charcoal, with the address of his business in Athens, and the sales invoice of 18.03.2003, in which the above details and his telephone number were recorded, although his commercial activity relates to the trade in safes and has no relation to the charcoal trade; and (B) at the place and time mentioned above, after first giving an order to his co-defendant G. T. to hide carefully inside the 605 sacks of charcoal the above quantity of 812 kilograms of Indian cannabis (hashish), that person, G. T., then gave an order to a third person of unknown identity to hide carefully inside the above sacks of charcoal the above quantity of Indian cannabis, and then gave an order to B. A. son of S. to transport the above quantity of charcoal to Athens, without B. A. knowing that a quantity of Indian cannabis was hidden inside the charcoal, and B. A. son of S., driver of the Albanian lorry with registration number KOA, transported the quantity of charcoal; however, at the Krystallopigi Customs Office, with the assistance of police dogs, the carefully hidden quantity of the above narcotics was found. He committed the above acts under items (A), (B) (which concern the same quantity of narcotics) without being drug-dependent, within the meaning of article 13 § 1 of Law 1729/1987, as currently in force, while the circumstances of their commission, and specifically the large quantity of narcotic substances (812 kilograms of Indian cannabis) and the careful manner in which, following his own instructions and orders, the above acts of importing into the territory, possessing and transporting narcotics and concealing them inside sacks of charcoal were organized and carried out, the quantity having been found with the assistance of the narcotics-detection dogs of the Krystallopigi-Kastoria Customs Office, show that he is particularly dangerous. By his previous application dated 24.11.2008, the applicant requested the reopening of the criminal proceedings concluded as above, on the ground that the new evidence referred to in that application, which was unknown to the judges who convicted him, makes it clear that he was innocent of the above acts for which he was convicted. That application was rejected as unfounded on the merits by decision no. 1396/2008 of this Court. Now, seeking once again the reopening of the same criminal proceedings, on the same ground as in his earlier rejected application, the applicant invokes and produces in support of this second application, as new evidentiary material, the following: (1) document prot. no. 1595/27.04.2009 of the General Secretariat for Tax and Customs Matters of the Financial Inspectorate of Western Macedonia of the Ministry of Economy and Finance, which includes verbatim the statement of 03.04.2009 by the Director of the Krystallopigi Customs Office, at the critical time here, A. Ch., (2) document prot. no. E2836/394/A0019 dated 27.10.2003 of the Directorate of Customs Procedures of the General Directorate of Customs of the Ministry of Economy and Finance, (3) document prot. no. 501852/6267 dated 13.05.2009 of the Directorate of Customs and Excise Personnel of the General Secretariat for Tax and Customs Matters of the Ministry of Economy and Finance, and (4) sworn statement no. 3021/2010 of Ch. P. before the Athens Magistrate. He also invokes and produces the following documents, which he had invoked in support of the above earlier application that was rejected, namely: (I) decisions no. 33/110/03.06.2005/13/23.02.2006, 43/3-5-2006/49/10.07.2006 and 1456/688/420/20.04.2007 of the Albanian courts of first instance, second instance and the Albanian court of cassation, respectively, (II) the responsible declaration dated 04.06.2008 (article 8 of Law 1599/1988) of M. K., and (III) the responsible declaration dated 04.06.2008 (article 8 of Law 1599/1988) of G. S. These documents are new evidentiary material and therefore unknown to the judges who convicted him, because they postdate the hearing of the case, except for the document under number 2, which, as appears from the examination of the trial minutes and of the minutes and documents recorded there as having been read, had not been submitted to the court that tried the case, although it pre-existed the hearing of the case both at first and at second instance. According to the opinion that prevailed in this Court, from the above evidentiary material, in combination with the material that had been produced before the court that tried the case, in the sense of comparing them in order to identify their relationship, the following emerges: According to the sworn statement of Ch. P., an associate of the applicant’s father, with personal knowledge of his activities and collaborations generally and in Albania in particular, the convicted applicant did not know G. T., his co-defendant, and had never had any communication with him, direct or indirect. This testimony is confirmed by the fact that in the documents accompanying the cargo, the issuance of which in Tirana was arranged also by G. T., who delivered them to the lorry driver, namely the invoice, the CMR consignment note and a third public document, all dated 18.03.2003 and read under number 10 before the court that tried the case, although the applicant’s exact business address in Athens is mentioned as the consignee’s address, as well as his true telephone number in the invoice among them, the consignee’s full name is recorded as T. N., that is, a name different from that of the applicant, which G. T. would certainly have known precisely if he had known the applicant and which logically would have been recorded in those documents, especially since, according to the statement of A. Ch., Director of the Krystallopigi Customs Office at the critical time, contained in the document produced above under number 1, the T1 import certificate is drawn up on the basis of the particulars in the documents accompanying the cargo and the authorization for legitimizing the customs broker to carry out customs clearance is requested from the consignee recorded in them; it follows from this that the consignee’s exact and true full name is critical and is recorded. From the immediately foregoing and their correlation with the handwritten note in Greek, on a calendar sheet showing time by weeks, with the applicant’s full name, address and telephone numbers, it does not emerge as fact that this note was written by G. T., since in such a case, which necessarily means that G. T. knew the applicant’s full name, that name ought also to have been recorded in the documents accompanying the cargo. From the same sworn statement and its correlation with the testimony of I. M. before the court, a different picture is given from that which was accepted as to what was said during I. M.’s telephone call, answered by the applicant’s daughter, and more specifically the picture given is that I. M. asked for the consignee by the name written in the accompanying documents and not by the name P., and that he did not obtain the applicant’s approval for the importation of the cargo to proceed. According to the produced decisions of the Albanian courts, the person convicted by them for the same life event, namely the trafficking, organization of importation, possession and transport, of the same quantity of narcotics for which the applicant was convicted, T. R., appears to have acted jointly with G. T., with detailed descriptions of that activity, and no involvement of the applicant in those acts emerges from those decisions. According to the responsible declarations produced and the same correlation of them as above, the route usually followed from Tirana to Athens is via Kakavia-Ioannina, as the shorter route, while the route via Krystallopigi would not have been followed if the destination of the cargo was Athens; it was followed because the cargo was to be hidden at a point near the place of residence of G. T. (Kolokynthou, Kastoria). According to the statement of A. Ch. contained in the above-produced document under number 1, in order for the T1 import certificate to be drawn up for goods imported from a third country, the consignee’s tax registration number must exist, and for customs clearance there must be an authorization by the consignee to the customs broker. According to the same sworn statement, the convicted applicant, a businessman active in the sale of safes and with business activity in Albania, knew very well the procedures for importing products from abroad because most of the security systems he sold were imported from abroad. For all the imports he carried out, he used K.-G. as customs brokers, to whom he always gave, in view of an importation, authorization to carry out the operations necessary for customs clearance. From the correlation of these matters it emerges as fact that the importation into the country of the specific cargo was not possible without the tax registration number of the applicant alleged to be the consignee, and its customs clearance required a person authorized by the consignee, elements which the consignee should have arranged to exist and which did not exist. From all the above evidentiary material, according to the same opinion that prevailed in the Court, it becomes clear that this material, in combination with what had previously been produced, gives a different picture of the act for which the applicant was convicted and that, if this material had been placed before the judges who issued the conviction against the applicant, their judgment could have been an acquittal for him. Consequently, according to the opinion that prevailed in the Court, the reopening of the hearing of the case in open court is necessary as regards the applicant, and therefore, by accepting the application under consideration as well-founded on the merits, decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia must be annulled as regards the applicant and the case must be referred, pursuant to article 528 § 1 point c of the Code of Criminal Procedure, for a new hearing before the Five-Member Court of Appeal of Larissa, which is a court of equal rank to the one that convicted the applicant. It accepts the application dated 15.07.2010 of G. P. son of Th., for reopening of the criminal proceedings concluded by the irrevocable decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia. It annuls, as regards the applicant G. P. son of Th., decision no. 50/2005 of the Five-Member Court of Appeal of Western Macedonia. It refers the case for a new hearing, as regards the applicant, to the Five-Member Court of Appeal of Larissa. Deliberated and decided in Athens on 16 February 2012. Issued in Athens on 20 February 2012. This decision is a rare example of correct and apt judicial judgment, which respected the general principles of law and the fundamental rights of the human person, namely the principles of humanism and civilization, which do not accept the preservation of unjust and crushing decisions for the sake of so-called “legal certainty”. According to this latter principle, the preservation even of unjust decisions and the deprivation of liberty of innocent persons is preferred for the sake of the supposed “consolidation of social peace and strengthening of citizens’ trust in the judicial system of the State”. In other words, according to this principle of medieval conception, the human being ceases to be a subject of rights and obligations and a personality whose value state organs must respect and protect, and is transformed into a means by which an attempt is made to prop up an inhuman system of state coercion that imitates dark medieval perceptions.