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

Supreme Court confirmation of a minor's conviction as an adult By decision no. 1534/03.11.2011 of the Supreme Court, decision no. 1480/2010 of the Five-Member Court of Appeal of Athens was upheld; by that decision a foreign minor had been convicted as if he were an adult [“Nomika Epilekta”: “Conviction of a Foreign Minor as an Adult”], after the official documents of the state of Pakistan, that is, public documents, concerning the real age of the foreign national who was unjustly convicted, were disregarded. By its above decision, the Supreme Court held (faithfully following the relatively recent practice of rejecting, wholesale, all criminal applications for cassation against convictions) that “under article 121 of the CCP (: the ‘Code of Criminal Procedure’), the court hearing an appeal, if it finds that the court that tried the case at first instance lacked jurisdiction because the offence fell within the jurisdiction of that court or of a lower court, annuls the decision challenged by appeal and itself hears the merits finally (that is, without a right to lodge an appeal against the decision it will issue) (article 502 § 3 CCP), and, in every other case of lack of subject-matter jurisdiction, annuls the decision challenged by appeal and refers the case to the competent court” [page 3 of the Supreme Court decision]. Then, in order to reject the application for cassation against the erroneous decision of the Five-Member Court of Appeal of Athens (felonies), this Supreme Court decision accepted that “In the present case, it follows from the minutes of the challenged decision of the Five-Member Court of Appeal of Athens (which, it should be noted, are kept without any security guarantee as to the recording of what occurs during the criminal trial, because the competent clerk writes whatever he himself considers and wishes, without any substantive control), which heard the case on appeal, that counsel for the accused raised in writing and also developed orally the objection that at the time of commission of the act (18.12.2005) the accused was a minor, having been born on 15.09.1988 and, consequently, had been tried without subject-matter jurisdiction by the first-instance Three-Member Court of Appeal for Felonies of Athens, since he fell within the jurisdiction of the Single-Member Juvenile Court of Athens”. And the reasoning of this decision of the country's highest court adds that “as follows from the challenged decision and the incorporated minutes of the trial, the above court, after taking into account the evidence (documents and witnesses), rejected by majority (it should be noted that there are still judges, here in the minority, who strive to save at least appearances) the submitted objection of lack of jurisdiction of the first-instance court as unfounded, with the following reasoning: according to the documents submitted by counsel for the fourth accused and read out as above, numbered 14392-1/2 and 145392-2/2, namely a) a copy of a birth certificate and b) school leaving certificate no. 903, in the original and in lawful translation, the person mentioned in them, with the details M… (father's name) I… (child's name), was born in Randhir, Pakistan, on 15.09.1988. These details of the named person coincide with the corresponding details of the above fourth accused; however, the documents in question do not also state the name of this accused person's mother, which is M… Therefore, these documents do not prove that the person said to have been born on 15.09.1988 is the fourth accused. This same accused, when examined through an interpreter immediately after his arrest and asked about this, answered, among other things, that he was born in 1984 (from the report of examination of the accused through an interpreter dated 18.12.2005), and he also stated the same more specifically, that he was born on 01.01.1984, during his statement, again through an interpreter, before the investigating judge on 19.12.2005, while during the trial of the case before the first-instance court, where he appeared with defence counsel of his own choice, he mentioned nothing about his age and, in particular, did not say that he had not been born in 1984 as he was said, and indeed had himself declared until then, to have been. From the above, according to the majority opinion of the court, it is proved that the accused was born on 01.01.1984 and not on 15.09.1988, as he belatedly and for the first time claimed before the present court. The relevant testimony of the four witnesses examined is found unpersuasive, especially in view of the above statements of the accused and of the unclear picture those witnesses have regarding the accused's date of birth, as appears from their testimony. Therefore, the claim of the fourth accused that at the time of commission of the acts (18.12.2005 and two months before that date) he was a minor, having been born on 15.09.1988, and that consequently he was tried without subject-matter jurisdiction by the first-instance Three-Member Court of Appeal for Felonies of Athens, since he fell within the jurisdiction of the juvenile courts, is unfounded and must be rejected according to the above majority opinion of the members of the court, while according to the opinion of two members it is proved from the above evidence that the accused was indeed born on 01.01.1988 and, as to him, the case should have been referred for trial before the competent juvenile court”. And the decision of the Supreme Court continues: “Therefore, the court of the merits, with full and detailed reasoning and with reference to the evidence, in accordance with the provisions mentioned above, rejected the above objection of the appellant in cassation (that is, of the minor accused), by the above interlocutory decision, accepting that the accused at the time of commission of the act was not a minor, but an adult falling within the subject-matter jurisdiction of the first-instance court” [pages 4 to 7 of the Supreme Court decision]. And after the Supreme Court decision faults the reference in the application for cassation (in the “cassation pleading”) to the complaints (that is, the grievances) by which the decision of the Five-Member Court of Appeal of Athens for felonies is challenged on its merits, because the Supreme Court does not examine the merits of the case (the “assessment of the facts by the trial court”), it adds that “the remaining grounds concerning violation of the individual rights of the appellant in cassation (that is, of the minor accused) under the provisions of articles 20 § 1, 87 § 2 and 93 § 4 of the Constitution and article 48 § 1 of the Charter of Fundamental Rights of the European Union, in that respect for his defence rights was not secured and he was exposed to publicity while he was a minor, must be rejected because they rest (that is, are based) on an erroneous premise, since the court, by its cassationally unreviewable (that is, unchecked) judgment, accepted that the appellant in cassation (the minor accused) was not a minor” [pages 7 to 8 of the Supreme Court decision. In this case too, doubt was interpreted against the accused. In other words, where there is doubt as to whether the accused is a minor or an adult, the less favourable version, and not the more favourable one (as should be done under the law), is preferred for him. Thus, this specific foreign national was judged as an adult and not as a minor, as he truly was at the critical time. It follows from the above decision that the court which convicted the minor Pakistani as a supposedly adult person conducted no inquiry at all; that is, it did not order the evidence to be supplemented so that the accused's age could be confirmed, although he had initially been unjustly sentenced to the crushing penalty of fifteen years' imprisonment. And by the decision of the Five-Member Court of Appeal of Athens for felonies he was sentenced to a term equal to the time he had spent in prison, namely 4.5 years, and thus in the end he was released and supposedly “vindicated”! The Five-Member Court of Appeal of Athens for felonies had the official duty to ask, for example from the embassy of Pakistan in Athens, for whatever explanations it wanted in order for the official public documents to be supplemented also with the details of the accused's mother, and it was not correct to conclude that the accused had not stated his true date of birth when he was examined through an interpreter and when he was represented by a lawyer of his choice and, for that reason alone, was an adult! In this specific case, the manner in which interpreters are appointed is well known; they do anything but interpret faithfully. Equally known is the inability of defence lawyers to communicate with foreign-language speakers because they do not know Urdu, Bangla, Hindi, Swahili and other languages. With the decisions of the Five-Member Court of Appeal of Athens for felonies and of the Supreme Court, the injustice against this specific foreign national became entrenched; from a tragic and innocent victim of human traffickers, he was judged to be a perpetrator and, instead of being acquitted, also because of his minority, he was convicted in violation of his most fundamental individual and human rights. Finally, it is observed that in the event of the very likely vindication of the foreign national by the ECtHR (the European Court of Human Rights), our country will be called upon to pay compensation and reparations always from the borrowed money of the international usurers and not from the assets of our judges, who must face the consequences entailed by abuse of power, and not only that.