KOKKONIS AND CHALILOPOULOU v. GREECE
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
1. The applicant in the first case, Mr Zois Kokkonis, is a Greek national who was born in 1964 and lives in Patra. The applicant in the second case, Ms Nikolitsa Chalilopoulou, is a Greek national who was born in 1968 and lives in Patra. They were represented before the Court by Mr A. Regglis, a lawyer practising in Patra. 2. The facts of the cases, as submitted by the applicants, may be summarised as follows. 3. On 7 January 2009 the applicants, a married couple, were convicted in absentia by the three-member Patras Court of First Instance of an offence of theft which they were found to have committed jointly, and sentenced to twelve months’ imprisonment (decision no. 22/2009). The applicants lodged an appeal, which was scheduled to be heard on 15 February 2011 by the three-member Patras Court of Appeal. However, on that date the applicants applied for an adjournment of the hearing, as their lawyer could not be present, and the hearing was rescheduled for 3 May 2011 (adjournment decision no. 543/2011). The applicants did not attend that hearing, and neither did a lawyer acting on their behalf. The Patras Court of Appeal, taking into account that the applicants had been present on 15 February 2011, considered that it was “as if [they were] present”, examined their appeal, and sentenced them to ten months’ imprisonment (decision no. 1084/2011). 4. The applicants applied for the annulment of the proceedings under Article 341 of the Code of Criminal Procedure, arguing that they had not been present at the court hearing owing to force majeure, which had prevented them from attending the hearing or informing the court of their absence. In particular, Mr Kokkonis submitted that he had been hospitalised on 29 April 2011 owing to acute febrile gastroenteritis, and had left hospital with instructions to stay in bed from 29 April 2011 to 8 May 2011; he attached the relevant documents to his application for annulment. Ms Chalilopoulou argued that she had been prevented from attending the hearing owing to her husband’s illness, as she had had to take care of him and their children at home. 5. The applicants’ applications for the annulment of the proceedings were heard by the Patras Court of Appeal on 17 May 2011 and the proceedings continued on 25 May 2011. The court dismissed their applications as inadmissible (decision no. 1356/2011). In particular, it held that an application for annulment under Article 341 could only be lodged if the defendant had been tried in absentia, and not when he had been tried “as if [he were] present”. 6. The relevant parts of the Code of Criminal Procedure read: “... 3. If the defendant has been legally summoned but is not present, or is not legally represented by a lawyer, he is tried as if he were present...” “1. If, as a result of force majeure or other insurmountable obstacles, the convicted defendant could not notify the court of the insurmountable obstacle promptly by any means, so as to request an adjournment of the hearing (Article 349), he can lodge an application for annulment of the proceedings which took place in his absence or in the absence of his representative... ... 2... If the application for annulment is granted, the decision against which it has been lodged is annulled and the court orders a new hearing for the case on a given date, during which the defendant shall appear without having been summoned. Under no circumstances is the defendant allowed to lodge an application for annulment against the decision [on his application for annulment].” 7. According to the case-law of the Court of Cassation, the decision that is issued following an application for annulment pursuant to Article 341 of the Code of Criminal Procedure is not subject to an appeal on points of law (decision no. 1245/2008 of the Court of Cassation).