Decision No. 1498/1999 of the Supreme Court

Summary of facts: The Nafplion three-member Criminal court of Appeal by its ruling 241/1998 condemned, during the application for review of his case, the Appellant for the offences of illegal entry into Greece from Turkey, lack of passport and of police control and sentenced him to eight months imprisonment and expulsion from the country after serving the said sentence.  The Court of Appeal's judgment mentioned that the said offences were committed during the last decade before the sentence was delivered, but did not specify their exact date. The Appellant had declared before the Court that he was an ethnic Kurd. After having served his sentence, he was transferred to the relevant transfer's department of the Pireaus Police in view of his expulsion.  The Ministry of Public Order (MPO) though, granted him temporary residence in Greece, since in the meantime he had been granted political asylum and his expulsion would have contravened art. 32 and 33 of the Geneva Convention and art. 5 of the Constitution as well as relevant provisions of the CAT Convention. Furthermore, the Ministry ruled that his residence permit and the right of renewal of it, as long as his refugee status is valid, represent sufficient evidence that he is of known abode and can be at the disposal of authorities whenever this is required. After the end of his detention the Appellant requested a review of his criminal case and the annulment of his criminal record. In his defense, he referred to art. 31 of the Geneva Convention and produced as evidence the a/m Ministerial decision of his refugee status recognition as well as the travel document issued for him by the Greek authorities. 

Reasoning and decision: A) The Court ruled that, according to art. 525 of Criminal Procedure Code, a "new" element can also be the discovery, after the sentence, of a personal reason which, though not waiving the illegal character of an offence, stipulates nevertheless the non existence of a culprit. B) It referred to art. 28 para 1 of the Constitution giving superior formal force to the Geneva Convention and to articles 31-33 of this latter and ruled that their invocation "impedes the enforcement of article 4 para. 3 of L. 1975/1991 which expressly excludes refugees from the punishment of illegal entry into the country offering thus a personal reason of acquittal". C) The Supreme Court ruled that a re-trial in a lower Court is not necessary since the offence under review is a misdemeanor, and is thus already prescribed.

The Supreme Court quashed the judgment of the Nafplion Criminal Court of Appeal, as to the part that referred to the Appellant the review of the trial and definitely ceased his prosecution for the offence of illegal entry into Greece from Turkey.