THIRD SECTION
CASE OF FTITI v. GREECE
(Application no. 37957/14)
 
 
JUDGMENT
 
Art 2 P7 • Delayed examination of the applicant’s appeal against his criminal conviction after he had served the minimum duration of his sentence, been granted conditional release and expelled from the country • Appeal with no suspensive effect on the execution of the prison sentence • Applicant’s immediate expulsion • Review unable to address any deficiencies in the lower court’s decision in an effective manner
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
26 August 2025
 
FINAL
 
26/11/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ftiti v. Greece,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Peeter Roosma, President,
 Ioannis Ktistakis,
 Lətif Hüseynov,
 Diana Kovatcheva,
 Mateja Đurović,
 Canòlic Mingorance Cairat,
 Vasilka Sancin, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 37957/14) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr Cherif Ftiti (“the applicant”), on 6 May 2014;
the decision to give notice to the Greek Government (“the Government”) of the complaint concerning Article 2 of Protocol No. 7 to the Convention;
the parties’ observations;
Having deliberated in private on 1 July 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the effectiveness of the applicant’s right of appeal. The appeal hearing in the applicant’s case was scheduled for a date after he had been granted conditional release and expelled from the country. The appeal was ultimately dismissed as unfounded (ανυποστήρικτη) on account of his absence from the hearing. THE FACTS
2. The applicant was born in 1973 and lives in Sousse, Tunisia. He was granted legal aid and was represented by Mr P. Stefanou, a lawyer practising in Thessaloniki. 3. The Government were represented by their Agent and their Agent’s delegate, Ms N. Marioli and Mr K. Georgiadis, President and Legal Counsellor respectively at the State Legal Council. 4. The facts of the case may be summarised as follows. 5. The applicant had a residence permit in Greece and from 1996 lived in Crete. He has two children born in Greece. 6. On 29 December 2009 the applicant was arrested in Rethymno on suspicion of aggravated theft of livestock, committed jointly, and was detained pending trial. 7. On 17 February 2010 he was sentenced by the Chania Mixed Jury Court to seventeen years’ imprisonment and given a fine of 1,000 euros. The first‑instance court ruled that any appeal by the applicant would not have suspensive effect and ordered his deportation from Greece upon completion of his sentence. The court did not give reasons for its decision not to suspend the execution of the sentence. 8. On an unspecified date, the applicant lodged an appeal against the first‑instance judgment. On 30 January 2014 he attended a hearing in the Crete Criminal Court of Appeal. However, the case was adjourned to 13 November 2014 owing to the absence of key prosecution witnesses. 9. On 27 October 2014 the director of Kassandra Prison, where the applicant was being held, sent a letter to the prosecutor indicating that the applicant did not wish to be transferred to court for the hearing scheduled for 13 November 2014 as his lawyer would represent him. On the day of the hearing, the applicant requested an adjournment on the grounds that he was unable to contact his lawyer. 10. On 20 January 2015 the applicant, who was still detained in the same prison, was notified that the appeal hearing had been rescheduled for 1 November 2015. 11. On 25 February 2015 the Chalkidiki Criminal Court of First Instance granted the applicant conditional release under Article 105 of the Criminal Code as he had served three-fifths of his sentence after deduction of the days he had worked, and as he had demonstrated good behaviour. 12. The applicant was formally released on 6 March 2015, but was transferred to the Department of Illegal Migration in Triglia and placed in a detention facility for migrants. On 22 April 2015 he was deported to Tunisia and banned from entering the Schengen area. 13. On 26 October 2015 the Crete Mixed Jury Appeal Court sent a request to the prosecutor at the Chania Court of First Instance for the applicant to attend the forthcoming hearing. However, that request could not be forwarded to the applicant, because he had not appointed a new representative and had provided an incomplete residential address in Tunisia. 14. On 1 November 2015 the Crete Mixed Jury Court of Appeal rejected the appeal owing to the applicant’s failure to appear in court. RELEVANT LEGAL FRAMEWORK AND PRACTICE
15. The relevant domestic law and practice is described in Fırat v. Greece (no. 46005/11, §§ 11-14, 9 November 2017) and Martzaklis and Others v. Greece (no. 20378/13, §§ 33‑37, 9 July 2015). 16. The relevant parts of Article 497 of the Code of Criminal Procedure read as follows:
“... 4. If the conviction entails a sentence of imprisonment, it shall be for the court hearing the case to decide on the suspensive effect of the appeal. The court, giving detailed reasons and applying the criteria set out in paragraph 8 of this Article, shall give its decision immediately after the delivery of its judgment, either of its own motion or after the accused person has declared his or her intention to appeal. 5. The court may in all cases order restrictive measures. ... 7. Where the accused person has been sentenced by a court of first instance to a custodial sentence and has lodged an appeal that does not have suspensive effect, either the accused person or the public prosecutor may request that the execution of the sentence be stayed until the appeal court has given a final ruling. Such a request shall be lodged with the appeal court or, if that court is the Criminal Court of Appeal but it is not currently in session, with the Court of Appeal sitting as a panel of five judges. Restrictive conditions may be imposed on the accused person. If the application is rejected, a new application may not be lodged for one month from the date of rejection of the previous application. 8. An appeal shall not have suspensive effect, in accordance with paragraph 4 of this Article, and an application for a stay of execution of the first-instance decision shall be rejected, where it is considered, with good reason, that restrictive measures are not sufficient, or that the accused person has no known and stable residence in the country, has engaged in preparatory acts to facilitate his or her absconding, has in the past been convicted in absentia ..., or has been found guilty of assisting the escape of another prisoner or of violating the restrictions imposed in relation to his or her place of residence. This applies in particular where a combination of the above-mentioned factors suggests that the accused person intends to abscond or is likely to commit further offences if released ... The court shall in all cases grant suspensive effect or a stay of execution if it considers with good reason that should the convicted person serve his or her sentence immediately or continue to serve that sentence, it would cause the person or his or her family disproportionate and irreparable harm ... 9. The accused person shall be summoned, in accordance with Articles 155-161 and 166, to appear before the court with jurisdiction in accordance with paragraphs 6 and 17 of this Article. If the accused person is detained a long way from the court, he or she shall not appear.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 7 TO THE CONVENTION
17. The applicant complained of a violation of his right of appeal under Article 2 of Protocol No. 7 to the Convention, which reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
Admissibility
18. The Government submitted that the applicant had failed to exhaust domestic remedies as it had been open to him, under Article 497 § 7 of the Code of Criminal Procedure, to request that the execution of the sentence imposed by the first-instance court be stayed pending the decision of the appeal court. 19. The applicant did not comment on this point. 20. The Court reiterates that in the context of exhaustion of domestic remedies under Article 35 § 1 of the Convention, a State relying on a particular remedy must demonstrate that that remedy is accessible and effective in respect of the complaints examined (see Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, § 143, 27 November 2023, and Sampanis and Others v. Greece, no. 32526/05, § 58, 5 June 2008). 21. In the case at hand, the Government have not adduced any examples of past court rulings capable of demonstrating convincingly that the lodging by the applicant of a request for a stay of the execution of his prison sentence under Article 497 § 7 of the Code of Criminal Procedure could have remedied his complaints concerning his right of appeal. Consequently, the Government have failed to demonstrate that the applicant had at his disposal an effective remedy that could have provided sufficient redress for his complaint. Thus, the Court dismisses the Government’s objection as to the inadmissibility of the application for failure to exhaust domestic remedies. 22. The Government also argued that the applicant had lost his victim status by failing to attend or to appoint a representative for two of the appeal hearings. 23. The applicant justified his absence by referring to the obstacles caused by his imprisonment and expulsion. 24. Given the close connection between the parties’ arguments and the substance of the applicant’s complaint, the Court considers it necessary to join this objection to the merits of the case. 25. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Article of the Convention at issue: Article 2
Outcome: violation