CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 avril 2015

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GREECE (No. 2)   (Application no. 2870/11)             JUDGMENT (Extracts)     STRASBOURG   9 April 2015   FINAL   14/09/2015     This judgment became final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Vamvakas v. Greece (n o 2), The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Elisabeth Steiner, President,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 2870/11) 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 Greek national, Mr Alexandros Vamvakas (“the applicant”), on 20 December 2010. 2.     The applicant was represented by Mr G. Katrouggalos, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent, Ms F. Dedousi, Adviser, State Legal Council, and Ms M. Skorila, Legal Assistant, State Legal Council. 3.     The applicant complained, in particular, of a violation of Article 6 § 3 (c) of the Convention. 4.     On 6 March 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1953. 6.     By judgment of 16 January 2006 the Athens Criminal Court of Appeal, composed of three judges and adjudicating as a court of first instance, convicted the applicant of fraud and forgery to the detriment of a bank and sentenced him to eight years’ imprisonment. The applicant, who was being detained in Korydallos Prison at the time, appeared in person, assisted by a lawyer of his own choosing, N.G. 7.     At the hearing held on 11 February 2009 before the Criminal Court of Appeal, composed of five judges, the applicant, who had meanwhile been transferred to Grevena Prison, appeared in person, assisted by two lawyers of his choosing, N.T. and E.P. The hearing was adjourned and scheduled to resume the next day. On 12 May 2009 the proceedings were once again adjourned, owing to a lawyers’ strike, until 20 May 2009. Before the end of the 12 May 2009 hearing the court informed the applicant that he would not be summoned to appear at the hearing on 20 May 2009. 8.     Before the hearing on 20 May 2009 the applicant informed the court in writing that he would not be present but would be represented by his lawyers. However, neither of the lawyers whom the applicant had appointed on 11   February 2009 attended the hearing in question. The court then concluded that at the 12   February 2009 hearing the applicant had voiced a wish for a ruling on his appeal; it appointed G.M. official counsel for the applicant and adjourned the 27 May 2009 hearing so that the latter could familiarise himself with the case file. At the hearing G.M. submitted to the court that the offences with which the applicant had been charged were petty rather than serious offences, which plea had also been raised and dismissed at first instance. He also invited the court to take account of mitigating circumstances in respect of the applicant. 9.     On 27 May 2009 the Criminal Court of Appeal reduced the applicant’s sentence to seven years’ imprisonment for the same offences. It dismissed the allegations that the offences came under tort law and ruled that they should be classified as criminal offences because the conditions set out in Act No.   1608/1950 on “increasing sentences imposed on persons found guilty of embezzling public funds” were fulfilled in the instant case. However, it acknowledged the existence of mitigating circumstances. 10.     On 1 June 2009 the applicant lodged an appeal on points of law complaining of the erroneous application of the relevant legislation, in particular Act no.   1608/50. Relying on the case-law of the Court of Cassation, he submitted that the offences with which he had been charged fell under tort law and not under criminal law, and had become statute-barred by the date on which he had stood trial. He also complained of a violation of Articles 6 and 7 of the Convention. The applicant had prepared his appeal on points of law himself (albeit, evidently, with the assistance of a lawyer), lodging it with the Court of Cassation through the intermediary of the Grevena Prison authorities. On 5 November 2009, in Grevena prison, the applicant received a summons to appear at the 5 February 2010 hearing before the Court of Cassation. 11.     On 30 December 2009 the applicant asked the President of the Court of Cassation to appoint an official lawyer to represent him before that court. 12.     On 2 January 2010 the President of the Court of Cassation, noting the applicant’s situation of financial hardship, appointed F.K. to represent him at the 5 February 2010 hearing and/or at any other hearing held in the context of his case. 13.     By judgment of 25 February 2010 (finalised on 29 March 2010 and authenticated on 28 April 2010, as of which date copies of the judgment could be issued on request), the Court of Cassation dismissed the appeal on points of law as having been abandoned, on the grounds that the applicant, who had, according to the court, been summoned to appear at the hearing pursuant to standard procedure and within the requisite time-limit, had failed to appear. 14.     The applicant submitted that he had contacted F.K. from prison after appointment of the latter, who had assured him that he would attend the hearing. However, F.K. had informed him of the reasons for his absence neither before nor after the hearing. The applicant explained that it was only later, during a telephone conversation (without providing details regarding the date, method or reasons for that conversation), that the lawyer had informed him that he had telephoned the registry of the Court of Cassation to request the adjournment of the hearing. 15.     On page 4 of his application to the Court the applicant stated that he had taken cognisance of the judgment of the Court of Cassation on 18 October 2010, as clearly mentioned at the bottom of page 3 of the judgment. ... THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 21.     The applicant complained that he had not benefited from effective legal assistance in the framework of his appeal on points of law owing to the fact that the lawyer who had been officially appointed by the Court of Cassation had not attended the hearing, which had resulted in the dismissal of his appeal. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” ... B.     Merits 32.     The Government submitted that the applicant’s right of access to a court had been respected at all stages in the proceedings, including before the Court of Cassation. They pointed out that even though the applicant had not been represented before the latter court, he had been allowed to lodge his appeal on points of law in person and to obtain the services of an officially assigned lawyer, without let or hindrance. Furthermore, the Court of Cassation had had no reason to doubt that the officially assigned lawyer would discharge the duties legally incumbent upon him. 33.     The Government added that at no point either before or during the the Court of Cassation hearing had the applicant requested an adjournment of proceedings or the replacement of official counsel   ; nor had he at any stage informed the judicial authorities of a refusal on the part of that lawyer to fulfil his duties. Referring to Article 47 of the Lawyers Code they pointed out that if F.K. had not wished to defend the applicant, he should have lodged a declaration of relinquishment with the registry of the Court of Cassation, which he did not do. The Government therefore considered that the Court of Cassation had, quite rightly, dismissed the appeal pursuant to Article 514 of the Code of Criminal Procedure. They further pointed out that in the absence of any indication that there had been a problem with the applicant’s defence, the judicial authority had had no reason, or indeed competence, to intervene spontaneously in the relationship between the applicant and his lawyer. 34.     The applicant alleged that he could not have foreseen such gross negligence on the part of an officially assigned defence lawyer. He added that he had been in prison, facing the pressure of having to lodge his appeal on points of law within the ten-day deadline notified to him. He considered that the Court of Cassation should have adjourned the hearing because, in his view, it had been aware that he wished to continue the proceedings and, noting that the defence lawyer in question had been unable to honour his obligations, should have replaced him. He added that he could not be accused of any error or lack of diligence, and that, in that regard, the Government had merely put forward a series of rather vague allegations. 35.     The Court first of all reiterated that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (see Van Geyseghem v.   Belgium [GC], no.   26103/95, § 27, ECHR 1999-I). It is therefore necessary to examine the applicant’s complaints under paragraph 3 (c) in conjunction with the principles laid down in paragraph 1. 36.     Secondly, the Court reiterates the principles which emerge from its case-law on legal aid. It has declared on many occasions that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused. A State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes (see Andreyev v.   Estonia , no. 48132/07, § 71, 22 November 2011). Owing to the legal profession’s independence, the conduct of the defence is essentially a matter between the defendant and his representative; under Article 6 § 3 (c) the Contracting States are required to intervene only if a failure by counsel to provide effective representation is manifest or sufficiently brought to their attention (see Daud v. Portugal , 21 April 1998, § 38, Reports of Judgments and Decisions 1998-II). 37.     The Court further observes that there may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. If they are notified of such a situation, the authorities must either replace or oblige the lawyer to fulfil his duties. Adopting the restrictive interpretation advanced by the Government would produce unreasonable outcomes incompatible with Article 6 § (c), potentially rendering free legal aid nugatory (see Artico v. Italy , 13 May 1980, § 33, Series A no. 37; Kemal Kahraman and Ali Kahraman v.   Turkey , no. 42104/02, § 35, 26 April 2007; and Iglin v. Ukraine , no.   39908/05, § 67, 12 January 2012). It will depend on the circumstances of the case whether the relevant authorities should take action (see Daud , cited above, §§ 40-42) and whether, taking the proceedings as a whole, the defence can be regarded as “practical and effective” as required by Article 6 § 3(c) (see Rutkowski v.   Poland (dec.), no.   45995/99, ECHR   2000-XI; Staroszczyk v. Poland , no.   59519/00, §§   121-122, 22 March 2007; Siałkowska v. Poland , no. 8932/05, §§   99-100, 22 March 2007; and Ebanks v. the United Kingdom , no. 36822/06, § 73, 26 January 2010). 38.     The Court notes, first of all, that the parties’ submissions differ as regards the circumstances of the case and the reasons for F.K.’s failure to appear at the 5 February 2010 hearing. It has not found in the case file any evidence enabling it to lend greater credence to the arguments of one party rather than the other. The only factor which it considers crucial in the instant case is the fact that the Court of Cassation had appointed official counsel to represent the applicant in proceedings before it. 39.     The Court emphasised that a lawyer, and in particular an officially appointed lawyer, is not exempted from due diligence when he or she decides to stand down in a particular case or is unable to attend a given hearing. In such cases, he or she must inform the authority which appointed him of the issue and take all the necessary and urgent steps to protect his or her client’s interests and rights. 40.     In the instant case, counsel for the applicant, who was appointed on 2 January 2010 for the 5 February 2010 hearing, would appear never to have mentioned any inability to discharge his duty. In the applicant’s words, shortly before the hearing F.K. assured him that he would be present. Furthermore, there is nothing in the case file to suggest that F.K. ever contacted the registry of the Court of Cassation to request the adjournment of the hearing, as he told the applicant after the hearing. As the Government explained in their observations, there are two ways admissibly to submit a request for the adjournment of a hearing before a court without the need for the lawyer himself or his client to appear: either a lawyer, usually a partner of the lawyer unable to attend the hearing, must attend the court on the day of the hearing to request an adjournment; or, prior to the hearing, the client must send the registry a written request to that effect, to be handed to the President of the court on the day of the hearing ... Accordingly, even supposing that F.K telephoned the registry to inform it of his inability to appear, his request could not have been taken into account because he would not have submitted it in the requisite standard manner. For its part, the registry would certainly have drawn his attention to the fact that a telephone call was not a legitimate way to submit such a request under domestic law. 41.     Given the impossibility under domestic law of setting aside the decision as to the inadmissibility of the appeal on points of law, it was incumbent on the Court of Cassation to assess the reasons for the failure of the applicant’s lawyer, who had been officially assigned, to appear, and to satisfy itself that the applicant’s interests had been protected. 42.     The Court takes the view that F.K.’s unexplained absence from the hearing held one month and three days after his appointment, no request for an adjournment having been submitted, or even if such a request was lodged unlawfully, as stated by the applicant, amounts to a situation of “manifest defect” requiring positive measures from the competent authorities. The Court of Cassation should thus have adjourned the proceedings in order to clarify the situation, rather than dismissing the appeal as having been abandoned. 43.     Whatever the circumstances – lack of any contact or unlawful request – the competent court had the positive obligation to ensure practical and effective respect for the applicant’s defence rights. Since that was not the case, the Court can only conclude that the requirements of Article 6 § 1 and 3 (c) of the Convention, taken in conjunction, were flouted. There has accordingly been a violation of those provisions. ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ...   2.     Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;   ... Done in French, and notified in writing on 9 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach   Elisabeth Steiner Deputy Registrar   President