CASE OF VAMVAKAS v. GREECE (No. 2)
Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
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. ...