THIRD SECTION
DECISION
Application no. 63728/16
Maria BANAKOU
against Greece
The European Court of Human Rights (Third Section), sitting on 7 October 2025 as a Committee composed of:
Peeter Roosma, President,
Ioannis Ktistakis,
Lətif Hüseynov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 63728/16) 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”) on 25 October 2016 by a Greek national, Ms Maria Banakou (“the applicant”), who was born in 1968, lives in Vrilissia and was represented by Mr I. Rahiotis, a lawyer practising in Athens;
the decision to give notice of the application to the Greek Government (“the Government”), represented by their Agent, Ms Ioulia Kotsoni, Legal Assistant at the State Legal Council;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns an alleged violation of Article 6 § 1 of the Convention on account of the domestic courts’ refusal to annul criminal proceedings in which the applicant did not attend the hearings but was deemed present under domestic law, and of Article 6 §§ 1 and 3 (c), on the grounds that she had not been given an opportunity to be present at the appeal hearing, in breach of her defence rights.
2. On 13 March 2014 the applicant was convicted (judgment no. 27771/2014) by the Athens One-Member Misdemeanours’ Court for a failure to pay employee and employer social security contributions to the Social Insurance Fund (“the IKA”). She was sentenced to nine months’ imprisonment, which was converted into a pecuniary penalty. The applicant was represented by counsel during the proceedings.
3. On 18 March 2014 the applicant lodged an appeal.
4. A hearing was scheduled for 15 May 2015. On that date, the Athens Three-Member Misdemeanours’ Court adjourned the hearing until 14 December 2015 for the applicant to submit supplementary evidence, in particular, a receipt for the payment of the outstanding contributions.
5. On 14 December 2015 the court adjourned the hearing of the case until 13 April 2016, as the applicant’s lawyer was on strike.
6. Neither the applicant nor her lawyer attended the hearing on 13 April 2016. The court proceeded with the hearing in her absence, treating her “as if present” in accordance with Article 501 § 4 of the Code of Criminal Procedure. On 13 April 2016 the Athens Three-Member Misdemeanours’ Court, by judgment no. 13624/2016, upheld the first-instance decision and sentenced the applicant to nine months’ imprisonment, with the execution of the sentence suspended for three years.
7. The applicant submitted a document issued by her neurologist stating that, on the date of the hearing, she had experienced a sudden episode of vertigo and had had difficulty walking, which was attributed to a prior surgical removal of a brain meningioma (a tumour). The applicant stated that the episode had occurred while she was on her way to the court in Athens to request a further adjournment of her case, on account of her counsel taking part in a lawyers’ strike. She had been unable to reach the court on account of her sudden illness and at approximately 8:30 a.m. she was taken to her treating physician for immediate medical care.
8. On 21 April 2016 the applicant lodged an application for the annulment of the proceedings under Article 341 of the Code of Criminal Procedure, arguing that she had not been present at the court hearing owing to force‑majeure, which had prevented her from attending the hearing or informing the court of her and her lawyer’s absence.
9. On 25 April 2016 the application was dismissed as inadmissible (judgment no. 15451/2016) by the Athens Three-Member Misdemeanours’ Court. It held that an application for annulment under Article 341 of the Code of Criminal Procedure could only be lodged if the defendant had been tried in absentia, and not when the defendant had been tried “as if present”. The court found that, under Article 501 § 4 of the Code of Criminal Procedure, where the hearing of an appeal had commenced and was subsequently interrupted or adjourned, and the appellant then failed to attend the resumed hearing, the trial proceeded as if the appellant were present.
10. On 10 May 2016 the applicant asked the Public Prosecutor at the Court of Cassation to lodge an appeal on points of law against the decision dismissing her annulment request.
11. On 7 June 2016 the Deputy Public Prosecutor of the above-mentioned court rejected the request on the grounds that the lower court had correctly dismissed the application as inadmissible.
THE COURT’S ASSESSMENT
12. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the dismissal of her request for annulment, on the ground that she had been tried “as if present”, deprived her of the right to a fair trial and the opportunity to participate effectively in the proceedings. She further complained, under Article 6 § 1, of the domestic courts’ refusal to annul her conviction pronounced in her absence.
13. The Government raised several preliminary objections, notably that Article 6 of the Convention did not apply to proceedings concerning an application for annulment under Articles 501 § 4 and 341 of the Code of Criminal Procedure, and that the application ought therefore be declared inadmissible under Article 35 §§ 3 and 4 of the Convention, or alternatively, as manifestly ill-founded. The applicant argued that the annulment procedure did not amount to a request to reopen criminal proceedings, as it presupposed that the proceedings were ongoing.
14. The Court considers that it is not necessary to examine all of the Government’s preliminary objections.
15. As regards the complaint under Article 6 §§ 1 and 3 (c) of the Convention, concerning the applicant’s inability to attend the appeal hearing and thus effectively exercise her defence rights, the Government submitted that the application should be declared inadmissible for non-exhaustion of domestic remedies, in accordance with Article 35 § 1 of the Convention. They argued that the applicant ought to have lodged an appeal on points of law (a cassation appeal) under Article 504 of the Code of Criminal Procedure, rather than filing a request for annulment, which did not constitute the appropriate remedy in her case. They referred to a judgment of the Court of Cassation (judgment no. 9/2002), in which it had been held that complaints about procedural fairness and defence rights at the appellate level should be raised through an appeal on points of law. Given that the applicant was deemed to have been tried as present under domestic law, the substance of her complaint pertains to general procedural safeguards under Article 6 §§ 1 and 3 (c), rather than to issues of conviction in absentia. The applicant disagreed, arguing that the alleged violation did not stem from the appeal judgment itself, but from the decision dismissing her request for annulment. However, she did not explain why an appeal on points of law could not have addressed the substance of her complaint under Article 6.
16. The Court recalls that, according to its well-established case-law, Article 35 § 1 of the Convention requires that applicants exhaust remedies that are available, adequate, and effective in respect of the alleged violation. A remedy is considered effective if it is capable of redressing the substance of the complaint and offers reasonable prospects of success. The burden of proof lies with the Government to demonstrate the existence of such a remedy in law and practice, while it is for the applicant to show that any remedy not used was either unavailable, ineffective in practice, or otherwise inadequate in the specific circumstances of the case (see Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 others, § 74, 25 March 2014; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II).
17. The Court notes in this connection that, under Greek law, an appeal on points of law is the ordinary and appropriate remedy for raising complaints concerning procedural violations and defence rights at the appellate level. Such a remedy would have allowed the applicant to complain of the alleged breach of her right to be present and defended before the appeal court, and, if successful, could have resulted in the quashing of her conviction. The use of an annulment request, a remedy reserved for individuals tried in absentia, was not suited to the applicant’s procedural status, as she had been deemed to have been tried as present. It was therefore not capable of remedying the alleged violation. The applicant did not put forward any element demonstrating that an appeal on points of law was unavailable to her or that it lacked prospects of success in practice.
18. Accordingly, the Court considers that the applicant failed to exhaust the domestic remedies available to her, as required by Article 35 § 1 of the Convention and concludes that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.
19. As regards the complaint under Article 6 § 1 of the Convention regarding the alleged unfairness of the annulment proceedings themselves, the general principles regarding the applicability ratione materiae of Article 6 § 1 to proceedings concerning the reopening of cases have been summarised in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§ 63-64, 11 July 2017).
20. In Kokkonis and Chalilopoulou v. Greece ((dec.), nos. 76386/11 and 76408/11, § 13, 31 October 2017), the Court held that the remedy provided under Article 341 of the Code of Criminal Procedure was comparable to a request for the reopening of criminal proceedings and therefore did not fall within the ambit of Article 6 of the Convention. Its function is to allow a re-examination of a case following a conviction that has become final. Accordingly, it does not constitute part of the original criminal process and does not involve a determination of a criminal charge within the meaning of Article 6 § 1 of the Convention. The Court sees no reason to depart from that conclusion in the present case.
21. In view of the foregoing considerations, the complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 November 2025.
Olga Chernishova Peeter Roosma
Deputy Registrar President