Resolution CM/ResDH(2012)32[1]
Execution of the judgment of the European Court of Human Rights
Markoulaki (No. 1) against Greece
(Application No. 44858/04, judgment of 26 July 2007, final on 26 October 2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the insufficient reasoning of the refusal of the Prosecutor before the Criminal Court of Appeals and the Prosecutor before the Court of Cassation to introduce appeal on the merits and on points of law respectively on the applicant’s behalf in criminal proceedings to which the applicant was a civil party (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2012)32
Information about the measures to comply with the judgment in the case of
Markoulaki (No. 1) against Greece
Introductory case summary
The case concerns a violation of the applicant’s right to a fair trial in criminal proceedings for bodily harm through negligence (the applicant’s leg had been amputated), to which the applicant was civil party against her doctor. Under domestic law, when an acquittal has been granted, a civil party is not, in principle, entitled to lodge an appeal directly against the decision granting acquittal. According to judicial practice, however, the civil party has the possibility to request the public prosecutor to lodge an appeal. In the present case, following the doctor’s acquittal at first instance in 2004, the Prosecutor before the Criminal Court of Appeals dismissed the applicant’s request to lodge an appeal on the merits and the Prosecutor before the Court of Cassation refused to lodge an appeal on points of law, by means of a handwritten note containing no reasons (violation of Article 6§1).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
3000 EUR
3000 EUR
Paid on 20/12/2007
b) Individual measures
The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
In its subsequent judgment Gorou (No. 2) (No. 12686/03, judgment of 20/03/2009), the Grand Chamber of the European Court rendered that ‘‘the handwritten note placed on the applicant’s request simply gives information about the discretionary decision taken by the public prosecutor. Seen from that perspective, and having regard to the existing judicial practice, the public prosecutor does not have a duty to justify his response but only to give a response to the civil party. To demand more detailed reasoning would place on the public prosecutor at the Court of Cassation an additional burden that is not imposed by the nature of the civil party’s request for him to appeal on points of law against an acquittal’’ (§42). This case-law was confirmed in the cases Vervesos (No. 14721/06, judgment of 14/05/2009) and Giannatos (No. 12652/07, decision of 02/07/2009). In the decision of inadmissibility in the case of Giannatos, the European Court applied the reasoning of the Gorou No. 2 judgment to refusals of prosecutors at both appeal and cassation.
Following the recent case-law of the European Court the violation of Article 6§1 found in the present case is no longer relevant.
III.Conclusions of the respondent state
The government considers that the payment of just satisfaction and the recent case-law of the European Court have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case and that Greece has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 8 March 2012 at the 1136th Meeting of the Ministers’ Deputies.
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