Information Note on the Court’s case-law 184
April 2015
Vamvakas v. Greece (no. 2) - 2870/11
Judgment 9.4.2015 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Positive obligations
Article 6-3-c
Defence through legal assistance
Dismissal of appeal on points of law owing to unexplained absence of court appointed lawyer: violation
Facts – In June 2009 the applicant appealed on points of law against a judgment of the Criminal Court of Appeal sentencing him to seven years’ imprisonment for fraud and forgery to the detriment of a bank. In January 2010, at the request of the applicant, who was in prison, the President of the Court of Cassation appointed a lawyer to represent him in the proceedings before it.
In a judgment of February 2010 the Court of Cassation dismissed the appeal on the grounds that the applicant, who had been duly summoned to the hearing in a timely manner, had not appeared. According to the applicant, he had, from the prison, contacted the appointed lawyer, who had assured him that he would be present at the hearing. However the lawyer did not turn up and never informed the applicant of the reasons for his absence, neither before nor after the hearing.
Law – Article 6 § 1 in conjunction with Article 6 § 3 (c): The Court of Cassation had appointed a lawyer to represent the applicant in the proceedings before it.
Where a lawyer, especially one who had been officially assigned, decided not to act in a case or was prevented from appearing at a hearing, he or she had a duty to inform the assigning authority of the situation and to do all that was necessary as a matter of urgency to preserve his or her client’s rights and interests.
The applicant’s lawyer did not seem at any time to have explained that he was unable to pursue his mission.
Since it was impossible under Greek law to reverse a decision to find an appeal on points of law inadmissible, it had been for the Court of Cassation to enquire about the reasons for the lawyer’s failure to appear, after being officially assigned, and to ensure that the applicant’s interests were protected.
The unexplained absence of the applicant’s lawyer from the hearing held one month and three days after his appointment, without any request for adjournment having been received from him – or even if such a request had been filed unlawfully, as the applicant contended – constituted a situation of “manifest default”, calling for positive measures on the part of the competent authorities. The Court of Cassation should have adjourned its proceedings in order to clarify the situation rather than dismiss the appeal on points of law as if it were not maintained.
Regardless of the circumstances – whether there had been no contact at all or an invalid request for an adjournment – the competent court had had a positive obligation to ensure practical and effective respect for the applicant’s defence rights. As that had not been the case, the Court found a breach of the requirements of Article 6 §§ 1 and 3 (c) of the Convention, taken together.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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