Resolution CM/ ResDH (2010)195 [1]

Execution of the judgments of the European Court of Human Rights

Alija , Dimitrellos and Papa against Greece

(Applications No. 73717/01, No 75483/01 and No 21091/04, judgments of 7 April 2005,

final on 7 July 2005 and of 6 July 2006, final on 6 October 2006)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the applicants ’ right to a fair trial, in that the competent criminal courts rejected without sufficient reasoning their claims, following their acquittal, concerning compensation for their pre-trial detention (violations of Article 6, paragraph 1) (see details in Appendix);

Recalling that the case of Alija also concerns the insufficient reasoning of the refusal of the Prosecutor before the Court of Cassation not to introduce an appeal on points of law on the applicant ’ s behalf (violation of Article 6, paragraph 1, of the Convention)

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

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 a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions unde r Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)195

Information on the measures taken to comply with the judgments in the cases of

Alija , Dimitrellos and Papa against Greece

Introductory case summary

These cases concern the violation of the applicants ’ right to a fair trial, in that in 2000 and in 2003 respectively, the relevant criminal courts that heard their applications, rejected without sufficient reasoning their claims, following their acquittal, concerning compensation for their pre-trial detention.

The European Court found that the criminal courts concerned had dismissed the applicants ’ claims for compensation on the sole ground that, when they were placed in detention, there had been serious evidence of their guilt, thus merely reiterating the terms of the relevant provision (Article 533§2 of the Code of Criminal Procedure) (violations of Article 6§1).

The Alija case also concerns the fact that the Prosecutor before the Court of Cassation in 2000 refused, in a handwritten annotation on the applicant ’ s request, to introduce an appeal on points of law on the applicant ’ s behalf, without sufficient reasoning (violation of Article 6§1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary and non-pecuniary damage

Costs and expenses

Total

Alija, no 73717/01

-

10 000 EUR

Paid on 27/09/2005

Dimitrellos , no 75483/01

10 000 EUR

-

10 000 EUR

Paid on 15/09/2005

Papa, no 21091/04

10 000 EUR

881 EUR

10 881 EUR

Paid on 27/12/2006

b) Individual measures

Following the European Court ’ s judgments, the applicants are entitled to request reopening of the compensation proceedings under Article 525A of the Code of Criminal Procedure. The European Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The cases are similar to that of Georgiadis against Greece, judgment of 29/05/1997, following which Greece adopted constitutional and statutory measures in order to abide by the European Court ’ s case-law (see Final Resolution ResDH (2004)82 and Appendix thereto).

In addition, old paragraph 2 of Article 533 of the Code of Criminal Procedure has been abrogated and substituted by old paragraph 3 of the same Article. Therefore, the ground for dismissing a claim for compensation of a person who, before his acquittal, spent time in pre-trial detention, if "the facts in question constituted serious evidence of his guilt” no longer exists.

Furthermore, as far as the Prosecutor ’ s refusal is concerned, in its judgment Gorou (No. 2) (No. 12686/03, of 20/03/2009), the Grand Chamber found 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 posterior jurisprudence is, by way of analogy, applied in the present case.

These measures have remedied all the aspects of the violations of Article 6§1.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations 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 2 December 2010 at the 1100th meeting of the Ministers’ Deputies