Resolution ResDH(2006)54 concerning the judgment of the European Court of Human Rights of 23 September 2004 (final on 23 December 2004) in the case of Kotsaridis against Greece

(Adopted by the Committee of Ministers on 2 November 2006, at the 976th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Kotsaridis case delivered on 23 September 2004 and transmitted to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 71498/01) against Greece, lodged with the European Court of Human Rights on 25 June 2001 under Article 34 of the Convention by Mr Michail Kotsaridis , a Greek national, and that the Court declared admissible the complaints concerning a violation of the applicant ' s right to freedom and security of person, in April 2000 the indictment chamber of the Athens Court of Appeal rejected his petition for a hearing concerning the extension of his pre-trial detention and the excessive length of the criminal proceedings brought against him;

Whereas in its judgment of 23 September 2004 the Court unanimously held:

- that there had been a violation of Article 5, paragraph 4, of the Convention;

- that there had been a violation of Article 6, paragraph 1, of the Convention;

- that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final 5 000 euros in respect of non-pecuniary damage; 3 000 euros in respect of costs and expenses and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points would be payable from the expiry of the above-mentioned three months until settlement;

- dismissed unanimously, the remainder of the applicant ' s claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 23 September 2004, having regard to Greece ' s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Recalling, in this context, that the obligation of all member states to abide by the judgments of the European Court of Human Rights in accordance with Article 46, paragraph 1, of the Convention involves an obligation to adopt rapidly individual measures in order to grant the applicants, to the extent possible, full redress for the violations found ( restitutio in integrum ), as well as to adopt without delay general measures, including, to the extent possible, interim measures, to stop ongoing violations of the Convention and to prevent the reoccurrence of violations similar to those found by the Court;

Recalling, moreover, the Committee of Ministers ' Declaration of 12 May 2004 on ensuring the effectiveness of the implementation of the Convention at national and European levels and the various Recommendations referred to therein, in particular Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing law and administrative practice with the standards laid down in the Convention and Recommendation Rec(2004)6 on the improvement of domestic remedies;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual measures adopted for the acceleration of pending criminal proceedings and general measures taken preventing new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 15 March 2005, within the time-limit set, the government of the respondent state paid the applicants the sums provided in the judgment of 23 September 2004,

Declares, after having examined the information supplied by the Government of Greece, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2006)54

Information provided by the Government of Greece during the examination of the Kotsaridis case

by the Committee of Ministers

The judgment of the Court was rapidly transmitted to the courts involved in order to draw their attention to their obligation under Article 46, paragraph 1, of the Convention to accelerate, as far as possible, the excessively long proceedings at issue. The proceedings pending at the time of the European Court ' s judgment were ended by judgment No. 37/2005 of the Athens Assize Court imposing on the applicant a penalty of eight years, ten months and four days on account of smuggling antiques.

II.1 As regards the violation of Article 5, paragraph 4 , to prevent as far as possible new violations and as an interim measure, the European Court ' s judgment was promptly translated and published on the official website of the State Legal Council ( www.nsk.gr ). It was also promptly sent out to the Ministry of Justice and competent judicial authorities.

In addition, soon after the European Court ' s judgment, a legislative amendment procedure was initiated in order to fully abide by it. Thus, Law 3346/2005 was adopted and entered into force on 17 June 2005. This Law amended Article 287, paragraph 1(a), of the Code of Criminal P rocedure which now provides, in conjunction with Article 287, paragraph 1(b), that at least five days before the session of the indictment chamber deciding upon extension of pre-trial detention, the person concerned should always be summoned to appear before the chamber and present his views in person or through his legal counsel. The chambers may now reach a decision – which is always reasoned - only after having heard the person concerned, or his counsel, and the prosecutor.

II.2 As regards the violation of Article 6, paragraph 1 , Greece has adopted a series of legislative and other measures to accelerate proceedings before criminal courts (see Final Resolution DH(2005)66 on Tarighi Wageh Dashti and 7 other cases against Greece, 18 July 2005), with a view to preventing similar violations.

In addition, the Greek authorities envisage legislation to introduce into Greek law an effective remedy for this kind of violations, in accordance with the Committee of Ministers ' Recommendation Rec(2004)6 on the improvement of domestic remedies.

The Government of Greece considers, in view of the measures taken, that the violations of the Convention found by the European Court in this case have been fully remedied and that Greece has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.