Resolution ResDH (2004)2

concerning the judgment of the European Court of Human Rights of 28 June 2001 (final on 28 September 2001) in the case of Agoudimos and Cefallonian Sky Shipping Co. against Greece

(Adopted by the Committee of Ministers on 24 February 2004 at the 871st meeting of the Ministers’ Deputies)

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

Having regard to the judgment of the European Court of Human Rights in the case of Agoudimos and Cefallonian Sky Shipping Co. delivered on 28 June 2001 and transmitted once it had become final to the Committee of Ministers under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 38703/97) against Greece, lodged with the European Commission of Human Rights on 19 September 1997 under former Article 25 of the Co n vention by Mr Dimitrios Agoudimos , a Greek national, and by a company incorporated under Greek law, Cefallonian Sky Shipping Co., and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible their complaint that legislative interference in litigation before the Court of Cassation between the applicants and the sailors’ social security fund (NAT) amounted to a violation of their right to a fair trial;

Whereas in its judgment of 28 June 2001 the Court unanimously:

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

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, 2 500 000 drachmas in respect of non-pecuniary damage; 7 700 US dollars in respect of costs and expenses, together with any value-added tax that might be chargeable and that simple interest at an annual rate of 6% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants’ claim for just satisfa c tion;

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 mea s ures which had been taken in consequence of the judgment of 28 June 2001, having regard to Greece’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken to erase the consequences of the violation for the applicant and to prevent new violations similar to those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 17 January 2002, after expiry of the time-limit set, the government of the respondent state had paid the a p plicant the sums provided for in the judgment of 28 June 2001, together with the default interest due,

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

Appendix to Resolution ResDH (2004)2

Information provided by the Government of Greece during the examination of the Agoudimos and Cefallonian Sky Shipping Co. case

by the Committee of Ministers

The violation found by the European Court of Human Rights in this case had its origin in a dispute over the applicants’ liability for contributions to the sailors’ social security fund (NAT) by the previous owner of a ship they had bought on 06/02/1983 at public auction. NAT won at first instance and the applicants on appeal. The Court of Cassation (judgment No. 472/16.04.1997), applying the existing legislation at the time of the sale, found against the applicants and drew a further argument from Act 1711/1987 (adopted following the appeal decision) which, although interpreting the existing provisions, actually determined the substance of the dispute retrospectively, establishing buyers’ liability in case of public auctions. The case was thereafter referred back to the Piraeus Court of Appeal for a new decision. The European Court found that the state had intervened in the proceedings in a decisive manner favourable to itself.

The government recalls that Article 28, paragraph 1, of the Greek Constitution provides that the Convention is part of the national legal order and its provisions prevail over every other legislative provision. It also draws attention to the direct effect of the Convention and of the Court’s case-law in Greek law (as shown e.g. in Resolution DH(99)74 in the Papageorgiou case and by other examples of domestic case-law, especially the judgments 33/2002 and 14/1999 of the Court of Cassation, plenary; judgment 954/1999 of the Athens Court of Appeal; judgment 1141/1999 of the Supreme Administrative Court, 1st Chamber; etc.).

Given that direct effect, and the measures taken to ensure that judges of courts of first instance and of appeal are aware of the obligation to avoid applying laws which are incompatible with the Constitution and the Convention (Circular No. 29 issued by the President of the Court of Cassation on 06/02/2002), the government is satisfied that new, similar violations will be prevented.

The government also recalls that the judgment was covered by the national press (see the newspaper Kathimerini of 14.02.2002, Greek and English edition, www.kathimerini.gr ).

As regards the situation of the applicants, the Piraeus Court of Appeal, in the proceedings ordered by the Court of Cassation, quashed the judgment of the first instance court (judgment No. 681/29-06-2001) on the grounds that, independently of the findings of the Court of Cassation, the act of assessment of the debt to NAT had already been declared void by a previous final judgment and that the debt was already prescribed.

With regard to the seizure of the first applicant’s property as security for the claims of NAT (see paragraph 18 of the judgment), it was lifted on 19 June 2001 following judgment No. 280/1999 of the Piraeus Administrative Court of first instance upheld by judgment No. 1964/2000 of the Piraeus Administrative Court of Appeal.

The Government considers, in the light of the above, that there is no longer any risk of a repetition of the violation found in the present case and that Greece has thus fulfilled its obligations under Article 46 in this case both as regards general and individual measures.