Resolution ResDH (2003)5 concerning the judgment of the European Court of Human Rights of 26 September 2000 (final on 26 December 2000) in the case of Biba against Greece

(Adopted by the Committee of Ministers on 24 February 2003 at the 827th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms 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 Biba case delivered on 26 September 2000 transmitted the same day to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 33170/96) against the Hellenic Republic, lodged with the European Commission of Human Rights on 17 February 1996 under former Article 25 of the Convention by Mr Shpetim Biba , an Albanian national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11 declared admissible the complaint that the applicant, who had been sentenced to life imprisonment for murder, was prevented from bringing an appeal on points cf. law in that he did not have the means to engage a lawyer to represent him, that domestic law did not provide for by law free legal assistance and that he was incapable of conducting his appeal in person before the Court of Cassation;

Whereas in its judgment of 26 September 2000 the Court unanimously:

- held that there had been a violation of Article 6, paragraphs 1 and 3 c) of the Convention taken together;

- held that the respondent State was to pay the applicant, within three months from the date at which the judgment became final, 3 000 000 drachmas in respect of non-pecuniary damage; 1 500 000 drachmas in respect of costs and expenses, together with any value-added tax that may be chargeable, less 5 000 French francs to be converted into drachmas at the rate in force on the date of settlement 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 applicant’s claims 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 26 September 2000, having regard to Greece’s obligation under Article 46, paragraph 1, of the Convention 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 preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 20 February 2001, within the time-limit set, the government of the respondent state paid the applicant the sums provided for in the judgment of 26 September 2000,

Declares, after having taken note of 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 (2003)5

Information provided by the Government of Greece during the examination of the Biba case by the Committee of Ministers

The Government reiterates that, in cases of the most serious category of criminal offence ( kakouryimata ), Article 340, paragraph 1, of the Co de of Criminal Procedure provides that the President of the first-instance court must assign counsel to an accused who is not represented in order to assure his defence . Counsel is chosen from a list of lawyers drawn up by the local Bar. Article 376 provides that, at appeal, the President has the same obligation and that Article 340, paragraph 1, applies mutatis mutandis .

The Government notes that the violation of Article 6, paragraphs 1 and 3 c) of the Convention in this case resulted from the case-law of the Court of Cassation according to which the Code of Criminal Procedure did not provide for legal aid for appeals on points of law (Court of Cassation decisions No. 381/1982, Pinika Hronika , vol. 32, p. 928; No. 724/1992, Pinika Hronika , vol. 32, p. 656; and No. 1368/1992).

Immediately after the finding of the violation in this case, the judgment of the European Court of Human Rights was disseminated (in Greek) to the competent services of the Ministry of Justice for consideration on the adoption of the necessary general measures for its execution. It was also published (in Greek) on the official Internet site of the State Legal Council ( www.nsk.gr ).

Act No. 2721/3 June 1999 has added at the end of Article 96 of the Code of Criminal Procedure a new provision (Article 96A) which came into force on 1 July 1999 and which enlarged the possibility to have ex officio free legal aid in cases in which the accused do not have the means to engage a lawyer. More precisely, this provision extends this possibility in cases concerning the less serious category of crime ( plimmelimata ). It also provides for the compulsory appointment ex officio of a lawyer until the end of the proceedings in every instance as well as for the lodging of appeals. Consequently, it covers the whole of proceedings before the Court of Cassation. The lawyer is chosen from a list drawn up by the local Bar every three years in June and transmitted to all courts. The Ministers of Justice and Finance determine, with a common decision, the lawyer fees provided for by the Code of Lawyers.

The Government considers that following the above-mentioned amendment, there is no more risk of violations similar to that found in the present case and that Greece has, consequently, satisfied its obligations under Article 46, paragraph 1, of the Convention.