Resolution ResDH (2002)102 concerning the judgment of the European Court of Human Rights of 9 June 1998 in the case of Twalib against Greece

(Adopted by the Committee of Ministers on 21 October 2002 at the 810th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 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 Twalib case delivered on 9 June 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 24294/94) against Greece, lodged with the European Commission of Human Rights on 6 April 1993 under former Article 25 of the Convention by Mr Mosses Twalib , a Tanzanian national, and that the Commission declared notably admissible the complaints that: first, the applicant’s lawyer (assigned by the court) had not had sufficient time and facilities to prepare his defence at first instance; secondly that under domestic law it had not been possible for the applicant (who did not have the means to engage a lawyer) to obtain free legal assistance in connection with his appeal on grounds of law to the Court of Cassation while he could not present himself his appeal and he was sentenced to twelve years’ imprisonment and a fine of 6 000 000 drachmas for drug-related offences;

Recalling that the case was brought before the Court by the Commission on 16 April 1997;

Whereas in its judgment of 9 June 1998 the Court:

- joined, unanimously to the merits the Government’s preliminary objection and dismissed it unanimously;

- held, by six votes to three, that there had been no violation of Article 6, paragraph 1, in conjunction with paragraph 3 b ) of the Convention;

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

- held, unanimously, that the government of the respondent state was to pay the applicant, within three months, 1 500 000 drachmas in respect of non-pecuniary damage, 2 000 000 drachmas in respect of costs and expenses together with any value-added tax that may be chargeable, less 20,298 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, unanimously, the remainder of the 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 as amended by Protocol No. 11, these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 9 June 1998, having regard to Greece’s obligation under former Article 53 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 9 September 1998 the government of the respondent state paid the applicant the sum provided for in the judgment of 9 June 1998,

Declares, after having taken note of the information suppli ed by the Government of Greece, that it has exercised its functions under Article 46 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH (2002)102

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

The Government recalls that, in cases of the most serious category of criminal offence ( kakouryimata ), Article 340 § 1 of the Code 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 § 1 applies mutatis mutandis .

The Government notes that the violation of Article 6, paragraph 1 taken together with 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).

Directly after the finding of the violation in this case, the judgment of the Court 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) and commented in the “ Piniki Dikaiosini ” , (1998, p. 669) a journal largely disseminated in judicial circles.

Act No. 2721/03/06/1999 has added at the end of Article 96 of the Code of Criminal Procedure a new provision (Article 96A) which came into force on 01/07/1999 and which enlarges the court’s obligation to provide free legal assistance to have in cases in which the accused do not have the means to engage a lawyer. More precisely, this provision extends, on the one hand this possibility in cases concerning the less serious category of crime ( ( plimmelimata ). On the other hand, it 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 remedies. Consequently, it covers the whole 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’s fees provided for by the Code of Lawyers.

The Government considers that following the above-mentioned amendment to the Code of Criminal Procedure, 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, (former Article 53) of the Convention.