Published on 28 February 2022

FIRST SECTION

Application no. 63728/16 Maria BANAKOU against Greece lodged on 25 October 2016 communicated on 7 February 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s conviction for failure to pay her employer’s contributions to the social security fund. Following two adjournments of the appeal hearing, the Court of Appeal confirmed the first instance conviction of the applicant judging her by default, but as if she were present. The applicant filed an application for annulment of the appeal proceedings under Article 341 of the Code of Criminal Procedure. She argued that owing to force majeure (namely a health issue) she had been unable to attend the resumed appeal hearing in order to request again an adjournment due to her lawyer’s absence. The court rejected her application as inadmissible on the grounds that an application under Article 341 could only be lodged by defendants tried in absentia under Article 501 § 1 of the Code of Criminal Procedure and not by defendants tried “as if present” under § 4 of the same provision. The prosecutor of the Court of Cassation held that the Court of Appeal correctly rejected the application for annulment, noting that the appeal judgment that had confirmed the conviction was not irrevocable ( ανέκκλητη ), as required by Article 341 § 2 of the Code of Criminal Procedure, but final ( τελεσίδικη ), and could therefore only be subject to an appeal on points of law.

QUESTIONS TO THE PARTIES

1. Was Article 6 of the Convention applicable to the proceedings conducted in the present case (see Kokkonis and Chalilopoulou v. Greece (dec.), nos. 76386/11 and 76408/11, §§ 13 ‑ 14, 31 October 2017)?

2. If so, have the domestic decisions violated the applicant’s right to be present at the appeal hearing and to defend herself in person within the meaning of Article 6 §§ 1 and 3 (c) of the Convention? In particular, was the distinction between defendants unable to appear at the first appeal hearing owing to force majeure and tried in absentia (who are entitled to apply for an annulment of the proceedings), and defendants, such as the applicant, unable to attend the resumed appeal hearing owing to force majeure and tried “as if present” (who are not entitled to apply for an annulment), justifiable under these provisions?