Absence of assigned counsel: Court of Cassation failed to ensure practical and effective respect for defence rights
JUDGMENT
Vamvakas v. Greece 09.04.2015 (no. 2870/11)
SUMMARY:
The case concerned the unexplained absence of the applicant’s assigned counsel from a Court of Cassation hearing in the criminal proceedings against him.
The Court found that the Court of Cassation had failed to ensure practical and effective respect for Mr Vamvakas’ defence rights. When faced with the manifest default of the assigned lawyer, it should have adjourned the proceedings to clarify the situation rather than dismiss the appeal on points of law as not maintained, especially as the decision was final.
COMMENT
The absence of an attorney-at-law in court consists a reason for postponing.
PROVISIONS:
Article 6 § 3
Article 6§1
PRINCIPAL FACTS
The applicant, Alexandros Vamvakas, is a Greek national who was born in 1953.
On 16 January 2006 Mr Vamvakas was sentenced to eight years’ imprisonment for fraud and forgery to the detriment of a bank. When a hearing was to be held on 20 May 2009, Mr Vamvakas informed the Criminal Court of Appeal that he would not be present but would be represented by two lawyers. However, neither of them turned up. The court assigned him a lawyer and adjourned the hearing until 27 May 2009 to give the lawyer time to study the file.
On 27 May 2009 the Court of Appeal reduced Mr Vamvakas’ sentence to seven years’ imprisonment.
On 1 June 2009 Mr Vamvakas appealed on points of law and asked the President of the Court of Cassation to assign him a lawyer to represent him in the proceedings. In the light of Mr Vamvakas’ indigence, on 2 January 2010 the President appointed Mr F.K. to represent him at any hearings.
In a judgment of 25 February 2010 the Court of Cassation dismissed the appeal on the grounds that the applicant, who had been summoned to the hearing, had not appeared. According to Mr Vamvakas, he had contacted Mr F.K., who had assured him that he would be at the hearing; however, Mr F.K. did not attend the hearing nor did he inform Mr Vamvakas of the reasons for his absence, either beforehand or afterwards.
THE DECISION OF THE COURT
Article 6 §§ 1 and 3 (c) (right to a fair hearing and right to be assisted by counsel)
As the Court had stated on many occasions, the purpose of the Convention was to protect rights that were not theoretical or illusory but practical and effective, and the appointment of counsel did not in itself ensure the effectiveness of defence rights. The State sometimes had to act where problems of representation before the courts were drawn to its attention. However, Article 6 § 3 (c) obliged authorities to intervene only where the default of an assigned lawyer was manifest. In such cases, when put on notice, the competent authorities had to replace the defaulting lawyer or oblige him to perform his mission, without which the notion of free legal assistance would be meaningless.
Where a lawyer, especially one who had been officially assigned, decided not to act in a case or was prevented from appearing at a hearing, he or she had a duty to inform the assigning authority of the situation and to do all that was necessary as a matter of urgency to preserve his or her client’s rights and interests. Mr Vamvakas’ lawyer, appointed on 2 January 2010 for the hearing of 5 February 2010, did not seem at any time to have explained that he was unable to pursue his mission. It was unlikely that, as he had said, he had contacted the registry of the Court of Cassation to request the adjournment of the hearing, because he would certainly have been informed that a telephone call was not a proper means of notification for that purpose under domestic law – it was necessary for a written request to be sent or for a fellow lawyer to appear on the day of the hearing to ask for an adjournment.
Since it was impossible under Greek law to reverse a decision to find an appeal on points of law inadmissible, it had been for the Court of Cassation to enquire about the reasons for the non-appearance of Mr Vamvakas’ lawyer. The Court of Cassation had indeed been confronted with a situation of “manifest default” – the unexplained absence of the lawyer Mr F.K. from the hearing held one month and three days after his appointment, without any request for adjournment having been received from him – requiring the court to adjourn its proceedings in order to clarify the situation rather than dismiss the appeal on points of law as not maintained.
Consequently, as the Court of Cassation had failed to ensure practical and effective respect for Mr Vamvakas’ defence rights, the Court found that there had been a violation of Article 6 §§ 1 and 3 (c).
Article 41 (just satisfaction)
The Court held that Greece was to pay Mr Vamvakas 2,000 euros (EUR) in respect of non-pecuniary damage(echrcaselaw.com editing).
