Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27159/95

Nicholas Stamoulakatos

against

Greece

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-18) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

A. The particular circumstances of the case

(paras. 7-17) . . . . . . . . . . . . . . . . . . . . . . . .2

B. Relevant domestic law

(para. 18). . . . . . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 19-38). . . . . . . . . . . . . . . . . . . . . . . . . . .4

A. Complaints declared admissible

(para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .4

B. Points at issue

(para. 20). . . . . . . . . . . . . . . . . . . . . . . . . .4

C. As regards Article 6 para. 1 of the Convention

(paras. 21-32). . . . . . . . . . . . . . . . . . . . . . . .4

CONCLUSION

(para. 33). . . . . . . . . . . . . . . . . . . . . . . . . .6

D. As regards Article 13 of the Convention

(paras. 34-35). . . . . . . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 36). . . . . . . . . . . . . . . . . . . . . . . . . .6

E. Recapitulation

(paras. 37-38). . . . . . . . . . . . . . . . . . . . . . . .6

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .7

I. INTRODUCTION

1. The present Report concerns Application No. 27159/95 introduced

on 1 April 1995 against Greece and registered on 7 April 1995.

The applicant is a Greek national born in 1936 and resident in

London.

The respondent Government are represented by their Agent,

Mr. L. Papidas, President of the Legal Advisory Council of the State

(Nomiko Simvulio tu Kratus), Mr. V. Kontolaimos, Deputy Member

(Paredros) of the Legal Advisory Council of the State, and

Mrs. V. Pelekou, Assistant Member (Dikastikos Antiprosopos) of the

Legal Advisory Council of the State.

2. The application was communicated to the Government on

6 September 1995. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 12 April 1996. The

decision on admissibility is appended to this Report.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 4 September 1996 in accordance

with Article 31 para. 1 of the Convention, the following members

being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Greece.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In his application, in which he relies on Article 6 para. 1 of

the Convention, the applicant complains of the length of the

proceedings he instituted before the Audit Court to challenge the

refusal of the authorities to grant him a pension.

A. The particular circumstances of the case

7. On 23 February 1987 the applicant submitted to the Prefecture

of Athens an application for a disability pension under Article 31 of

law 1543/85.

8. An administrative inquiry was carried out by the Municipality

of Moshato which concluded on 15 December 1987 that the applicant was

entitled to a pension because he had been tortured during the

dictatorship and had suffered, as a result, irreparable damage to his

health.

9. On 29 January 1988 the Health Committee of the Prefecture of

Athens advised the General Accounting Office of the State to grant

the applicant a pension. The Health Committee considered that the

applicant had been incarcerated because of his activities against the

military dictatorship and had been tortured. As a result, his right

hand had been paralysed.

10. On 23 May 1988 the General Accounting Office (Geniko Logistirio

tu Kratus) rejected the applicant's application on the ground that

the conditions of Article 31 of law 1543/85 were not fulfilled. The

General Accounting Office considered that the applicant's allegations

were not proved by court decisions or public documents issued before

14 June 1984 and that the applicant had not been wounded as a result

either of his direct involvement in the struggle against the

dictatorial regime or his opposition thereto. On 14 June 1988 the

applicant appealed to the Audit Court (Elengtiko Sinedrio).

11. The applicant's appeal was heard by the Third Chamber of the

Audit Court on 2 December 1988. It was rejected on 10 March 1989. The

Third Chamber considered that the applicant's allegations were not

proven by a court decision or public document issued before

14 June 1984. It also found that the torturing of the applicant

during the dictatorship did not result in a "wounding" but in an

"illness". The law, however, provided for the award of a pension to

persons who had been "wounded" as a result of their opposition to the

dictatorship.

12. On 17 April 1989 the applicant appealed in cassation to the

Audit Court sitting in Plenary claiming that the Third Chamber had

committed an error of law.

13. The Plenary held a hearing on 9 October 1991 at which the

applicant did not appear. On 24 June 1992 the Audit Court decided

that the applicant had not been duly summoned and adjourned the case.

14. Another hearing was held on 4 November 1992 at which the

applicant was duly represented. On 26 May 1993 the Audit Court upheld

the applicant's appeal on the ground that the Third Chamber had

failed to examine in depth the cause of the applicant's right hand

paralysis. It sent the case back to its Third Chamber for

reconsideration.

15. The Third Chamber held a hearing on 22 October 1993 at which the

applicant was neither present nor represented. On 28 January 1994 it

decided to adjourn the case. It ordered the applicant to produce

within two months a number of decisions issued in the context of

criminal proceedings against the applicant before 14 June 1984. It

also sent the applicant's file to the Health Committee of the Region

of Attica ordering it to examine the applicant and to deliver an

opinion on the following issues: Was the applicant's paralysis the

result of "wounding" or "illness"? What was the extent of his

disability? Was there any relationship between his disability and his

activities during the dictatorship?

16. On 25 November 1994 the Health Committee considered that it

could not deliver an opinion on the applicant's case in the absence

of any evidence that the applicant's health condition was related to

his activities during the dictatorship. On 29 March 1995 the

applicant was informed of the Committee's decision not to deliver an

opinion.

17. On 6 October 1995 a new hearing was held in the applicant's

case. The decision of the Third Chamber of the Audit Court has not

yet been issued.

B. Relevant domestic law

18. Article 31 of law 1543/85 provides the following:

"All Greek citizens who were wounded as a result either of

their direct involvement in the struggle against the

dictatorial regime of 21 April 1967 to 23 July 1974 or their

opposition to the above-mentioned regime are entitled to a

pension paid by the State Treasury, if the above-mentioned

circumstances have been recognised in a court decision or a

public document issued before 14 June 1984. ..."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

19. The Commission has declared admissible the applicant's

complaints that his case has not been heard within a reasonable time

and that he did not have an effective remedy.

B. Points at issue

20. The issues to be determined is, first, whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention and,

secondly, whether there has been a violation of Article 13 (Art. 13)

of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

21. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

22. The proceedings in question concern the applicant's claim to a

pension under a scheme for persons who have suffered during the

dictatorship. The purpose of the proceedings is to obtain a decision

in a dispute over "civil rights and obligations", and they

accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of

the Convention.

23. These proceedings, which began on 14 June 1988 and which are

still pending, have lasted to date eight years two months and

20 days.

24. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of

the case, the conduct of the parties and the conduct of the

authorities dealing with the case (see Eur. Court H.R., Vernillo

v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,

para. 30).

25. The Government submit that there were no delays before the Audit

Court until 10 March 1988. All subsequent delays, including the delay

caused by the adjournment of 24 June 1992, must be attributed to the

failure of the applicant to indicate one single address for the

purposes of notification of the various court summonses. Once the

address of the applicant was established and the proceedings were

resumed, there were no further delays which could be attributed to

the State authorities. Moreover, the applicant's case was complex and

he failed to cooperate in the proceedings as he never submitted any

documents to substantiate his allegations.

26. The Commission notes that the case is not particularly complex.

It further considers that the applicant's conduct is not in itself

sufficient to explain the length of the proceedings. The public

authorities are, on the contrary, responsible for a number of delays.

27. The Commission notes, in this connection, that there was a

period of inactivity of almost eighteen months between 17 April 1989,

the date of the applicant's appeal against the decision of

10 March 1989 of the Third Chamber of the Audit Court, and the

hearing before the Plenary on 9 October 1991. The Commission

considers that there is nothing to indicate that this delay was

linked to the alleged inability of the court authorities to locate

the applicant. In any event, on 24 June 1992 the Audit Court, sitting

in Plenary, found that the applicant had not been properly served

with the summons.

28. The Commission further considers that the nature of the issues

raised in the applicant's appeal cannot justify the delay of eight

months between the hearing of 9 October 1991 and the delivery of the

decision of the Audit Court on 24 June 1992. Moreover, the Commission

considers that the State authorities are responsible for a delay of

eleven months between the decision of the Plenary of 24 June 1992 and

its decision of 26 May 1993. This delay was caused by the fact that

the applicant's appeal had to be re-heard, because the authorities

had failed to summon the applicant in accordance with the law.

29. The Commission also notes that, despite the previous delays, the

Third Chamber of the Audit Court did not resume the examination of

the applicant's case before 22 October 1993, i.e. five months after

the decision of 26 May 1993 of the Plenary admitting the applicant's

appeal. Moreover, although the Third Chamber ordered the Health

Committee to deliver an opinion on the applicant's case on 28 January

1994, the Health Committee decided that for technical reasons it

could not do so on 25 November 1994, i.e. ten months later. The

Commission considers that this delay is not justified by the nature

of the issues which the Health Committee must have considered to

reach such a conclusion.

30. Finally, the Commission notes that the Third Chamber resumed the

examination of the case on 6 October 1995, i.e. ten and a half months

after the decision of the Health Committee. The Commission considers

that there is no indication that this delay was due to the

applicant's failure to comply with the order of 28 January 1994 of

the Third Chamber of the Audit Court to produce certain decisions.

31. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision on

disputes relating to civil rights and obligations within a reasonable

time (cf. Eur. Court H.R., Vocaturo v. Italy judgment of 24 May 1991,

Series A no. 206-C, p. 32, para. 17).

32. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

33. The Commission concludes, by 12 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D. As regards Article 13 (Art. 13) of the Convention

34. Article 13 (Art. 13) of the Convention provides as follows :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before

a national authority notwithstanding that the violation has

been committed by persons acting in an official capacity."

35. In view of its decision concerning Article 6 para. 1 (Art. 6-1)

the Commission does not consider it necessary also to examine the

case under Article 13 (Art. 13) of the Convention (Eur. Court H.R.,

Pizzetti v. Italy judgment of 26 February 1993, Series A no. 257, p.

37, para. 21).

CONCLUSION

36. The Commission concludes, by 12 votes to 1, that it is not

necessary also to examine the case under Article 13 (Art. 13) of the

Convention.

E. Recapitulation

37. The Commission concludes, by 12 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see

para. 33).

38. The Commission concludes, by 12 votes to 1, that it is not

necessary also to examine the case under Article 13 (Art. 13) of the

Convention (see para. 36).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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STAMOULAKATOS v. GREECE

STAMOULAKATOS v. GREECE