EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18545/91

Yüksel Nurioglu

against

Greece

REPORT OF THE COMMISSION

(adopted on 11 April 1996)

TABLE OF CONTENTS

        Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-13) 2

III. OPINION OF THE COMMISSION

(paras. 14-26)              4

A. Complaint declared admissible

(para. 14) 4

B. Point at issue

(para. 15) 4

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

(paras. 16-25)              4

CONCLUSION

(para. 26) 5

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              6

I. INTRODUCTION

1. The present Report concerns Application No. 18545/91 introduced on 9 July 1991 against Greece and registered on 18 July 1991.

The applicant is a Greek citizen, born in 1952 and resident in Xanthi .

He was represented before the Commission by Mr. T. Akillioglu , a lawyer practising in Ankara, Turkey.

The respondent Government were 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. M. Basdeki , Assistant Member ( Dikastikos Antiprosopos ) of the Legal Advisory Council of the State.

2. The application was communicated to the Government on 2 March 1994. 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 17 May 1995.  The decision on admissibility is appended to this Report. The Government submitted further information on 21 July 1995.

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 (Second Chamber), after deliberating, adopted this Report on 11 April 1996 in accordance with Article 31 para. 1 of the Convention, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

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. On 29 April 1988 the applicant instituted proceedings before the Council of State ( Simvulio Epikratias ) to challenge the failure of the Minister of Health, Welfare and Social Security to grant him a licence to establish a pharmacy in Xanthi . A hearing was fixed for 29 November 1988. However, as the authorities failed to send to the Council of State the file concerning the applicant's request for a licence in time, the hearing had to be postponed initially to 18 April 1989 and then to 13 February 1990. On 24 January 1990 the Prefecture of Xanthi sent to the Council of State the wrong file and, as a result, the hearing of 13 February 1990 was also postponed to 9 October 1990.

7. On 25 May 1990 the applicant lodged with the Health Directorate of the Prefecture of Rodopi an application for a licence to establish a pharmacy in Komotini , a town near Xanthi . Not having received a reply within three months, as he was entitled to by law, on 28 September 1990 the applicant instituted a second set of proceedings against the Minister of Health, Welfare and Social Security before the Council of State. On 16 September 1991 the President of the competent Fourth Division of the Council of State fixed a hearing for 14 January 1992. On 15 October 1991 the Minister of Health, Welfare and Social Security was notified of the date of the hearing and was requested to transmit the case-file to the Council of State.

8. On 9 October 1990 the applicant informed the Council of State that he did not wish to pursue the first set of proceedings concerning the failure of the Minister to grant him a licence to establish a pharmacy in Xanthi .

9. On 5 November 1991 and in the context of the second set of proceedings, the  Ministry of Health requested the Health Directorate of the Prefecture of Rodopi to send it the case-file together with its views on the applicant's case, which the Ministry would then submit to the Council of State. On 10 December 1991 the Prefecture of Rodopi informed the Ministry that it had not examined the applicant's application because the latter had failed to submit a certified photocopy of the document which recognised the equivalence of his degree from a Turkish university to a degree obtained from a Greek university, although he had been orally informed that the uncertified photocopy of the document submitted could not be taken into consideration. On 20 December 1991 the Ministry submitted the answer of the Prefecture to the Council of State.

10. However, as the case-file submitted by the Ministry to the Council of State was not complete, the Council of State adjourned the hearing of 14 January 1992 to 9 June 1992. On 25 May 1992 the Council of State requested the Prefecture of Rodopi to submit the evidence which was missing. However, the evidence was not submitted in time and the hearing of 9 June 1992 had to be adjourned to 20 October 1992.

11. Faced with further delays in the submission of the evidence by the administrative authorities, the Fourth Division of the Council of State decided to postpone the hearing once more until 30 March 1993 and ordered the Ministry of Health, Welfare and Social Security to send the evidence required within one month. On 18 February 1993 the Prefecture of Rodopi submitted the evidence expressing the view that it had not replied to the applicant's application because two of the documents he had submitted in translation, namely his university degree and a certificate that he had completed his studies, had not been certified by a Greek consular authority.

12. On 30 March 1993 the Council of State heard the applicant's case and on 21 September 1993 it pronounced in his favour . The Council considered that the Prefecture could not rely on the lack of certification of the documents mentioned in its replies of 10 December 1991 and 18 February 1993 to refuse the applicant's application.

13. On 31 March 1995 the applicant was granted a licence to establish a pharmacy in Komotini .

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

14. The Commission has declared admissible the applicant's complaint relating to the length of the proceedings.

B. Point at issue

15. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

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

16. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ..."

17. The applicant submits that the court proceedings complained of involved a determination of his civil right to establish a pharmacy. He attributes the delays in the proceedings to deliberate obstruction by the administrative authorities and lack of diligence on the part of the Council of State.

18. The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention does not apply to disputes concerning claims under public law, such as the applicant's claim to a licence to open a pharmacy. They further submit that the Council of State cannot be held responsible for the delays in the proceedings which were all caused by the applicant's opponent.

19. The Commission notes that the outcome of the proceedings before the Council of State was directly decisive for the applicant's right to establish a pharmacy. This right is civil in nature (see, mutatis mutandis , Eur. Court H.R., König judgment of 26 June 1978, Series A no. 27; Benthem judgment of 23 October 1985, Series A no. 97). It follows that the proceedings involved the determination of a dispute over "civil rights and obligations" and came, therefore, within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

20. The proceedings complained of began on 28 September 1990, when the applicant lodged his action before the Council of State, and ended on 21 September 1993, when the Council of State issued its decision. They lasted, therefore, two years, eleven months and twenty-four days.

21. 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 judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

22. The Commission considers that the case was not particularly complex in law or fact. Moreover, no particular delays are attributable to the applicant. This point is not disputed by the Government.

23. As regards the conduct of the authorities, the respondent Government submit that the delays in the proceedings were due not to the Council of State but to the applicant's opponent. The Commission recalls that the principal cause of the delays in the examination of the applicant's case was three consecutive adjournments ordered by the Council of State on 14 January 1992, 9 June 1992 and 20 October 1992, because of the failure of the applicant's opponent to submit the required evidence. However, the applicant's opponent in the proceedings was no other than the Minister of Health, Welfare and Social Security and the required evidence was no other than the administrative file concerning the applicant's request for a licence which was kept at the Prefecture of Rodopi . In accordance with the Commission's case-law,  the Government is not only answerable for the delays caused by the Council of State but also for the delays caused by the administrative authorities involved in the litigation (see Godard and Egron v. France, Comm. Report 12.10.89, para. 37, D.R. 67 p. 5).

24. Although the reluctance of the authorities to submit the required evidence did not delay the examination of the applicant's case for more than fourteen months and sixteen days, this delay appears particularly serious because of the nature of the proceedings in the context of which it occurred. The Commission notes in this connection that the applicant had instituted the proceedings in order to obtain permission from the Ministry of Health, Welfare and Social Security to exercise his profession and earn his livelihood by establishing a pharmacy in Komotini . Moreover, the proceedings in question came on the heels of another set of proceedings which the applicant had instituted to challenge the refusal of the same Ministry to grant him a licence to establish a pharmacy in Xanthi . Another important element is the fact that the applicant had abandoned the first set of proceedings after they had been seriously delayed because of the failure of the authorities to provide the required evidence.

25. 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

26. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber            President of the Second Chamber

       (M.-T. SCHOEPFER)                      (H. DANELIUS)