Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 18996/91

Garyfallou A.E.B.E.

against

Greece

REPORT OF THE COMMISSION

(adopted on 11 April 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-13) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-31) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 19-26). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 27-31). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 32-55) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 32). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

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

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

(paras. 34-54). . . . . . . . . . . . . . . . . . .6

1. The applicability of Article 6 para. 1

of the Convention

(paras. 35-41) . . . . . . . . . . . . . . . .6

2. Compliance with Article 6 para. 1

of the Convention

(paras. 42-54) . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 55). . . . . . . . . . . . . . . . . . . . .9

SEPARATE CONCURRING OPINION OF MR. B. CONFORTI. . . . . . . 10

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The application was introduced by Ch. Garyfallou A.E.B.E., a

company registered under Greek law. The applicant company was

represented before the Commission by Mr. P. Bernitsas and

Ms. D. Mirasgezi, attorneys-at-law practising in Athens.

3. The application is directed against Greece. 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. Ch. Sitara, Assistant Member (Dikastikos

Antiprosopos) of the Legal Advisory Council of the State.

4. The case concerns the length of proceedings instituted by the

applicant company to challenge a fine imposed on it for having violated

certain rules concerning import and export trade. The applicant company

invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 12 October 1991 and registered

on 17 October 1991.

6. On 7 September 1993 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant company's complaint under Article 6 para. 1 of

the Convention concerning its right of access to court.

7. The Government's observations were submitted on 11 November 1993.

On 18 January 1994 the applicant company submitted its observations in

reply. These observations were received on 31 March 1994.

8. On 2 December 1994 the Commission decided to invite the parties

to a hearing on the admissibility and merits. On 16 January 1995 the

applicant company submitted the following: "When the initial

application was lodged it was clear that the applicant was deprived of

his right to be heard by a competent court. Subsequently, ... law

1968/1991 granted the applicant the right to apply once more for the

same matter. The applicant lodged a new recourse... Irrespective of the

outcome of the judicial proceedings before the Council of State the

Greek Government failed to provide the applicant with an effective

remedy within a reasonable period of time in violation of Article 6 of

the Convention." In the light of the above, the applicant company

requested the Commission to clarify any outstanding issues by means of

a written procedure.

9. On 19 January 1995 the Commission decided to cancel the hearing

and to invite the parties to submit observations on the complaint

regarding the length of the proceedings.

10. Additional observations were submitted by the Government on

18 April 1995 and by the applicant company on 23 June 1995.

11. On 24 October 1995 the Commission declared admissible the

applicant company's complaint concerning the length of the proceedings

under Article 6 para. 1 of the Convention. It declared inadmissible

the remainder of the application.

12. The text of the Commission's decision on admissibility was sent

to the parties on 6 November 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

Government did not avail themselves of this opportunity. The applicant

company submitted further information on 14 December 1995.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission

(First Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

15. The text of this Report was adopted on 11 April 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

16. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

17. The Commission's decision on the admissibility of the application

is annexed hereto.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

19. On 24 March 1986 the Deputy Minister of Commerce ordered under

Article 8 para. 2 of Law 936/1979 the applicant company to pay a fine

of 500,000 drachmas for having violated the rules concerning import and

export trade, when importing glass panels of a total value of

DM 15,050.

20. On 9 April 1986, the applicant company challenged the fine before

the First Instance Administrative Court (Diikitiko Protodikio) of

Athens. In its judgment of 8 April 1987 (No. 5214/1987) the court

considered that the applicant company's recourse (prosfigi) did not

give rise to a dispute coming within the competence of the lower

administrative courts (diikitiki diafora usias); it was in reality an

action for annulment (akirotiki diafora) coming within the competence

of the Council of State (Simvulio tis Epikratias). As a result, it

decided to refer the case to the Council of State.

21. The case was put before the Fourth Division of the Council of

State on 24 August 1987 and a hearing was initially fixed for

19 April 1988. That hearing was, however, adjourned and so were the

hearings fixed for 7 February 1989, 5 December 1989, 6 February 1990,

5 June 1990 and 4 December 1990. The case was, finally, heard on

8 January 1991.

22. In the meantime the Council of State, sitting in plenary, issued

decision No. 149/1990 in which it considered that there did not exist

any general principle or specific legal provisions which provided for

the referral to the Council of State of actions for annulment which had

been wrongly introduced before the lower administrative courts.

23. On 16 April 1991 the Fourth Division of the Council of State,

following the decision of the Plenary, held that the applicant

company's action for annulment had not been introduced in accordance

with the law and decided to refrain from hearing the case (decision

No. 1260/1991).

24. On 11 October 1991 Law 1968/1991 was promulgated allowing in

Article 40 para. 2 for the re-introduction before the competent court

of legal actions which had been rejected by the Council of State or the

administrative courts on a number of grounds, including actions which

the Council of State had refrained from examining for lack of

competence.

25. The applicant company re-introduced its action for annulment

before the Council of State on 10 February 1992 and a hearing was fixed

for 18 October 1994. On that date the examination of the case was

adjourned until 30 May 1995, when a further adjournment was ordered.

26. On 28 November 1995 a hearing was held. The judge rapporteur

considered that the Council of State was not competent to deal with the

applicant company's recourse, which was not an action for annulment.

He proposed that the case be referred to the First Instance

Administrative Court of Athens.

B. Relevant domestic law

27. Article 8 of Law 936/1979 provides as follows:

"1. Persons who contravene the rules concerning export and

import trade are punishable with imprisonment of a maximum

duration of two years or with a fine which cannot exceed the

total value of the goods concerned or with a combination of the

two penalties ... The criminal proceedings are instituted by the

public prosecutor proprio motu ...

2. The Minister of Commerce ... may impose a fine on the

persons who have contravened one of the rules mentioned in the

previous paragraph, which shall not exceed the total value of the

goods concerned. The fine is imposed independently of the

criminal prosecution of the offender or his eventual acquittal

..."

28. In accordance with the case-law of the courts, the fine provided

for under Article 8 para. 2 of Law 936/1979 is imposed to enforce rules

which aim at "the control of the balance of trade and payments and (at)

the protection of monetary stability and of the foreign currency

reserves of the country" (decision No. 1241/1988 of the Administrative

Court of Appeal of Athens, Diikitiki Diki vol. 1989 p. 318). The

imposition of such a fine involves the disapproval of the offender

(decision No. 2912/1986 of the Council of State, To Sindagma vol. 13

p. 366; decision No. 1241/1988 of the Administrative Court of Appeal

of Athens).

29. The fines imposed by the Minister of Commerce on persons who

contravene the rules concerning import and export trade are collected

in accordance with the Code for the Collection of Public Revenues

(decision No. 2912/1986 of the Council of State; decision No. 1241/1988

of the Administrative Court of Appeal of Athens).

30. According to Articles 7 and 9 of the Code for the Collection of

Public Revenues, a person who fails to pay a debt to the State, the

existence of which has been certified by a competent administrative

authority, may be subjected to seizure of his goods and deprivation of

his liberty. The above-mentioned measures of coercion are ordered by

the competent administrative authority. When the debtor is a legal

person, Article 69 provides for the detention of its directors.

31. Article 40 para. 2 of Law 1968/1991, published on

11 October 1991, allowed for the re-introduction within four months

from the publication of that law of remedies or recourses which had not

been examined by the Council of State or an administrative court for

lack of competence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The Commission has declared admissible the applicant company's

complaint relating to the length of the proceedings.

B. Point at issue

33. 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

34. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"In the determination of ... any criminal charge against him,

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

1. The applicability of Article 6 para. 1 (Art. 6-1) of the

Convention

35. The applicant company submits that Article 6 para. 1 (Art. 6-1)

of the Convention applies in the proceedings at issue because they

involve a determination of "a criminal charge" against it, as this

notion is autonomously understood under the Convention. The applicant

company makes reference to the case-law of the Convention organs and,

in particular, to the opinion of the Commission in the case of Société

Stenuit v. France. It stresses, in this connection, that the fine

imposed under Article 8 para. 2 of Law 936/1979 is not a mere

administrative penalty; in accordance with the case-law of the domestic

courts, the imposition of such a fine "involves the disapproval of the

person concerned".

36. The Government argue that Article 6 para. 1 (Art. 6-1) does not

apply in the proceedings at issue. They submit that the fine imposed

on the applicant company was an administrative penalty to be

distinguished from criminal penalties. The aim of administrative

penalties is to compel compliance with certain norms and, as opposed

to criminal penalties, they do not involve any particular disapproval

nor are they imposed by organs which deliver justice. Law 936/1979

makes a clear distinction between the criminal prosecution under

Article 8 para. 1 of those who contravene the rules concerning import

and export trade and the imposition of an administrative fine under

Article 8 para. 2. An administrative fine is imposed even in cases were

the "offender" is not prosecuted before the criminal courts, or even

if he is acquitted.

37. The Commission recalls that, in accordance with the case-law of

the European Court of Human Rights, in order to determine whether an

offence qualifies as "criminal" for the purposes of the Convention, it

is first necessary to ascertain whether or not the provision defining

the offence belongs in the legal system of the respondent State, to

criminal law; next the very nature of the offence and the degree of the

severity of the penalty risked must be considered (see, as the most

recent authority, Eur. Court H.R., Pramstaller judgment of

23 October 1995, to be published in Series A no. 329, para. 32).

38. As regards the qualification of the offence under national law,

the Commission notes that Article 8 para. 1 of Law 936/1979 provides,

on the one hand, for the criminal prosecution of those who "contravene"

the rules concerning import and export trade. On the other hand, the

second paragraph of the same Article provides for the imposition of a

fine by an administrative authority on those who "contravene" the same

rules. According to the case-law of the courts, the imposition of such

a fine involves "the disapproval of the offender". It follows that

Article 8 para. 2 of Law 936/1979 creates a series of offences, which

are not considered to be criminal under domestic law.

39. Turning to the nature of the offence, the Commission observes

that the aim of the rules allegedly breached by the applicant company

was the control of the balance of trade and payments as well as the

protection of monetary stability and of the foreign currency reserves

of the country. In short, they aimed at the protection of the general

interest of society, which is also protected by criminal law.

40. As regards, finally, the severity of the penalty, the Commission

recalls that the penalty actually imposed by the Minister on the

applicant company was a fine of 500,000 drachmas, a sum which is not

negligible. What is more important, however, is that the applicant

company risked a maximum fine equal to value of the imported goods,

which amounted to 15,050 DM. Moreover, in the event of non-payment,

national law provided for the seizure of the applicant company's assets

and for the detention of its directors.

41. The Commission considers that, on the basis of all the above, the

Minister's decision to impose a fine on the applicant company

constituted, for the purposes of the Convention, determination of a

criminal charge (cf., mutatis mutandis, Société Stenuit v. France,

Comm. Report 30.5.91, paras. 54-67, Eur. Court H.R., Series A no. 232,

pp. 11-15). It follows that Article 6 was applicable in the case.

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

42. The applicant company submits that the "criminal charge" against

it has not been heard within a reasonable time. It stresses in this

connection that, although the penalty was imposed on 24 March 1986, the

proceeding are still pending.

43. The Government submit that the Commission is competent to examine

only the length of the proceedings which the applicant company

instituted on 10 February 1992. The earlier proceedings were concluded

on 16 April 1991 and the complaint concerning length was not raised by

the applicant company before 16 January 1995. They further submit that

the applicant company is responsible for the delays because of its

original failure to lodge the action before the competent court.

44. The Commission must first determine the period to be considered.

More in particular, it must decide whether it should consider as

starting point of the relevant period the imposition of the fine on

24 March 1986 or the re-introduction of the applicant company's action

before the Council of State on 10 February 1992.

45. The Commission recalls, in this connection, that in accordance

with the case-law of the Court, in a democratic society within the

meaning of the Convention the right to a fair administration of justice

holds such a prominent place that a restrictive interpretation of

Article 6 para. 1 (Art. 6-1) would not correspond with the aim and the

purpose of that provision (Eur. Court H.R., Delcourt judgment of

17 January 1970, Series A no. 11, p. 15, para. 25).

46. The Commission notes that the action of the applicant company

which is currently pending before the Council of State is in every

respect identical to the action originally lodged by the applicant

company before the First Instance Administrative Court of Athens to

challenge the decision of the Minister of Commerce of 24 March 1986.

The fact that the action had to be formally re-introduced on

10 February 1992 was the result of a legislative effort to correct, in

the interests of a fair administration of justice, the position taken

by the Council of State in the applicant company's and other cases

concerning the possibility of hearing actions for annulment which had

been referred to it by the lower administrative courts.

47. The Commission further notes that the law which allowed for the

re-introduction of the applicant company's action was promulgated

shortly after its dismissal by the Council of State and that the action

was re-introduced within the four-months time-limit provided for by

that law.

48. The Commission also considers that, contrary to what the

respondent Government argue, the applicant company cannot be blamed

for having originally introduced its action before an administrative

court of first instance. It notes in this connection the uncertainty

which exists under Greek law as to the criteria on the basis of which

it is decided whether an action by which no damages are claimed gives

rise to an administrative dispute to be heard by a lower administrative

court or to an action for annulment to be heard by the Council of

State. This uncertainty is aptly illustrated by the very history of the

applicant company's action. Although the first instance administrative

court and the Council of State originally considered that this was a

recourse for annulment which could not be examined by the lower

administrative courts, at the hearing of 28 November 1995 the judge

rapporteur considered that the Council of State could not examine it

because it was not an action for annulment.

49. In the light of all the above, the Commission considers that it

should examine the totality of the proceedings, taking as starting

point the date of the imposition of the fine. It follows that, on the

date of the adoption of this report, the proceedings, which started on

24 March 1986 and are still pending, have already lasted ten years and

18 days.

50. 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 applicant and that of the competent

authorities (see Eur. Court H.R., Kemmache judgment of

27 November 1991, Series A no. 218, p. 27, para. 60).

51. The Commission considers that the case is of a certain

complexity, having so far involved a hearing before a lower

administrative court, a referral to the Council of State, an initial

rejection and a formal re-introduction following a legislative

intervention. However, the complexity of the case cannot explain in

itself the length of the proceedings.

52. The Commission notes in this connection that, although the

applicant company's action was first referred to the Council of State

on 8 April 1987, it was not heard before 8 January 1991, i.e. three

years and nine months later, the Council of State having adjourned its

examination six times. Similar delays occurred when the action was re-

introduced before the Council of State on 10 February 1992. It was

first heard on 28 November 1995, i.e. three years, nine months and

eighteen days later, the Council of State having adjourned its

examination twice. The Commission notes that the respondent Government

has not advanced any explanations for these adjournments.

53. In the absence of any such explanations and of any indication

that the applicant company otherwise contributed to the length

proceedings, the Commission considers that it is the State authorities

which should be held responsible for all the delays which are not to

be attributed to the complexity of the case. In accordance with the

Court's case-law, 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 in the determination of a criminal

charge against him within a reasonable time (cf. Eur. Court H.R.,

Baggetta judgment of 25 June 1987, Series A no. 119, p. 32, para. 23).

54. As a result, 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

55. 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 Acting President

to the First Chamber of the First Chamber

(M.F. BUQUICCHIO) (J. LIDDY)

(Or. French)

SEPARATE CONCURRING OPINION OF MR. B. CONFORTI

Avec le Gouvernement, je crois que la Commission n'aurait pas dû

prendre en considération la première procédure, qui s'est terminée le

16 avril 1991, et dont le requérant aurait dû se plaindre devant la

Commission dans les six mois à partir de cette date. En effet, cette

procédure était close avec la décision d'incompétence du Conseil d'Etat

et le requérant, qui était forclos pour attaquer la décision du

Ministre du commerce, n'avait pu entamer une nouvelle action que grâce

à l'entrée en vigueur de la loi du 11 octobre 1991 (n° 1968/1991).

En tout état de cause, je crois qu'il y avait une violation du

principe du "délai raisonnable", en raison de la durée de la seconde

procédure, qui, après quatre ans, deux mois et 1 jour, n'est pas encore

terminée. A mon avis, dans l'évaluation de cette seconde procédure, on

aurait même pu tenir compte du laps de temps écoulé pendant la première

procédure, mais cela exclusivement afin de déterminer l'état où

l'affaire se trouvait à l'époque. En d'autres termes, on aurait pu

accorder à la première procédure, par voie d'analogie, la même

considération (limitée) que l'on donne à une procédure qui s'est

déroulée en partie avant l'entrée en vigueur de la Convention pour (ou

avant la déclaration selon l'art. 25 de la part de) l'Etat défendeur

(voir Cour eur. D.H., arrêt Foti et autres du 10 décembre 1982, série

n° 56, p. 18, par. 53).

Menu

GARYFALLOU v. GREECE

GARYFALLOU v. GREECE

LEXI