PHILIS v. GREECE
Doc ref: 12750/87;13780/88;14003/88 • ECHR ID: 001-45443
Document date: March 8, 1990
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Applications Nos. 12750/87
13780/88 and 14003/88
Nicholas PHILIS
against
Greece
REPORT OF THE COMMISSION
adopted on 8 March 1990
TABLE OF CONTENTS
pages
I. INTRODUCTION
(paras. 1 - 28) ...................................... 1
A. The applications
(paras. 2 - 4) ............................... 1
B. The proceedings
(paras. 5 - 23) .............................. 1
C. The present Report
(paras. 24 - 28) ............................. 3
II. ESTABLISHMENT OF THE FACTS
(paras. 29 - 92) ..................................... 5
A. The particular circumstances of the case
(paras. 29 - 85) ............................. 5
B. Relevant domestic law
(paras. 86 - 92) ............................. 12
IV. OPINION OF THE COMMISSION
(paras. 93 - 147) .................................... 17
A. Points at issue
(para. 93) ................................... 17
B. Access to court
(paras. 94 - 122) ............................ 17
C. Article 13 of the Convention
(paras. 123 - 126) ........................... 22
D. Length of the proceedings
(paras. 127 - 146) ........................... 22
E. Recapitulation
(para. 147) .................................. 25
Partly dissenting opinion of Mr. Trechsel and
Mrs. Liddy ...... 26
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 27
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 30
(Application No. 12750/87)
APPENDIX III : DECISION ON THE ADMISSIBILITY ............. 47
(Application No. 13780/88)
APPENDIX IV : DECISION ON THE ADMISSIBILITY ............. 53
(Application No. 14003/88: Partial)
APPENDIX V : DECISION ON THE ADMISSIBILITY ............. 59
(Application No. 14003/88: Final)
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 applications
2. The applicant is a Greek citizen, born in 1937, and a private
consultant engineer having a professional office in Athens since 1970.
In the proceedings before the Commission he has represented himself.
3. The applications are directed against Greece. The Government
were represented by their Agent, Mr. Constantinos Economides, Head of
the Legal Department of the Ministry of Foreign Affairs.
4. The applications, as far as declared admissible, relate to
several civil proceedings for the recovery of fees to be paid to the
applicant for work he had carried out. The applicant complains in
particular that he was deprived of effective access to court with
regard to his civil claims as a result of legislation providing that
actions for recovery of engineers' fees can only be introduced by the
Technical Chamber of Greece (Techniko Epimelitirio Ellados - TEE). He
invokes Article 6 para. 1 of the Convention.
A further complaint under the same provision of the Convention
relates to the length of proceedings instituted by him on 10 August
1984 which ended on 16 November 1987 by a decision rejecting his
action for lack of locus standi.
The applicant also invokes his right to an effective domestic
remedy under Article 13 of the Convention.
B. The proceedings
Application No. 12750/87
5. The application No. 12750/87 was introduced on 5 January 1987
and registered on 24 February 1987.
6. On 12 December 1987 the Commission decided, in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure, to bring this
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
7. The Government submitted their observations on 31 May 1988.
The applicant submitted additional observations and observations in
reply on 4 April, 13 July and 4 August 1988.
8. On 11 October 1988 the Commission decided, in accordance with
Rule 42 para. 3 (b) of its Rules of Procedure, to invite the parties
to appear before it at a hearing on the admissibility and merits of
the application.
9. The hearing was held on 7 December 1988. At the hearing the
Government were represented by their Agent, Mr. Constantinos Economides,
Mr. Vassilios Theofilou, lawyer, and Mrs. Maria Vondikaki-Telalian,
Secretary to the Legal Department of the Ministry of Foreign Affairs,
advisers. The applicant appeared in person.
10. Following the hearing the Commission declared the application
partly admissible. The admissible part of the application concerns
the applicant's complaint regarding his access to court. The
Commission declared the remainder of the application inadmissible.
The text of this decision was approved on 19 January 1989 and
communicated to the parties on 15 February 1989. The parties were
invited to submit additional observations on the merits before
31 March 1989.
11. The applicant submitted observations on 17 February and
14 March 1989. The Government submitted observations on the merits
of the case on 28 March 1989.
The applicant, on his own initiative, submitted further
evidence on 14 November 1989.
Application No. 13780/88
12. This application was introduced on 6 April 1988 and was
registered on 20 April 1988.
13. On 14 March 1989 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application.
14. The Government submitted their observations on 18 May 1989.
The applicant presented observations in reply on 26 June 1989.
15. On 11 October 1989 the Commission declared the application
partly admissible. The admissible part of the application concerns
the applicant's complaint that he did not have access to a court and a
complaint concerning the length of the proceedings referred to in this
application. The Commission's decision was communicated to the
parties on 27 October 1989. They were invited to submit additional
observations on the merits of the complaint concerning the length of
the proceedings.
16. The applicant submitted further observations on 13 and
29 November 1989. The Government submitted their own observations on
the merits on 12 December 1989.
Application No. 14003/88
17. This application was introduced on 24 June and registered on
5 July 1988.
18. The Commission examined the question of the admissibility of
the application on 5 and 9 May 1989. It decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the applicant's complaints concerning the civil proceedings referred
to in this application. By a partial decision of 9 May 1989 it
declared inadmissible certain complaints by the applicant relating to
criminal proceedings against him.
19. The Government submitted their observations on 25 July 1989.
By letter of 8 August 1989 the applicant referred in reply to his
previous submissions and arguments.
20. On 11 October 1989 the Commission declared the application
partly admissible. The admissible part of the application concerns
the applicant's complaint regarding his access to court. The
Commission declared the remainder of the application inadmissible.
21. The Commission's decision was communicated to the parties on
17 October 1989. They were informed that it was open to either party
to submit before 30 November 1989 any further evidence or additional
observations they wished to put before the Commission.
The applicant submitted additional observations on 1 November 1989.
22. On 8 March 1990 the Commission decided to join the
applications, in accordance with Rule 29 of its Rules of Procedure,
for the purpose of their examination on the merits.
23. After declaring the applications admissible, the Commission,
acting in accordance with Article 28 (b) of the Convention, also
placed itself at the disposal of the parties with a view to securing a
friendly settlement of the case. 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
24. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
25. The text of this Report was adopted on 8 March 1990 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
26. 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.
27. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decisions on the admissibility of the applications are also attached
as Appendices II - V.
28. 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
1. The litigation concerning the applicant's claims
against the Organisation for Labourers' Housing
(Organismos Ergatikis Katoikias - OEK)
29. In 1971 the OEK (Organismos Ergatikis Katoikias), a State
institution responsible to the Greek Ministry of Labour, entrusted
with housing labourers' families, entered into agreements with the
applicant for him to carry out design projects for and to supervise
work on its installations for the period 1971-1975 and subsequently
entered into further similar agreements for the period 1976 - 1978.
However, in 1977 the OEK terminated its agreements with the applicant
and refused to pay him the remuneration provided for by law.
(i) The first cycle of TEE-OEK proceedings
30. The applicant requested the Technical Chamber of Greece (TEE),
which is exclusively authorised to claim and receive payment of
engineers' remunerations for design projects on behalf of engineers,
to institute proceedings against the OEK. On 23 December 1977, 16
December 1978 and 12 January 1980 the TEE lodged three actions against
the OEK, claiming the applicant's remuneration.
31. On 25 September 1979 the applicant also requested the TEE to
introduce four further actions against the OEK. He repeated his
request on 11 October and 19 November 1982.
32. On 8 December 1982 the TEE informed the applicant that it
would institute the proceedings only after the applicant had prepaid
the court fees and submitted a bank guarantee that he would pay the
defendant's expenses in the event of losing the case. The TEE
later specified that the proceedings had little or no prospects of
success. The applicant contended that such conditions for the
introduction by the TEE of his claims against the OEK were unlawful.
He also urged the TEE to proceed as he requested since there was a
risk that his claims would be prescribed. On 20 December 1982 the
applicant, maintaining his protest, agreed to submit a bank guarantee.
On 4 January 1983 the TEE informed the applicant that it had
introduced on 24 December 1982 four further actions as requested. It
indicated nevertheless that these actions would be converted to
actions for declaratory judgments (anagnoristikes agoges), for which
prepayment of fees was not required, if the court fees were not paid
before the first court hearing.
33. In the meantime two of the initial TEE actions were brought
before the Court of Cassation (Areios Pagos) after the Athens First
Instance Court (Monomeles Protodikeio) and the Athens Court of Appeal
(Efeteio) had given decisions either accepting or rejecting the
applicant's claims. At that stage of the proceedings the OEK
requested these cases to be adjourned in view of settlement
negotiations. While such negotiations were pending, a law introduced
by the Minister of Labour was passed by Parliament affecting OEK
agreements with engineers, whose provisions were also to be applied to
cases pending before the courts. According to these provisions
(Article 29 para. 5 of the law (Nomos) 1346/83) the remuneration due
to engineers was not the remuneration expressly provided in the
previous law but the contractual one. After the new law came into
force, on 13 April 1983, the OEK refused to settle the cases.
34. The applicant considered the passing of the law to be an
interference with his cases pending before the courts and requested
the Court of Cassation not to apply the new law.
35. In its decisions No. 919 of 25 May 1984 and No. 1597 of
19 September 1984, the Court of Cassation considered that the new law
applied to all engineers and did not therefore violate the principle
of equality. It also stated that the legislative authorities are not
prevented from redetermining civil rights by voting new civil laws,
provided the principle of equality is not violated. The Court of
Cassation rejected the applicant's claims as ill-founded, since they
were based on the former legal provisions which were no longer in force.
36. Following the above decisions the applicant requested the TEE
to discontinue all the original court actions and to re-introduce them
basing the claims on the new law.
(ii) The second cyle of TEE-OEK proceedings
The TEE-OEK proceedings concerning the applicant's
remuneration claims for central heating installation
projects in OEK buildings
37. On 27 March 1984 the TEE discontinued two of the actions
originally introduced on 24 December 1982 and re-introduced them
before the Athens First Instance Court. The TEE claimed the
applicant's remuneration for central heating installation projects in
OEK buildings and based the claims on the provisions of the law
1346/83. The applicant joined as a third party in the proceedings.
38. On 23 April 1985 the Athens First Instance Court held a
hearing on the cases. At the hearing the TEE converted the actions
for performance (katapsifistikes agoges) into actions for declaratory
judgments (anagnoristikes agoges).
39. On 15 November 1985 the Athens First Instance Court gave its
decisions (Nos. 384/85 and 385/85) accepting that the applicant's
claims were well-founded.
40. On 5 February 1986 the OEK appealed against the above
decisions.
41. In its judgments No. 9908/86 of 19 November 1986 and No.
10040/86 of 24 November 1986 the Athens Court of Appeal accepted the
OEK's appeals and rejected the applicant's claims. In particular the
Court of Appeal found that the applicant's claims were prescribed
under Greek law "since the period between the end of the financial
year in which the claim was created and a respective action could be
brought before courts and the date of the introduction of the action
exceeded five years". The TEE had submitted that the claims were
not prescribed, since it had lodged its original actions with the
competent court within the five year time limit. However the Court
found that these original actions should not be taken into
consideration since, having a different legal basis, they were not
identical with the actions before it and did not therefore interrupt
the course of the period of limitation.
42. On 6 April 1987 the applicant complained to the TEE that it
failed to represent his interests properly. Moreover, he argued that
a number of subsidiary actions had not been lodged with the courts. He
submitted in particular that the TEE had failed to claim the
capitalisation of the interest due on his claims pursuant to Article
296 of the Civil Code (Astikos Kodix) and the readjustment of the
amounts claimed in relation to inflation rates pursuant to Article 12
para. 10 of Royal Decree 13/1938 and Article 105 para. 4 of
Presidential Decree 696/1974. Finally, he complained that his claims
had been introduced in the context of actions for declaratory
judgments.
43. On 17 June 1987 the TEE appealed (anairesi) to the Court of
Cassation. In a memorandum submitted by the applicant, the latter
noted that the remedy pursued was directed against both the OEK and
the TEE which were the main parties in the proceedings.
44. On 7 March 1989 the Court of Cassation gave its judgment
No. 213/1989 on the appeal by the TEE against the Athens Court of
Appeal decision No. 10040/1986. It declared inadmissible the appeal
grounds directed against the TEE in the applicant's memorandum and
rejected the remainder as ill-founded. The Court of Cassation
confirmed the judgment of the Athens Court of Appeal.
45. On 1 May 1989 the Court of Cassation gave a similar judgment
(No. 450/89) rejecting the TEE's appeal against the judgment No.
9908/1986 of the Athens Court of Appeal.
The TEE-OEK proceedings concerning the applicant's
claims for electro-mechanical installation projects
in OEK buildings
46. On 2 April 1984 the TEE discontinued an action originally
introduced on 24 December 1982 and re-introduced it before the Athens
First Instance Court. It claimed the applicant's remuneration for
electro-mechanical installation projects in OEK buildings. The
applicant joined as a third party in the proceedings.
47. On 16 September 1985 the First Instance Court rejected the
action on the ground that the claims were prescribed under Greek law
(decision No. 326/1985). The applicant and the TEE appealed against
the above decision.
48. On 19 November 1986 the Athens Court of Appeal confirmed the
challenged decision (judgment No. 8671/1986).
49. Following a request by the applicant, the TEE appealed to the
Court of Cassation against the above judgment. The TEE's appeal was
drawn up by the applicant's lawyer and included a number of complaints
concerning the manner in which the TEE had pursued the applicant's
case.
50. In its judgment No. 214/1989 of 7 March 1989 the Court of
Cassation confirmed the judgment of the Court of Appeal. It declared
inadmissible the appeal as far as it was directed against the TEE and
rejected the remainder as ill-founded.
The TEE-OEK proceedings concerning the applicant's
claims for remuneration for other design projects
he had carried out for the OEK since 1971
51. In November 1984 the applicant requested the TEE to
re-introduce his claims for remuneration against the OEK for the work
he had carried out for it since 1971. These claims had already been
introduced before the courts in the first cycle of TEE-OEK litigation.
52. In his report of 18 November 1984 to the head of the legal
department of the TEE, the competent lawyer of the TEE expressed the
view that an action for recovery of the applicant's fees based on the
new legal provisions had sufficient chances of success. In particular
the view was expressed in the report that no question of res judicata
arose from the fact that the Court of Cassation had previously given
its judgments Nos. 919/1984 and 1597/1984 concerning the same claims.
53. On 20 February 1986 the applicant repeated his requests and
observed that further delays in the introduction of his claims could
lead to their prescription.
54. On 26 February 1986 the TEE introduced an action for a
declaratory judgment against the OEK with respect to the claims
concerned. The applicant joined as a third party in the proceedings.
55. On 27 May 1986 the Athens First Instance Court rejected the
action (Decision No. 274/1986). It found that the claims were
prescribed under Greek law since the period between the end of the
financial year in which they were created and the date of the
introduction of the action exceeded five years.
56. The applicant appealed to the Athens Court of Appeal on
7 October 1986. These proceedings are pending.
(iii) The TEE-OEK proceedings concerning the applicant's
claims based on the provisions of the law 716/1977
57. On 13 April 1981 the TEE, on behalf of the applicant,
introduced an action against the OEK before the Court of Athens
requesting remuneration for design projects he had executed for the
OEK after 1977 as an independent engineer.
58. On 30 November 1981 the Athens First Instance Court gave
judgment (No. 479/81) in favour of the TEE and ordered the OEK to pay
898.697 drachmas in respect of the money claimed. Following a request
by the applicant the TEE requested the First Instance Court to proceed
to corrections - merely textual - of the above judgment. This was
done by decision No. 358 of 20 July 1982.
59. In the meantime the OEK had challenged the First Instance
Court judgment and the case was referred to the Athens Court of
Appeal. On 26 February 1987 the applicant joined the appeal
proceedings.
60. In a letter to the TEE dated 6 April 1987 the applicant
requested the TEE to introduce additional actions for the
capitalisation of the interest due since 1981 (compound interest)
and for the adjustment of the remuneration claimed.
61. On 7 April 1987 the Athens Court of Appeal held a hearing on
the case. It gave judgment (No. 6324/87) on 23 May 1987. The Court
of Appeal found that the applicant's relations with the OEK after 1977
were not based on any contract for services or contract of service.
It found that the applicant had executed design projects for the OEK
after such projects had been assigned to him as an independent
engineer, within the meaning of the law 716/1977. Therefore the claims
were founded on that law and the provisions of the new law 1346/83 did
not apply.
62. On 2 July 1987 the applicant repeated his request to the TEE
for the introduction of additional actions.
63. On 7 July 1987 the OEK appealed to the Court of Cassation
against the judgment of the Court of Appeal.
64. On 24 July 1987 the applicant asked the TEE to request the OEK
to proceed with the payment of the remuneration awarded in the judgment
of the Court of Appeal. He submitted that the OEK's appeal to the
Court of Cassation did not prevent the enforcement of the challenged
judgment. He also complained that his previous letters had remained
unanswered.
65. On 8 September 1987 the applicant addressed himself again to
the TEE. He complained that as a result of its inactivity his case
had been pending before the Court of Appeal for more than five years
and that its attitude before that court had given the OEK the
opportunity to appeal to the Court of Cassation.
66. On 24 September 1987 the TEE gave the following reply to the
applicant's requests:
"a. (...) The TEE has never lodged a claim for the
capitalisation of interest (compound interest) particularly
against the State or a public law corporation;
b. The Presidential Decree 696/1987 does not provide for
the adjustment of remuneration. Admittedly, the above
judgment of the Court of Appeal (the only one in our favour)
recognises that the design projects for which remuneration
was awarded were assigned in accordance with Law 716/1977,
which provides for the possibility of adjustment, but in our
view this judgment is entirely inconsistent with article 29,
paragraph 5 of Law 1346/1983. The above provision suggests
that the judgment of the Court of Appeal will probably be
set aside;
c. More than 20 actions brought by us and by Mr. Philis
have been dismissed by final judgments of the Court of
Appeal and the Court of Cassation;
d. The TEE has already spent a great deal on these cases
and has on many occasions been ordered to pay the OEK's costs;
e. The outcome of the case before the Court of
Cassation is uncertain. We shall probably lose the case.
For the above reasons we consider it unwise for the TEE
to incur criticism and run financial risks by bringing an
action for the capitalisation of interest and attempting to
secure the adjustment of the above-mentioned fee under Act
716/1977 before the Court of Cassation gives its judgment."
The TEE expressed the opinion that enforcement proceedings
before the final decision by the Court of Cassation would be
futile.
67. The applicant repeated his requests on 10 December 1987 and
15 January 1988.
68. On 17 January 1989 the Court of Cassation gave its decision
No. 24/89 rejecting the OEK's appeal. It confirmed the Court of
Appeal's decision by which the applicant's claims had been found well-
founded.
69. On 8 February 1989 the applicant requested the TEE to pay him
the amount of 897.797 drachmas and the interest due on it. He also
asked the TEE to pay him approximately 13 million drachmas
corresponding to compound interest and readjustment of the
remuneration awarded according to inflation rates.
70. On 18 April 1989 the TEE informed the applicant that any
enforcement proceedings against the OEK would be impossible; that a
claim for readjustment according to inflation rates of the awarded
amount would be ill-founded and that a claim for compound interest,
whether it was lawful or not, "appeared as lacking any moral support".
The TEE informed the applicant that it was seriously prevented from
introducing the additional actions while the main action was pending
and that it was open to him to institute proceedings in respect of his
additional claims introducing a subrogation action in accordance with
Article 72 of the Code of Civil Procedure (Kodix Politikis Dikonomias).
2. The litigation concerning the applicant's
claims against the Children's Hospital in Penteli
(Paidiko Nosokomeio Pentelis - PNP)
71. On 30 October 1984 a State Institution PIKPA (Patriotiko
Idryma Koinonikis Pronoias kai Antilipseos), supervised by the Ministry
of Health and Social Welfare, assigned to the applicant a design
project, concerning building installations of a hospital. A similar
project was assigned to the applicant on 23 February 1983 by the
hospital itself, which in the meantime had become a public law
institution PNP (Paidiko Nosokomeio Pentelis). The projects have been
submitted to and subsequently accepted by the PNP.
72. On 27 July 1983 the PNP informed the applicant of the fee to
be paid for the work he had carried out. The applicant considered
that the amount of his remuneration had been arbitrarily reduced and
on 14 October 1983 requested the PNP to modify the decision
determining the fee. Following disagreement, the applicant applied on
29 February 1984 to the competent department of the Ministry of Health
and Social Welfare.
73. As the request remained unanswered, the applicant introduced
on 1 August 1984 an action against both the PNP and the PIKPA before
the Athens Court of Appeal.
74. On 26 February 1985 the Court of Appeal invited the applicant
to submit evidence that he is inscribed as a consultant engineer in
the registry of public expenditure, i.e. the list from which
appointments are made for public works. The evidence requested was
submitted on 13 January 1986.
75. After a hearing held on 3 June 1986, the Court gave, on
15 July 1986, a partial decision rejecting the applicant's action as
far as the PIKPA was concerned since all rights and obligations of
this body had been transferred to the PNP. The Court requested the
parties to submit expert evidence concerning the work carried out by
the applicant.
76. On 18 February 1987 the parties requested the Court to hold
another hearing in the case. This was held on 22 September 1987 and
the court gave its final decision on 16 November 1987. It declared
the applicant's action inadmissible, since according to the provisions
of the Royal Decree 30/1956 an action for recovering design projects'
fees can only be introduced by the TEE, which is exclusively
authorised to bring such an action in substitution for the engineer.
The Court decided that the court costs be paid by both parties since
it found the applicant could reasonably doubt as to whether he was
entitled to institute the proceedings.
3. The litigation concerning the applicant's claims
against Mr. A.S.
77. In November 1980 A.S. assigned to the applicant a design
project concerning electromechanical installations in the town of
Amfilohia.
78. Following disagreement on the fee to be paid, the applicant
asked the TEE on 30 June 1981 to sue A.S. for the purpose of
recovering the fee for the work he had carried out. In September 1981
the TEE informed the applicant that settlement negotiations were
taking place between itself and A.S. By letters of 20 January 1982,
30 March 1983 the applicant repeated his request.
79. On 23 January 1984 the applicant urged the TEE to introduce an
action against A.S. He also noted that the calculation of his fees by
the TEE was erroneous and submitted a revised table of the fees.
Moreover, he drew the TEE's attention to the fact that it was not for
the TEE but for the courts to decide what the amount of his
remuneration would be.
80. On 16 December 1985 the TEE lodged an action against A.S. with
the Athens First Instance Court. The applicant did not join as
co-plaintiff.
81. On 24 April 1986 the Court of Athens gave its decision accepting
a part of the TEE's claims.
82. The TEE and A.S. appealed against this decision. On 11 June
1987 the Athens Court of Appeal found in favour of the TEE and ordered
A.S. to pay 139.336 drachmas, plus the interest due on that amount.
However, a TEE claim concerning readjustment of the applicant's
remuneration in relation to inflation rates was rejected because no
specific amount was claimed in the action. This decision became final
on 1 September 1987.
83. By letter of 10 July 1987 the applicant complained to the TEE
that his case had not been properly presented to the competent courts.
He also requested the TEE to take action to enforce the decision.
84. On 9 May 1988 the applicant complained again to the TEE.
Referring to his previous correspondence he claimed that the TEE
delayed the introduction of the action, that the calculation of the
fee claimed was erroneous, that the TEE failed to claim the specific
remuneration for the preparation of tenders and adjustment of
the amount of the fee in relation to inflation rates and that it
unreasonably delayed the enforcement procedure. He also requested
redress of the damage caused by the TEE's negligence.
85. On 6 July 1988 the TEE replied that in the applicant's case
no negligence could be imputed to the TEE and that in any event the
applicant had not shown that he had suffered any damage. In
particular, as regards the enforcement of the judgment of the Court of
Appeal, the TEE informed the applicant that A.S. had paid the interest
on the accepted claim and the costs of the proceedings and that he had
asked to pay the remuneration awarded periodically within a period of
ten months. Moreover, the TEE noted that it was for the applicant to
indicate any property of A.S. which could be liable to distraint.
B. Relevant domestic law and practice
86. Royal Decree No. 30 of 31 June 1956 as amended by Royal
Decree 188/1966 regulating the mode of payment of the remuneration
of engineers in general
Article 1
1. Engineeers holding degrees from the National Polytechnic or
from equivalent schools abroad who are members of the Technical
Chamber of Greece (TEE), and those practising these professions on a
full-time or part-time basis in accordance with Act 4663/1930 on the
professions of civil engineering, architecture and topography and Act
6422/1934 on the professions of mechanical-electrical engineering and
naval architecture, shall, when commissioned to design a project of
any kind, submit within eight days to the Technical Chamber or the
person authorised by the Governing Body of the Chamber a declaration
concerning the assignment by the person commissioning the project and
a separate declaration to the effect that the assignment has been
accepted, and, if the project is commissioned by the State or by a
public law corporation, a copy of the document authorising the
assignment. Persons announcing architects' competitions shall notify
the TEE or the person authorised by the TEE of the fact within eight
days of the announcement.
Article 2
1. Persons who assign projects to a person practising one of the
professions referred to in paragraph 1 of the preceding article (...)
shall deposit with the TEE or the person authorised by the TEE, in
accordance with the requirements laid down hereafter, the full amount
of the project fee owed by them to the person concerned, the fee being
determined as indicated above by the competent government department
or by the TEE. They shall on no account pay the fee directly to the
person undertaking the assignment. (...)
4. In the cases where the debtor refuses, delays or otherwise
hinders payment of the instalments or of the fee owed, the Technical
Chamber of Greece is entitled to seek recovery of the amount through
the courts in accordance with the procedure provided for by the Act of
15/17 October 1927 ratifying the Legislative Decree of 30 April 1926
on procedure in disputes between civil engineers, architects, etc and
their clients concerning the remuneration of work done by the
aforementioned engineers, architects, etc; the TEE shall be subrogated
ex officio to the rights of the payee.
5. In this case the Technical Chamber of Greece shall notify
the payee of the proceedings, after which it shall bear absolutely no
responsibility on any account whatsoever towards the person to whose
rights it is subrogated, particularly in respect of compensation. The
payee or the TEE is always entitled to intervene in the proceedings.
Article 3
1. Fees paid to the TEE shall be deposited in a special bank
account and 10% of the total amount of the fee shall be credited to
the TEE's account with the Bank of Greece. (...)
2. The remainder of the fee, after deduction of the percentages
withheld and of the amount payable for the corresponding professional
licence, shall be paid to the payee without interest by the TEE or the
person authorised by the TEE.
87. Case-law concerning the implementation of the provisions
of Royal Decree 30/1956
In its decision No. 309/1973 the Court of Cassation held the
following:
"It is clear from the provision (of paragraph 4 of the single
article of Legislative Decree 2726/1953) which refers to the
remuneration of engineers for engineering projects in general,
that the person owing the project fee is required to pay the
latter to the TEE. Accordingly, the Royal Decree No. 30 of
31 May 1956 regulating the mode of payment of the remuneration
of engineers in general, issued for the purpose of implementing
the above provision, and providing in Article 2 paragraphs 4
and 5 that in cases where the debtor refuses or otherwise
hinders payment of the instalments or of the fee owed, the
TEE is entitled to seek recovery of the amount through the
courts, being subrogated ex officio to the rights of the
engineer, after which the TEE bears absolutely no
responsibility on any account whatsoever towards the person
to whose rights it is subrogated, is consistent with the
aforementioned provision of Legislative Decree 2726/1953 and
lays down in detail the conditions governing the exercise of
the power directly conferred on the TEE, in accordance with
the aforementioned decree, of collecting the project fee due
to the engineer."
In its decision No. 2827/1986 of 17 April 1986 the Athens
Court of Appeal held the following:
"It clearly follows [from the provisions of Article 2 paras. 4
and 5 of Royal Decree 30/1986] that the TEE has an obligation
- and not a right - to institute proceedings for the recovery
of the remuneration due to an engineer, the latter having no
right to institute such proceedings. This interpretation is
the logical consequence of the prevailing opinion expressed
in the case-law according to which an engineer has no right
whatsoever to claim his remuneration through the courts.
Moreover, it follows from the above provisions that in the
context of its obligations, the TEE is not the engineer's
representative, but an authority to which an exclusive right
has been conferred by law."
In its decision No. 12564/1987 the same court held the
following:
"It follows from the provisions of Article 2 paras. 1, 2 and 3
of Royal Decree 30/1956 in conjunction with para. 4 of the single
Article of Legislative Decree 2726/1953 that the payment of
fees due to engineers for projects executed by them on behalf
of any natural person or any public or private law corporation
can be claimed before the courts only by the TEE which is
entitled in case the debtor refuses the payment to lodge an
action against him with the courts (cf. C. Cass. 309/1973;
C. Cass. 338/1973). The locus standi of the parties has to
be examined ex officio by the court at any stage of the
proceedings."
Furthermore the Court of Cassation dealt with a compensation
claim by an engineer against the TEE on the ground that the latter had
not instituted proceedings for the recovery of design project fees.
As a result of the TEE's omissions the applicant's claims were
prescribed. In its decision No. 25/1988 the Court of Cassation found
that the TEE's omission to lodge an action with the competent courts
within the period during which the engineer's claim is valid creates
an obligation for compensation. It also held that such obligation is
not created as long as the claim is not prescribed and institution by
the TEE of the proceedings requested is still possible.
88. Civil Code (Astikos Kodix)
Article 730 (Voluntary agency - dioikisi allotrion)
A person who without mandate has assumed the management of
another person's affairs shall be bound to conduct such affairs in the
interest and according to the actual or presumed will of the other
person. A contrary will of the other person as regards the conduct of
the affairs shall not be taken into consideration if such will is
inconsistent with the law or morality.
89. Code of Civil Procedure (Kodix Politikis Dikonomias)
Article 72 (subrogation action - plagiastiki agogi)
A creditor may apply for judicial protection, exercising the
rights of his debtor, in cases where the latter does not exercise
them, unless those rights are exclusively personal.
Article 80 (Third party intervention - prostheti paremvasi)
If, in a case pending before a court, a third party has a
legal interest in one of the parties winning, he is entitled, until
the final judgment is pronounced, to intervene for the purpose of
supporting that party.
Article 82
A person bringing a third party intervention is entitled
to take all the legal steps permitted during the proceedings in the
interests of the party in support of whom the intervention was
brought. He shall accept the steps taken in the case up to the time
when his action was brought. The steps he takes shall be valid
insofar as they are not inconsistent with those taken by the party in
support of whom he brought the action.
Article 83
If the judgment in the main proceedings also affects the legal
relations between the person who intervened and the opposite party,
the provisions of Articles 76-78 shall apply.
90. Articles 76-78 of the Code of Civil Procedure govern common
interest between parties to proceedings (Omodikia). Article 77 reads
as follows:
"Where Article 76 applies, the court shall have discretion to
decide on contradictory arguments or statements made by joint
applicants or joint defendants. The effect of such arguments
or statements may be determined separately in respect of each
joint applicant or joint defendant."
91. Case-law concerning the subrogation action
The subrogation action was originally introduced in Greek
law in 1834. It was considered to be a specific action for provisional
measures or interlocutory relief and appeared in section 5 of the
"Civil Procedure Law" (Politiki Dikonomia) concerning provisional
measures.
The provision providing for the subrogation action (Article
72) is now set out in chapter A of the Code of Civil Procedure
concerning general procedural provisions. It is therefore generally
accepted that this action is a sui generis action which aims at
safeguarding the property of the debtor in the interests of the
plaintiff and that the insolvency of the debtor is not a requirement
for the introduction of the action. Therefore, the only conditions
for the introduction of the subrogation action are the following: the
person bringing the subrogation action must prove that he is a
creditor of the person who could normally bring the action and show
that the latter does not exercise his rights.
The Athens Court Appeal has held that the purpose of a
subrogation action is to ensure that the defendant is ordered to pay
an amount to the debtor of the plaintiff (Athens Court of Appeal dec.
260/1977, NoB Vol. 25 p. 554). In this case the Court of Appeal found
that a person having a civil claim against another as a result of a
road traffic accident could bring a subrogation action against the
driver's insurance company seeking that payment be made to the driver
(cf. also Athens Court of Appeal, dec. 2911/1979, NoB p. 1324).
The same court found that a person who has entered into an
agreement with a company to buy an apartment in a building to be
constructed by the company can bring a subrogation action against the
owner of the land on which the building was to be constructed claiming
that the land be transferred to the company (Athens Court of Appeal,
dec. 217/1981, NoB Vol. 29 p. 1405).
Finally in its decision No. 7892/1988 the Athens Court of
Appeal held the following:
"There is in the relations between the TEE, which is not the
real owner of the fee, and the real owner of the fee, i.e.
the engineer, a 'quasi creditor-debtor aspect' which exists
as long as the TEE has the obligation to request the payment
of the fee and to pay it to the real owner. (...) It
follows from Article 72 of the Code of Civil Procedure that
where the TEE does not institute proceedings for the
recovery of the engineer's fee or proceedings for the
enforcement of a final decision in its favour, the engineer
is entitled to institute such proceedings since being the
real owner of the fee he has a legitimate interest thereto.
The condition for the introduction of an action by the
engineer is that he claims that the fee be paid to the TEE."
It is noted that the above decision was issued in the context
of enforcement proceedings instituted by an engineer against his
debtor after a final decision had been given regarding an action
brought against the debtor by the TEE in substitution for the
engineer.
92. Case-law concerning the third party intervention
The Court of Cassation found that a third party intervention
may be brought by an engineer claiming his remuneration in proceedings
instituted by the TEE against the person who commissioned the project
(Court of Cassation dec. 407/1974 and 1236/1977).
The case-law admits that the third party may not limit or
broaden the subject matter of the proceedings, and in particular he
may not lodge a counterclaim (Court of Rhodes dec. 79/72). He simply
acts in concert with, and supports, the main party in the action
(Athens Court of Appeal dec. 4634/1975).
IV. OPINION OF THE COMMISSION
A. Points at issue
93. The following points are at issue in the present case:
a) whether the applicant was granted access to court in respect
of his civil claims for remuneration as required by Article 6 para. 1
(Art. 6-1) of the Convention;
b) whether the applicant's right under Article 13 (Art. 13) of the
Convention to have an effective remedy before a national authority as
regards his allegation that he was not granted access to court was
respected in the present case;
c) whether the applicant's right to have his civil rights
determined within a reasonable time as required by Article 6 para. 1
(Art. 6-1) of the Convention were respected in the context of the
proceedings concerning the litigation between the applicant and the
PNP;
B. Access to court
94. The first sentence of Article 6 para. 1 (Art. 6-1) of the
Convention reads as follows:
"In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal established by law ..."
95. In the Golder case the European Court of Human Rights held the
following:
"the right of access constitutes an element which is
inherent in the right stated by Article 6 para. 1 (Art. 6-1).
This is not an extensive interpretation forcing new obligations
on the Contracting States; it is based on the very terms of
the first sentence of Article 6 para. 1 (Art. 6-1) read in its
context and having regard to the object and purpose of the
Convention, a lawmaking treaty ... and to general principles
of law. ... Article 6 para. 1 (Art. 6-1) secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way
the Article embodies the 'right to a court', of which the
right of access, that is the right to institute proceedings
before courts in civil matters, constitutes one aspect only.
To this are added the guarantees laid down by Article 6
para. 1 as regards both the organisation and composition of
the court, and the conduct of the proceedings. In sum, the
whole makes up the right to a fair hearing." (Eur. Court
H.R. Golder judgment of 21 January 1975, Series A no. 18,
p. 18, para. 36)
96. The Commission also refers to the following passage in the
Court's Ashingdane judgment:
" ... the degree of access afforded under the national
legislation (must be) sufficient to secure the individual's
'right to a court', having regard to the rule of law in a
democratic society ...
Certainly, the right of access to the courts is not absolute
but may be subject to limitations; these are permitted by
implication since the right of access 'by its very nature
calls for regulation by the State, regulation which may vary
in time and in place according to the needs and resources of
the community and of individuals ... In laying down such
regulation, the Contracting States enjoy a certain margin of
appreciation. Whilst the final decision as to observance of
the Convention's requirements rests with the Court, it is no
part of the Court's function to substitute for the assessment
of the national authorities any other assessment of what
might be the best policy in this field.
Nonetheless, the limitations applied must not restrict or
reduce the access left to the individual in such a way or
to such an extent that the very essence of the right is
impaired ... Furthermore, a limitation will not be
compatible with Article 6 para. 1 (Art. 6-1) if it does not
pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed
and the aim sought to be achieved." (Eur. Court H.R.,
Ashingdane judgment of 28 May 1985, Series A no. 93,
pp. 24-25, para. 57)
97. In the present case the applicant submits that the legislation
in force deprives him of his right of access to court, since only the
TEE is authorised to institute proceedings with regard to his claims
for remuneration. His access to court is limited to a "third party
intervention" which does not entitle him to bring an action before the
courts at the time and in the manner he wishes. He submits in this
respect that the TEE refused on several occasions to lodge subsidiary
actions against the OEK and A.S. for the purpose of capitalising the
interest due on his claims pursuant to Article 296 of the Civil Code.
The TEE also refused to lodge subsidiary actions for the purpose of
readjustment of his claims in relation to inflation rates. Moreover
it delayed on several occasions for nearly four years the institution
of the proceedings requested. The applicant further observes that the
TEE also converted a number of its actions to actions for declaratory
judgments (anagnoristikes agoges).
98. The applicant contends, moreover, that neither the third party
intervention nor the provisions of the Civil Code or the Code of Civil
Procedure secure him an effective access to court.
99. Finally the applicant alleges that he is not even entitled to
institute enforcement proceedings with regard to the judgments
accepting his claims against the OEK and A.S.
100. The Government admit that according to the provisions of Royal
Decree 30/1956 the TEE is exclusively authorised to sue the debtors of
engineers claiming fees for design projects executed by them. They
submit, however, that engineers are not deprived of guarantees against
a possible refusal of the TEE to institute proceedings in substitution
for them.
101. They first observe that engineers have, pursuant to Article
730 of the Civil Code and Article 72 of the Code of Civil Procedure,
the possibility of suing directly the TEE's debtors in case of
negligence on the part of TEE by introducing a subrogation action. As
to the effectiveness of such actions, the Government refer to a
decision given on 6 June 1988 by the Athens Court of Appeal (No.
7892/1988) and to a number of summonses drawn up by lawyers acting on
behalf of engineers. It would then have been possible for the
applicant to introduce such an action against the OEK asking that the
latter pay the fees claimed to the TEE.
102. The Government also submit that, pursuant to Article 914 of
the Civil Code the applicant can introduce an action claiming
indemnity for the damages allegedly caused by the TEE's refusal to
institute proceedings.
103. Moreover, the Government indicate that according to the
provisions of Royal Decree 30/1956 the applicant is entitled to
intervene in the proceedings (prostheti paremvasi) and join as
co-plaintiff or co-defendant. This third party intervention would
furthermore be "autonomous" (autotelis) pursuant to Article 83 of the
Code of Civil Procedure. In this respect the Government submit that
the third party would have the rights of a full party in the
proceedings.
104. The Government further note that the TEE's substitution for
the engineer system has been functioning successfully since its
institution and aims at safeguarding an adequate legal protection to
engineers in their contractual relations with third persons.
105. Finally, the Government argue that since the applicant did not
try to introduce a subrogation action he cannot allege that Greek law
does not secure him effective access to court. The Government
contend that it is a general principle of international law - in the
sense of Article 38 para. 1(c) of the Statute of the International
Court of Justice - that it is for the applicant to prove that the
legal avenues provided under Greek law with regard to his access to
court are not effective.
106. The Commission recalls that Article 6 para. 1 (Art. 6-1)
enshrines a right to institute proceedings before courts in civil
matters (cf. the above-mentioned Golder judgment, ibidem).
107. It notes that the provisions of Article 2 paras. 4 and 5 of
Royal Decree 30/1956 authorise the TEE to bring an action for the
recovery of fees due to engineers for design projects executed by
them. It also notes from the domestic case-law and in particular from
the decisions Nos. 2827/1986 and 12564/1987 of the Athens Court of Appeal
that such claims can be brought before the courts only by the TEE and
not by an engineer.
108. The Commission observes that the Government does not contest
that, according to the provisions of Royal Decree 30/1956, the TEE is
exclusively authorised to sue the engineer's debtors. They refer,
however, to other provisions of Greek law, namely Article 730 of the
Civil Code and Article 72 of the Code of Civil Procedure which have
the effect of attenuating the provisions of Royal Decree 30/1956. The
Commission finds that in so far as the Government submit that
provisions of a general character apply to the situation concerned and
confer on the applicant sufficient access to court, despite the
limitations expressly provided in the specific rule of Article 2 para.
4 of Royal Decree 30/1956, the burden of proving the applicability of
the provisions invoked and the availability and effectiveness of any
remedy deriving therefrom lies upon the Government.
109. In the present case the Government were unable to cite a
single instance in which an engineer had sued his debtors under
Article 730 of the Civil Code or Article 72 of the Code of Civil
Procedure. The Government's argument is essentially based on the
decision No. 7892/1988 of the Athens Court of Appeal. However this
decision relates to enforcement proceedings brought by an engineer
against his debtor after the courts had given a final decision in
previous proceedings concerning the merits of an action brought by the
TEE in substitution for the engineer concerned. It is true that the
Athens Court of Appeal admitted that "there is in the relations
between the TEE (...) and the engineer a 'quasi creditor-debtor
aspect' which exists as long as the TEE has the obligation to request
the payment of the fee and to pay it to the (engineer)". However, the
above statement, being an obiter dictum, cannot be regarded as
establishing a right for the engineer to institute proceedings
separately in the face of the TEE's refusal.
110. In particular the Commission points out that it follows from
the wording of Article 72 that the engineer willing to introduce a
subrogation action must prove that he is a creditor of the TEE. It is
not however clear whether an enginner can be regarded as a creditor of
the TEE before the TEE receives payment of the fees. Moreover, it is
in particular doubtful whether Article 730 of the Civil Code, being a
provision of substantive law, can be interpreted as conferring locus
standi before the courts.
111. The Commission finds that the absence of case-law relating to
the possibility for an engineer to lodge a subrogation action with the
courts exercising the rights conferred to the TEE indicates the
uncertainty of such a possibility not only in practice but also in
theory. It recalls that "the Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical
and effective. This is particularly so of the right of access to the
courts in view of the prominent place held in a democratic society by
the right to a fair trial" (cf. Eur. Court H.R., Airey judgment of
9 October 1979, Series A no. 32, p. 12, para. 24).
112. The Commission finds that the provisions of Article 730 of the
Civil Code and Article 72 of the Code of Civil Procedure do not secure
the applicant a right to institute proceedings with regard to his
remuneration claims.
113. Moreover, the Commission does not regard the possibility for
the engineer to intervene in the proceedings as a third party to be
relevant in the present case. It notes that such an action can be
introduced only after the TEE has instituted proceedings. In this
respect the Commission considers irrelevant the question as to whether
the action concerned is an "autonomous" intervention, as the Government
submit, or a simple intervention with the purpose of supporting the
main party, i.e. the TEE. The Commission notes that it has not been
argued by the Government that the applicant could, in his capacity of
third party, introduce the subsidiary actions which the TEE had refused
to introduce.
114. As regards the possibility for an engineer to sue the TEE for
having refused to introduce the actions requested, the Commission
finds that the possibility of introducing such an action does not
secure to the applicant an access to court with regard to his
remuneration claims.
115. Before the Commission the parties made submissions on two
further issues, namely first, the extent to which the applicant could
avoid the conversion of some of the initial TEE actions against the
OEK into actions for declaratory judgments and, second, whether the
applicant was entitled to institute enforcement proceedings in respect
of the final judgment accepting his claims against the OEK and A.S.
116. As to the first issue, the Commission notes that it was open
to the applicant to pay the court fees in advance in order to avoid the
conversion. It is not for the Commission to examine whether, under
Greek law, the obligation to pay the court fees should fall on the
applicant or on the TEE. It observes that the payment of the court
fees was a condition for the introduction of an action for performance
which has not been satisfied in the present case although it seems to
have been possible for the applicant to comply with it since he did
not allege that the fees were prohibitive.
117. As to the second issue, the Commission notes that it follows
from the decision No. 7892/1988 of the Athens Court of Appeal that
enforcement proceedings can be instituted by the engineer whose claims
were accepted by the courts by means of a subrogation action. The
applicant does not provide any explanation or invoke any particular
circumstance as to why he was prevented from instituting such
proceedings.
118. However, neither the possibility for the applicant to pay the
court fees in advance nor the fact that he was entitled to enforce the
judgments given by the courts in favour of the TEE can be regarded as
securing the applicant a right to institute proceedings with respect
to his remuneration claims or conferring on him a right of equivalent
value. The Commission notes that these possibilities were open to the
applicant only after the TEE had instituted and eventually won the
proceedings concerning his remuneration claims. They cannot therefore
remedy the situation complained of.
119. As regards the particular circumstances of the case the
Commission notes that in the context of the litigation concerning the
applicant's claims against the OEK for central heating installation
projects and those based on the provisions of the law 716/1977, it has
not been possible for the applicant to bring either an action for
compound interest or an action for adjustment of the remuneration
claimed, since the TEE has repeatedly refused to institute proceedings
in this respect. Moreover, in the context of the litigation
concerning the applicant's claims against the OEK for design projects
executed by the applicant since 1971 and against A.S. the TEE delayed
for nearly four years the institution of the proceedings requested by
the applicant.
120. In the Commission's opinion the above facts are directly
attributable to the absence of a right of access to court permitting
the applicant to lodge with the competent courts his actions for
remuneration and any other action relating thereto. Moreover, his
capacity to participate in the proceedings being limited to a "third
party" intervention indicates the applicant's lack of effective
control over the proceedings concerning his own claims.
121. The Commission finds that these impediments constituted a major
hindrance in the effective exercise of the applicant's right to have
his civil rights determined by a court and recalls, in this respect,
that "hindrance in fact can contravene the Convention just like a
legal impediment" (cf. above-mentioned Golder judgment, p. 13, para.
26; above-mentioned Airey judgment p. 14, para. 25). It considers
that the limitations imposed in the present case impaired the very
essence of the applicant's right to court as guaranteed by Article 6
para. 1 (Art. 6-1) of the Convention.
Conclusion
122. The Commission concludes, by a unanimous vote, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant was not granted access to court with regard to
his civil claims as required by this provision.
C. Article 13 (Art. 13) of the Convention
123. The applicant complains of the absence of an effective remedy
under Greek law with regard to his allegation that his right of access
to a court has been violated.
124. 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."
125. However, Article 13 (Art. 13), as a more general guarantee, is
not applicable in cases where the more specific guarantees of Article
6 (Art. 6) apply. The requirements of Article 13 (Art. 13) are less
strict and are accordingly absorbed by Article 6 (Art. 6). The
Commission refers to the constant case-law of the Convention organs
(e.g. Eur. Court H.R., Silver and Others judgment of 25 March 1983,
Series A no. 61, p. 41, para. 110; W v. the United Kingdom judgment of
8 July 1987, Series A no. 121, p. 36, paras. 85-86; Pudas v. Sweden,
Comm. Report 4.12.85, para. 59, and Eur. Court H.R., judgment of 27
October 1987, Series A no. 125-A, p. 17, para. 43).
Conclusion
126. The Commission concludes, by a unanimous vote, that no
separate issue arises under Article 13 (Art. 13) of the Convention.
D. Length of the proceedings
127. The applicant submits that the proceedings he instituted
against the PIKPA and the PNP (cf. paras. 71-76 above) were
unreasonably lengthy. He notes in particular that the Athens Court of
Appeal, the only court which dealt with his case, did not decide on
his locus standi until three years after the commencement of the
proceedings.
128. The Government submit that any possible delays in these
proceedings were essentially due to the conduct of the applicant and
that the competent judicial authorities cannot be held responsible for
them.
129. The Commission recalls that the right under Article 6
para. 1 (Art. 6-1) to have a hearing "within a reasonable time"
applies to all proceedings in which the court decides on civil rights
and obligations. Therefore the Commission has to examine whether
this provision applies to the proceedings complained of which ended
with the Athens Court of Appeal's decision declaring the applicant's
action inadmissible for lack of locus standi.
130. In this respect the Commission observes that in declaring
inadmissible for lack of locus standi the applicant's action the
Athens Court of Appeal not only gave a procedural decision but
determined also, to a certain extent, the applicant's entitlement to
be paid remuneration claimed under the provision of Royal Decree
30/1956. The decision of the Athens Court of Appeal specified that
the applicant could not claim payment of his fees from the PIKPA or
the PNP since such payment could only be claimed by the TEE.
131. Furthermore, the parties' right to have their civil rights
determined within a reasonable time cannot be defeated by the mere fact
that a court gives a decision without examining the merits of the case
brought before it. The Commission finds that a party in civil
proceedings has a right under Article 6 para. 1 (Art. 6-1) of the
Convention that the court dealing with his case decides "within a
reasonable time" whether or not it is competent to examine the merits
of the case (cf. No. 11761/85, Obermeier v. Austria, Comm. Report
15.12.88, para. 197).
132. It follows that the rule of Article 6 para. 1 (Art. 6-1) of the
Convention requiring a hearing "within a reasonable time" applies to
the proceedings complained of.
133. As regards the relevant period the Commission notes that these
proceedings commenced on 1 August 1984 and ended by the decision of
the Athens Court of Appeal given on 16 November 1987. Their total
length exceeds three years and three months. The period the Commission
is competent ratione temporis to consider begins on 20 November 1985,
when recognition by Greece of the right of individual petition took
effect. However in assessing the reasonableness of the time that
elapsed after 20 November 1985 account must be taken of the state of
proceedings (cf. Eur. Court H.R., Foti and others judgment of 10
December 1982, Series A no. 56, pp. 18-19, para. 53).
134. The reasonableness of the length of proceedings has to be
assessed in each case according to the particular circumstances and
having regard to the criteria enunciated in the case-law of the
European Court of Human Rights (cf. Eur. Court H.R., Zimmermann and
Steiner judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).
135. In this context the Commission must have regard, inter alia,
to the complexity of the factual or legal issues raised by the case,
to the conduct of the applicant and the competent authorities; in
addition, only delays attributable to the State may justify a finding
of a failure to comply with the "reasonable time" requirement (cf.
inter alia, Eur. Court H.R., König judgment of 28 June 1978, Series A
no. 27, pp. 34-40, paras. 99, 102-105 and 107-111; Buchholz judgment
of 6 May 1981, Series A no. 42, pp. 15-16, para. 49).
(i) The complexity of the case
136. The Commission does not regard the issue of the applicant's
locus standi as complex. The complexity of the merits of the case
cannot be taken into consideration, since the decision given by the
court was not based on an examination of the merits of the case.
137. The Commission finds, therefore, that the length of the
proceedings concerned cannot be justified by the complexity of the
case.
(ii) The conduct of the applicant
138. The Government considers the conduct of the applicant to be
the main factor of any delays in the proceedings. They note in
particular that after the decision of the Court of Appeal on
26 February 1985 the applicant delayed for nearly one year the
submission of the documents requested. Moreover they submit that
after the second judgment of the Court of Appeal on 15 July 1986 it
was open to the applicant to request the Court to hold a hearing on
the case. This he did only on 18 February 1987.
The Government also submit that the applicant was aware
of his lack of locus standi in the proceedings concerned. He did not,
however, request the TEE to lodge an action with the Athens Court of
Appeal in order to comply with the requirements of the provisions of
Royal Decree 30/1956.
139. The Commission observes that on 20 November 1985, that is the
date on which recognition by Greece of the right of individual
petition took effect, the situation was that the applicant had not
submitted the evidence which the court had requested on 26 February
1985. The delay during the period from 20 November 1985 to 13 January
1986, when he did produce that evidence, is directly attributable to
the applicant.
140. On the other hand, it appears that the reasons why the
applicant did not ask for a hearing in the period between 15 July 1986
and 18 February 1987 was that during that time an expert opinion was
being prepared following a request by the Court. Accordingly, the
delays which have occurred during that period cannot be imputed to the
applicant since responsibility lies on the judicial authorities to
observe procedural economy in the taking of evidence and in particular
to supervise the work of individual experts (cf. No. 7987/77, Andorfer
Tonwerke v. Austria, Comm. Report 8.3.82, D.R. 32, p. 94, para. 86).
Furthermore, as regards the Government's allegation that the applicant
knew that he was not entitled to institute the proceedings concerned,
the Commission does not consider this element to be relevant in the
present case. It refers, in this respect, to the judgment given by
the Court of Appeal which found that the applicant could reasonably
doubt as to whether he was entitled to institute the proceedings.
141. The Commission finds that the applicant's conduct contributed
to some extent to the prolongation of the proceedings until 13 January
1986. It is not however possible to impute to the applicant the
delays which have occurred after that date.
(iii) The manner in which the proceedings were
conducted by the competent judicial authority
142. The Government submits that the Court of Appeal is not
responsible for the conduct of the trial of the applicant's action
since civil proceedings in Greece are governed by the principle of the
conduct of the litigation by the parties.
143. The Commission recalls that this principle does not dispense
the judicial authorities from ensuring the trial of the action
expeditiously as required by Article 6 (Art. 6) of the Convention
(cf. the above-mentioned Buchholz judgment, p. 16, para. 50).
144. In the present case the Commission notes that the applicant's
action was pending before the Athens Court of Appeal for more than
three years and for more than two years after 20 November 1985. It
also notes that no reason was given to explain why the decision on the
applicant's locus standi was taken at the latest stage of the
proceedings. Consequently, there is no reason why the decision
rejecting the applicant's action for lack of locus standi could not
have been taken after the first hearing of the case on 26 February
1985. In this context the evidence requested after the first hearing
and the expert opinion ordered on 15 July 1986 appear totally
unnecessary.
145. The Commission finds that the manner in which the Court of
Appeal conducted the proceedings gave rise to unnecessary delay and
should be regarded as the main cause of the length of the proceedings.
Conclusion
146. The Commission concludes, by 11 votes to 2, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant's civil rights and obligations were not
determined within a reasonable time as required by this provision.
E. Recapitulation
147. The Commission concludes:
- by a unanimous vote, that there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention in that the applicant
was not granted access to a court with regard to his civil claims as
required by this provision (para. 122);
- by a unanimous vote, that no separate issue arises under
Article 13 (Art. 13) of the Convention (para. 126);
- by 11 votes to 2, that there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention in that the applicant's
civil rights and obligations were not determined within a reasonable
time as required by this provision (para. 146).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Partly Dissenting Opinion of Mr. Trechsel and Mrs. Liddy
While we are in agreement with the majority of the Commisison
on the first two conclusions, we find that no separate issue arises
with regard to the length of proceedings the applicant instituted
against the PIKPA and the PNP. In fact, the Commission has found that
the right of access to court is violated because the applicant cannot
himself bring an action in court for fees he alleges to be due to
him. With regard to PIKPA/PNP, the applicant therefore tried a road
which, from the outset, was not open to him. That the attempt, doomed
to fail from the outset, took an unreasonably long time, does not, in
our view, constitute a separate issue besides the violation of Article
6 consisting in the barring of the road.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
Application No. 12750/87
5 January 1987 Introduction of the application
24 February 1987 Registration of the application
Examination of admissibility
12 December 1987 Commission's deliberations and
decision to invite the Government to
submit observations in writing on the
admissibility and merits of the
application
31 May 1988 Government's observations
4 April, 13 July Applicant's additional observations
and 4 August 1988 and observations in reply
11 October 1988 Commission's further deliberations
and decision to invite the parties
to an oral hearing
7 December 1988 Hearing on admissibility and
merits, Commission's deliberations
and decision to declare the
application partially admissible
19 January 1989 Commission approves text of decision
on admissibility
Examination of the merits
15 February 1989 Decision on admissibility communicated
to the parties who are invited to
submit observations on the merits
17 February and Applicant's observations on the
14 March 1989 merits
28 March 1989 Government's observations on the
merits
6 May 1989 Consideration of state of proceedings
7 October 1989 Consideration of state of proceedings
14 November 1989 Further submissions of the applicant
9 January 1990 Consideration of state of proceedings
Application No. 13780/88
6 April 1988 Introduction of the application
20 April 1988 Registration of the application
Examination of admissibility
14 March 1989 Commission's deliberations and
decision to invite the Government to
submit observations in writing on the
admissibility and merits of the
application
18 May 1989 Government's observations
26 June 1989 Applicant's observations
11 October 1988 Commission's deliberations and
decision to declare the application
partially admissible
Examination of the merits
27 October 1989 Decision on admissibility communicated
to the parties who are invited to
submit observations on the merits
13 and 29 November 1989 Applicant's observations on the merits
9 December 1989 Consideration of state of proceedings
12 December 1989 Government's observations on the merits
Application No. 14003/88
24 June 1988 Introduction of the application
5 July 1988 Registration of the application
Examination of admissibility
5 May 1988 Commission's deliberations and
decision to invite the Government to
submit observations in writing as
regards a number of complaints
9 May 1988 Decision of the Commission to declare
inadmissible the remainder of the
application
25 July 1989 Government's observations
8 August 1989 Applicant's observations
11 October 1989 Commission's deliberations and
decision to declare the application
partially admissible
Examination of the merits
17 October 1989 Decision on admissibility communicated
to the parties who are invited to
submit observations on the merits
1 November 1989 Applicant's observations on the
merits
9 December 1989 Consideration of state of proceedings
Applications No. 12750/87, 13780/88, 14003/88
8 March 1990 Commission's deliberations on the
merits of the applications, decision
to join the applications, final
votes and adoption of the Report