Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27418/95

by Antonios GERAKOPOULOS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 February 1995

by Antonios GERAKOPOULOS against Greece and registered on 29 May 1995

under file No. 27418/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

1 April 1996 and the observations in reply submitted by the

applicant on 29 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1921. He is a

mineralogist and resides in Athens.

The facts of the case as submitted by the applicant may be

summarised as follows.

On 7 September 1954 the applicant became the co-owner of a mine

in Evros (Greece).

On 7 July 1983, by decision No. 10/14/3/11048, the Minister of

Industry declared that the applicant and the co-owner company had lost

their rights on the mine on the ground that they had not fulfilled

their obligation under the Mining Code to undertake between 1978 and

1980 works at the mine of a value not less than 10.530.000 drachmas

(this amount was calculated on the basis of the surface of the mine

multiplied by 1.000.000 drachmas per year). The same decision stated

that the mine owners could appeal to the Administrative Court of Mines

(Dioikitiko Dikastirio Metqllion) within 30 days from its service. The

decision was served on the applicant on 12 August 1983.

Actions undertaken by the applicant

On 19 September 1983 the applicant lodged before the

Administrative Court of Mines an administrative appeal against decision

No. 10/14/3/11048, which was dismissed on 4 April 1984 on the ground

that it was out of time (decision No. 35/1984).

On 15 February 1985 the applicant lodged an appeal in cassation

(anairesi) against this decision.

On 21 October 1987, by decision No. 4374/1987, the Council of

State (Simvoulio tis Epikrateias) dismissed the applicant's appeal in

cassation as being ill-founded.

Actions undertaken by the co-owner company

On 27 July 1983 the co-owner company lodged an administrative

appeal against decision No. 10/14/3/11048 before the Administrative

Court of Mines.

On 8 May 1985 the applicant applied to join the proceedings as

an intervening third-party. The hearing took place on 3 July 1985.

On 4 December 1985, by judgment No. 37/1985, the Administrative

Court of Mines dismissed the applicant's intervention. It also rejected

the co-owner company's appeal on the ground that the mine at issue had

not been sufficiently exploited.

On 22 April 1986 the applicant, acting in his name and also on

behalf of the co-owner company, lodged an appeal in cassation against

this judgment.

On 21 October 1987, by decision No. 4375/1987, the Council of

State quashed the decision at issue on the ground that the intervention

of the applicant should have been allowed and referred the case to the

First Instance Administrative Court (Dioikitiko Protodikeio) of Athens

which had in the meantime taken over the competence of the

Administrative Court of Mines (Law No. 1406/1983).

On 29 September 1988, by decision No. 15035/1988, the First

Instance Administrative Court of Athens rejected the appeal lodged on

27 July 1983 as being ill-founded. The applicant's intervention was in

consequence also rejected.

On 25 July and 7 August 1989 the co-owner company and the

applicant respectively appealed to the Athens Administrative Court of

Appeal (Dioikitiko Efeteio).

On 19 April and 6 August 1991 the applicant filed additional

reasons for appeal.

The hearing was fixed for 7 February 1991 and then adjourned to

23 May 1991 at the request of the appellants. On 23 May 1991 the

hearing was again adjourned because the members of the Athens Bar were

on strike.

The case was heard on 19 September 1991.

On 16 January 1992, by decision No. 103/1992, the appeals were

dismissed. The Court held that the contested decision was not subject

to an ordinary appeal but only to an appeal in cassation.

On 21 May 1992 the applicant and the co-owner company lodged with

the Council of State an appeal in cassation against this judgment

arguing that, in declaring itself incompetent to examine their appeal,

the Athens Administrative Court of Appeal had violated the law.

On 12 March 1993 the applicant and the co-owner company filed

additional reasons for cassation.

The case was heard on 17 November 1993.

On 7 September 1994, by decision No. 2389/1994, the Council of

State upheld the contested decision and rejected the appeal in

cassation.

Relevant domestic law

A. According to the Mining Code, the minerals belong to public

ownership and are assigned by the State to any person, in accordance

with the provisions of the law. The main obligation of a mine owner is

the exploitation of the mine (Articles 102 and s.). When the competent

public service establishes that no exploitation or mining research has

been carried out in a mine in accordance with the provisions of the

law, it forwards the pertinent particulars to the Mines Board which,

after hearing the concerned parties, decides on the forfeiture of the

right of mine ownership (Article 121).

B. By virtue of Law No. 1406/1983 all administrative disputes

(dioikitikes diafores ousias,) except for actions for annulment

(akirotikes diafores), come within the competence of the lower

administrative courts (Taktika Dioikitika Dikastiria), which replaced

all special administrative courts (Eidika Dioikitika Dikastiria).

According to Article 10 of this law, as interpreted by the constant

case-law, no appeal lies against a decision issued by a lower

administrative court in a case which had been heard by a special

administrative court in first instance and by the Council of State on

appeal, and which is then remanded to the lower administrative court.

COMPLAINTS

1. The applicant complains that the forfeiture of his rights on the

mine in Evros amounts to a violation of the rights secured to him under

Articles 8 para. 1 of the Convention and 1 of Protocol No. 1.

2. The applicant further complains under Article 6 para. 1 of the

Convention of the length of the proceedings.

3. The applicant complains under Articles 6 para. 1, 13, 14 and 18

of the Convention that the Greek courts did not correctly apply the

domestic law in his case and that his right to a fair hearing by

impartial courts has been violated. In particular, the applicant

alleges that the Greek courts did not carefully consider his case and

applied their case-law in a way that was not favourable to him, which

proved that they were biased against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 February 1995 and registered

on 29 May 1995.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

1 April 1996 after an extension of the time-limit fixed for that

purpose. The applicant replied on 29 November 1996, also after an

extension of the time-limit.

THE LAW

1. The applicant complains that the forfeiture of his rights on the

mine in Evros amounts to a violation of the rights secured to him under

Articles 8 para. 1 (Art. 8-1) of the Convention and 1 of Protocol No.

1 (P1-1).

The Commission will examine this complaint under Article 1 of

Protocol No. 1 (P1-1) which reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The respondent Government argue on three separate grounds, namely

failure to comply with the six months rule and incompetence of the

Commission ratione personae and temporis, that the application is

inadmissible:

The Government first argue that the application is out of time

under Article 26 (Art. 26) of the Convention, which requires complaints

to be submitted to the Commission within six months from the date on

which the final decision was taken. They submit that the proceedings

undertaken by the applicant ended on 21 October 1987 when the Council

of State dismissed his appeal in cassation. The applicant, however, did

not introduce his application to the Commission until 24 February 1995,

i.e. more than seven years after the end of the proceedings.

As regards the proceedings which ended on 7 September 1994, the

Government submit that the applicant cannot be considered a "victim"

within the meaning of Article 25 (Art. 25) of the Convention, given the

fact that these proceedings were undertaken by the co-owner company and

their results, whatever they were, would have consequences only for

that company. The fact that the applicant participated in the

proceedings as an intervening third-party is of no importance for the

requirements of Article 25 (Art. 25), since the outcome of the

proceedings could not have affected the final loss of the applicant's

own property rights, a matter which has been settled since 1987.

The Government also point out that under the terms of the

declaration made by Greece recognising the right of individual

petition, the Commission is not competent ratione temporis to examine

applications relating to events which took place before

20 November 1985. Therefore, all complaints of the applicant referring

to actions which took place before this date should be dismissed as

inadmissible.

Alternatively, the Government submit that the application is

manifestly ill-founded.

The applicant rejects the arguments of the respondent Government.

The Commission notes that under Article 26 (Art. 26) of the

Convention it may only deal with a matter "within a period of six

months from the date on which the final decision was taken".

In the present case the Commission notes that the proceedings

undertaken by the applicant ended on 21 October 1987, which is

considerably more than six months before the date on which he submitted

his application before the Commission.

It follows that this part of the application must be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention and

that the Commission may only deal with the proceedings undertaken by

the co-owner company and in which the applicant participated as an

intervening third-party.

As regards the Government's objection that the applicant cannot

claim to be a victim of the Convention concerning the outcome of the

proceedings undertaken by the co-owner company, the Commission notes

that on 8 May 1985 the applicant applied to join these proceedings as

an intervening third-party. Both he and the co-owner company contested

decision No. 10/14/3/11048 by virtue of which they had lost their

property rights on the same mine. If this decision had been overturned,

the applicant's property rights would also have been affected.

In the light of the above, and given also the fact that the

Council of State allowed the applicant's intervention (decision

No. 4375/1987), the Commission cannot accept the Government's argument,

according to which the outcome of the proceedings could not affect the

applicant's rights, and therefore considers that the applicant can

claim to be a "victim" within the meaning of Article 25 (Art. 25) of

the Convention.

As regards the merits of the case, the Commission notes that

under Greek law property rights on mines can be assigned by the State

to any person provided, inter alia, that productive researches are

carried out in the mine. Otherwise, the law provides that the owner

loses his rights on the mine.

Accordingly, the Commission notes that in the present case the

applicant had only a conditional right to property which he lost

because he had not fulfilled his obligations under Greek law.

Therefore, the Commission considers that the applicant was deprived of

his possessions in the public interest and according to the conditions

provided for by law.

It follows that this part of the application is manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains of the length of the proceedings

and invokes Article 6 para. 1 (Art. 6-1) of the Convention which,

insofar as relevant, provides as follows:

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

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

tribunal ..."

In the present case the proceedings started on 8 May 1985 when

the applicant applied to join the proceedings as an intervening third-

party and ended on 7 September 1994. They therefore lasted nine years

and four months.

The Commission recalls that the period to be considered begins

on 20 November 1985, when the 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 then state of proceedings (see Eur. Court HR, Foti

and others v. Italy judgment of 10 December 1982, Series A no. 56,

p. 18, para. 53). Therefore, the period to which the Commission's

examination relates is eight years, nine months and eighteen days.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed according to the circumstances of the case

and with reference to the following criteria: the complexity of the

case and the conduct of the applicant and of the authorities dealing

with the case (Eur. Court HR, Vernillo v. Italy judgment of

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

The Commission notes that the case concerned property rights on

a mine and necessitated a careful study by the competent authorities

of whether the mine at issue had been exploited according to the

applicable legal criteria. Therefore the Commission considers that the

case had a certain complexity.

As regards the conduct of the parties, the Commission recalls

that it should be borne in mind that in civil matters the exercise of

the right to a hearing within a reasonable time is subject to diligence

being shown by the party concerned (Editions Périscope v. France, Comm.

Report 11.10.90, para. 44, Eur. Court HR, Series A no. 234-B, p. 72).

In the present case the Commission notes that on three occasions

the applicant took several months to take the relevant procedural

steps: from 4 December 1985 to 22 April 1986 (more than four months);

from 29 September 1988 to 7 August 1989 (more than ten months); from

16 January 1992 to 21 May 1992 (more than four months). The Commission

also notes that the hearing before the Athens Administrative Court of

Appeal was adjourned at the request of the appellants, and this

adjournment caused a delay of more than seven months. It therefore

appears that the applicant contributed substantially to the length of

the proceedings.

The Commission recalls that only delays attributable to the State

may justify a finding of a failure to comply with the "reasonable time"

requirement (Eur. Court HR, H. v. France judgment of 24 October 1989,

Series A no. 162, pp. 21-22, para. 55). In the present case the

Commission has found basically two delays which could be attributed to

the Council of State, namely an eighteen months period from

22 April 1986 to 21 October 1987, and a period of almost ten months

from 17 November 1993 to 7 September 1994. As for the rest, the

chronology of the proceedings shows that the judicial authorities have

shown due diligence in the conduct of the proceedings.

Having regard to all the circumstances of the case and in

particular to the fact that within the period complained of the case

was heard by four different courts plus the Administrative Court of

Mines, the Commission concludes that, although some of the delays could

probably have been avoided, they are not sufficiently serious to

warrant the conclusion that the total duration of the proceedings is

excessive.

It follows that this part of the application is manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant complains under Articles 6 para. 1, 13, 14 and 18

(Art. 6-1, 13, 14, 18) of the Convention that the Greek courts did not

correctly apply the domestic law in his case and that his right to a

fair hearing by impartial courts has been violated. In particular, the

applicant alleges that the Greek courts did not carefully consider his

case and applied their case-law in a way that was not favourable to

him, which proved that they were biased against him.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its sole task is to ensure observance of the engagements

undertaken by the High Contracting Parties in the Convention. It is not

competent to examine applications concerning errors of law or fact

allegedly committed by the competent national authorities, to whom it

falls, in the first place, to interpret and apply domestic law. The

Commission is not competent to look into allegations concerning such

errors except where, and to the extent that, they seem likely to have

entailed a violation of the rights and freedoms guaranteed by the

Convention (No. 19890/92, Dec. 3.5.93, D.R. 74, p. 234).

In the light of all the material in its possession and, in so far

as the matters complained of are within its competence, the Commission

finds that they do not disclose any appearance of a violation of the

rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission,

- by a majority,

DECLARES INADMISSIBLE the applicant's complaint concerning the

length of the proceedings;

- unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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GERAKOPOULOS v. GREECE

GERAKOPOULOS v. GREECE

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