Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27159/95

by Nicholas STAMOULAKATOS

against Greece

The European Commission of Human Rights (First Chamber) sitting in

private on 12 April 1996, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 1 April 1995 by

Nicholas STAMOULAKATOS against Greece and registered on 7 April 1995

under file No. 27159/95;

Having regard to:

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

Commission;

- the Commission's decision of 6 September 1995 to communicate the

application;

- the observations submitted by the respondent Government on

9 November 1995 and the observations in reply submitted by the

applicant on 6 December 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1936 in Babini, Greece.

He is a journalist and resides in London.

The facts of the case, as they have been submitted by the parties,

can be summarised as follows:

A. The particular circumstances of the case

On 23 February 1987 the applicant submitted to the Prefecture of

Athens an application for a disability pension under Article 31 of

law 1543/85.

An administrative inquiry was carried out by the Municipality of

Moshato which concluded on 15 December 1987 that the applicant was

entitled to a pension because he had been tortured during the

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

health.

On 29 January 1988 the Health Committee of the Prefecture of Athens

advised the General Accounting Office of the State to grant the applicant

a pension. The Health Committee considered that the applicant had been

incarcerated because of his activities against the military dictatorship

and had been tortured. As a result, his right hand had been paralysed.

On 23 May 1988 the General Accounting Office (Geniko Logistirio tu

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

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

Accounting Office considered that the applicant's allegations were not

proved by court decisions or public documents issued before 14 June 1984

and that the applicant had not been wounded as a result either of his

direct involvement in the struggle against the dictatorial regime or his

opposition thereto. On 14 June 1988 the applicant appealed to the Audit

Court (Elengtiko Sinedrio).

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

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

Chamber considered that the applicant's allegations were not proven by

a court decision or public document issued before 14 June 1984. It also

found that the torturing of the applicant during the dictatorship did not

result in a "wounding" but in an "illness". The law, however, provided

for the award of a pension to persons who had been "wounded" as a result

of their opposition to the dictatorship.

On 17 April 1989 the applicant appealed in cassation to the Audit

Court sitting in Plenary claiming that the Third Chamber had committed

an error of law.

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

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

applicant had not been duly summoned and adjourned the case.

Another hearing was held on 4 November 1992 at which the applicant

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

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

examine in depth the cause of the applicant's right hand paralysis. It

sent the case back to its Third Chamber for reconsideration.

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

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

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

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

proceedings against the applicant before 14 June 1984. It also sent the

applicant's file to the Health Committee of the Region of Attica ordering

it to examine the applicant and to deliver an opinion on the following

issues: Was the applicant's paralysis the result of "wounding" or

"illness"? What was the extent of his disability? Was there any

relationship between his disability and his activities during the

dictatorship?

On 25 November 1994 the Health Committee considered that it could

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

evidence that the applicant's health condition was related to his

activities during the dictatorship. On 29 March 1995 the applicant was

informed of the Committee's decision not to deliver an opinion.

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

The decision of the Third Chamber of the Audit Court has not yet been

issued.

B. Relevant domestic law

Article 31 of law 1543/85 provides the following:

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

their direct involvement in the struggle against the

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

opposition to the above-mentioned regime are entitled to a

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

circumstances have been recognised in a court decision or a

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

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

of the length of the proceedings. He also complains under Article 13 of

the Convention that he does not have any effective remedy for the above-

mentioned violation.

2. The applicant complains under Articles 5 and 14 of the Convention

that he has not been awarded a pension. He also complains under

Article 13 of the Convention that he does not have any effective remedy

for the above-mentioned violation.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 April 1995 and registered on

7 April 1995.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2 (b)

of the Rules of Procedure.

The Government's written observations were submitted on

9 November 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 6 December 1995.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of

the Convention of the length of the proceedings.

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

provides as follows:

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

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

The Government submit that the complaint is incompatible ratione

temporis. The proceedings complained of concerned an application for a

pension based on facts which allegedly occurred before 19 November 1985,

the date figuring in the declaration of Greece recognising the right of

individual petition. Alternatively, they submit that the applicant has

not exhausted domestic remedies. The proceedings are still pending.

Moreover, the applicant never complained to the Audit Court of the

delays, neither did he request that his case be given priority.

The Government further argue that, in any event, Article 6 para. 1

(Art. 6-1) of the Convention is not applicable in the proceedings in

question, because the applicant's claim to a pension was based on public

law. The Government stress, in this connection, that the applicant did

not claim a benefit under a social insurance scheme.

If the Commission were to consider that the applicant claimed "a

civil right", the Government submit that the complaint should be rejected

as manifestly ill-founded. The period to be taken into consideration

cannot comprise the phase before the administrative authorities, because

the latter, not being judicial organs, could not have "determined" the

dispute. In any event, there were no delays before the administrative

authorities and the Audit Court until 10 March 1988. All subsequent

delays, including the delay caused by the adjournment of 24 June 1992,

must be attributed to the failure of the applicant to indicate one single

address for the purposes of notification of the various court summonses.

Once the address of the applicant was established and the proceedings

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

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

failed to cooperate in the proceedings as he never submitted any

documents to substantiate his allegations.

The applicant refutes in general the Government's submissions.

The Commission considers that the proceedings complained of fall

within its competence ratione temporis, since they were initiated on

14 June 1988, i.e. after 20 November 1985, the date figuring in Greece's

declaration under Article 25 (Art. 25) of the Convention.

It also considers that the complaint cannot be rejected for non-

exhaustion of domestic remedies. Contrary to what the Government argue

and in accordance with the case-law of the organs of the Convention, an

applicant may complain under Article 25 (Art. 25) of the Convention of

the length of proceedings before their conclusion (see No. 18996/91,

Garyfallou v. Greece, 24.10.95, unpublished; and by implication, Nonnis

v. Italy, Comm. Report 15.1.91, para. 28, Eur. Court H.R., Series A

no. 223-D, p. 41, and Eur. Court H.R., Neumeister judgment of

27 June 1968, Series A no. 8, p. 38, para. 7). As regards the

Government's other submission that the applicant never complained of the

length of the proceedings, the Commission recalls its case-law to the

effect that the burden of proving the existence of available and

sufficient domestic remedies lies upon the State invoking non-exhaustion

(No. 11208/84, Dec. 4.3.86, D.R. 41, p. 182). In the present case the

Government have not indicated any remedies which the applicant should

have exhausted. The applicant's failure to request that his case be given

priority cannot amount to non-exhaustion, as the Government argue, since

the Government have not shown that such a measure would have been

effective.

As regards the parties' remaining arguments, the Commission

considers that, in the light of the criteria established in the case-law

of the organs of the Convention concerning "reasonable time" (complexity

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

dealing with the case), the complaint concerning the length of the

proceedings, including the question of the applicability of Article 6

para. 1 (Art. 6-1) of the Convention, raises serious issues of fact and

law which cannot be resolved at the present stage of the examination of

the application, but calls for an examination of the merits.

2. The applicant also complains under Article 13 (Art. 13) of the

Convention that he does not have any effective remedy for the violation

of his right to a hearing within a reasonable time in the determination

of his civil rights.

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."

In the light of the conclusion reached above as regards the

admissibility of the applicant's complaint concerning the length of the

proceedings, the Commission considers that this part of the application

raises serious issues of fact and law which cannot be resolved at the

present stage of the examination of the application, but calls for an

examination of the merits.

3. Finally, the applicant complains under Articles 5 and 14

(Art. 5, 14) of the Convention that he has not been awarded a pension.

He also complains under Article 13 (Art. 13) of the Convention that he

does not have any effective remedy for the above-mentioned violation.

The Commission recalls that the proceedings instituted by the

applicant before the domestic authorities in connection with his claim

to a pension are still pending. So, even assuming that the above claim

is capable of raising an issue under the Convention and/or its additional

Protocol, the applicant's complaint is premature. It must be, therefore,

rejected as manifestly ill-founded under Article 27 para. 2 (Art. 27-2)

of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the complaint

concerning the length of the proceedings and the lack of an effective

remedy in that connection;

DECLARES INADMISSIBLE the remainder of the application.

Secretary Acting President

to the First Chamber of the First Chamber

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

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STAMOULAKATOS v. GREECE

STAMOULAKATOS v. GREECE