AS TO THE ADMISSIBILITY OF

                      Application No. 23202/94

                      by Nicholas PHILIS

                      against Greece

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

private on 5 March 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. 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 20 September 1993 by

Nicholas PHILIS against Greece and registered on 7 January 1994 under

file No. 23202/94;

      Having regard to:

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

Commission;

-     the Commission's decision of 11 January 1995 to communicate the

      applicant's complaints regarding his unsuccessful attempt to

      intervene in the proceedings instituted on his behalf by the TEE

      against the Children's Hospital of Penteli and the length of the

      proceedings against the same hospital and to declare inadmissible

      the remainder of the application;

-     the observations submitted by the respondent Government on

      24 May 1995 and the observations in reply submitted by the applicant

      on 6 July 1995 and 24 November 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Greek citizen born in 1937. He is an engineer and

resides in Athens.

      The facts of the case, as submitted by the parties, may be

summarised as follows:

a)    Particular circumstances of the case

      On 30 October 1981 the Public Foundation for Social Welfare and

Assistance (Patriotiko Idrima Kinonikis Pronias ke Antilipseos), a public

body under the authority of the Ministry of Health and Social Welfare,

commissioned the applicant to design a project for the extension of the

heating system of one of its hospitals, the Penteli Children's Hospital

(Pediko Nosokomio Pentelis - hereafter PNP).

      When a dispute arose concerning the fees to be paid to the

applicant, the latter instituted civil proceedings before the Court of

Appeal (Efetio) of Athens on 1 August 1984. On 16 November 1987 the Court

of Appeal dismissed the action. The court considered that, by virtue of

the royal decree 30/1956, only the Technical Chamber of Greece (Tehniko

Epimelitirio Ellados - hereafter TEE) had capacity to bring proceedings

to recover payment of fees, being subrogated to the rights of the

engineer for these purposes.

      On 6 April 1988 the applicant lodged an application with the

European Commission of Human Rights complaining, inter alia, that the

decision of the Athens Court of Appeal violated his right of access to

court (application No. 13780/88). On 11 October 1989 the Commission

declared the complaint admissible.

      On 30 November 1989 the applicant requested the TEE to institute

proceedings against the PNP for the recovery of his fees for the project

mentioned above. The TEE complied with the applicant's request on

27 December 1989.

      On 21 May 1990 the complaint which had been declared admissible by

the Commission on 11 October 1989 was referred to the European Court of

Human Rights.

      On 25 September 1990 the TEE requested the adjournment of the

proceedings before the Athens Court of Appeal to await the delivery of

the judgment of the European Court of Human Rights. On 18 October 1990

the Court of Appeal acceded to this request.

      On 27 August 1991 the European Court of Human Rights rendered its

judgment (Eur. Court H.R., Philis judgment of 27 August 1991, Series A

no. 209). The Court considered that the royal decree 30/1956, which gave

the TEE exclusive capacity to take legal proceedings for the recovery of

fees payable to engineers, violated the applicant's right of access to

court under Article 6 para. 1 of the Convention.

      On 8 October 1992 the applicant intervened in the domestic

proceedings in support of the TEE. His intervention was lodged under

Article 80 of the Code of Civil Procedure (prostheti paremvasi).

      On 1 December 1992 the Court of Appeal adjourned the examination of

the case, as the lawyers were on strike. On 16 February 1993 the

applicant attempted to represent himself in the proceedings, as his

lawyer was on strike. The court, however, considered the applicant to be

absent and adjourned once more the examination of the case. A hearing was

finally held on 25 May 1993, in which the applicant was represented by

a lawyer and which the TEE did not attend.

      On 19 July 1993 the Athens Court of Appeal issued a decision

rejecting the applicant's intervention with the following reasoning. The

court first examined the express terms of the applicant's request and

noted that the applicant sought to obtain a ruling from the court

ordering the PNP to pay the sum of money in issue directly to him. Such

a request, however, could not be reconciled with the formal nature of the

applicant's intervention (prostheti paremvasi).

      The court further considered that the applicant's request could be

interpreted in a different manner, as if the applicant were seeking to

substitute himself to the TEE as the principal plaintiff in the action

the subject-matter of which remained the same, i.e. payment of the fees

to the TEE. Under national law, however, this could not happen without

the agreement of both the TEE and the PNP. Although the non-appearance

of the TEE at the hearing of 25 May 1993 could be taken to signify tacit

agreement, the consent of the PNP was not forthcoming.

      Finally, the court considered that it should examine the real nature

of the applicant's intervention which was in essence an intervention

under Article 79 of the Code of Civil Procedure (kiria paremvasi) by

which the applicant vindicated the right to sue directly the PNP.

However, in its judgment of 16 November 1987 the Court of Appeal  had

already considered that the applicant had no such right. This decision

constituted res judicata between the applicant and the PNP. The judgment

of the European Court of Human Rights of 27 August 1991 could not set

aside the res judicata effect of that judgment. In the light of all the

above, the Court of Appeal considered that it could not allow the

applicant's intervention.

      On 15 December 1993 the Special Supreme Court (Anotato Idiko

Dikastirio) pronounced on a dispute which arose between the Council of

State (Simvulio Epikratias) and the Court of Cassation (Arios Pagos) as

to the lawfulness of the promulgation of the royal decree 30/1956. The

Special Supreme Court held that the Act of Parliament on the basis of

which the royal decree 30/1956 had been promulgated did not envisage a

system whereby the TEE would have exclusive capacity to take legal

proceedings for the recovery of fees payable to engineers.

      On 11 March 1994 the royal decree 30/1956 was amended to give

engineers the right to institute proceedings themselves for the recovery

of their fees.

      On 5 December 1994 the Committee of Ministers of the Council of

Europe declared that it had exercised its functions under Article 54 of

the Convention following the European Court's judgment of 27 August 1991.

      The action brought by the TEE against the PNP is still pending.

b)    Relevant domestic law

      The Code of Civil Procedure provides the following in respect of

third party interventions:

      Article 79 para. 1

      "A third person who claims in whole or in part what is at

      stake in a trial which is pending between others has the right

      to intervene .... in the proceedings"

      Article 80

      "If, in proceedings pending before a court, a third party has

      an interest in the success of one of the parties, he may

      intervene in support of the claims of that party until final

      judgment has been given."

      Article 82

      "The intervener may take all procedural steps permitted by law

      in the interests of the party in support of which he has

      intervened ..."

      Article 85

      "If both the plaintiff and the defendant agree, the person who

      has intervened in support of either one of them has the right

      to take the place of the party in support of which he has

      intervened. The original party concerned does not participate

      any longer in the proceedings. ...."

COMPLAINTS

1.    The applicant complains that, by rejecting his intervention, the

Court of Appeal failed to ensure effective respect for his right of

access to a court under Article 6 para. 1 of the Convention. He claims

that the decision of 19 July 1993 of the Court of Appeal was final in

that it could not be challenged before the Court of Cassation.

2.    The applicant also complains that, despite his financial situation,

he had to be represented by counsel and was not allowed to represent

himself in his attempt to intervene in the proceedings. This amounts to

a violation of his right of access to court under Article 6 para. 1 of

the Convention as well.

3.    Originally, the applicant complained under Article 6 para. 1 of the

Convention about the length of the proceedings instituted by him or on

his behalf against the PNP. In his observations in reply the applicant

declared that he wished to complain only about the length of the

proceedings instituted on his behalf by the TEE on 27 December 1989.

4.    In his observations in reply of 6 July 1995 the applicant also

complained for the first time of a violation of Article 13 of the

Convention, in that he did not have an effective remedy under national

law for the above-mentioned violations of his rights under Article 6

para. 1 of the Convention. The decision of 19 July 1993 of the Court of

Appeal was final and he could not obtain redress for the delays in the

proceedings instituted on his behalf by the TEE.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 20 September 1993 and registered

on 7 January 1994.

      On 11 January 1995 the Commission (First Chamber) invited the

Government to submit written observations on the admissibility and merits

of the applicant's complaints regarding his unsuccessful attempt to

intervene in the proceedings instituted on his behalf by the TEE against

the Children's Hospital of Penteli and the length of the proceedings

against the same hospital. The Commission declared inadmissible the

remainder of the application.

      The Government's observations were submitted on 24 May 1995 after

an extension of the time-limit fixed for this purpose. On 6 July 1995 and

24 November 1995 the applicant submitted his observations in reply after

an extension of the time-limit fixed for this purpose.

THE LAW

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

Convention that, by rejecting his intervention by a decision which was

final, the Court of Appeal failed to ensure effective respect for his

right of access to a court under Article 6 para. 1 (Art. 6-1) of the

Convention.

      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 .... by a .... tribunal ...."

      The Government argue that, after the decision of 15 December 1993

of the Special Supreme Court, the applicant could have re-introduced

himself his claims against the PNP. The applicant had the right to do so,

because the decisions of the Special Supreme Court have the effect of

legislation.

      The applicant submits that it amounts to lack of respect for the

Convention to argue that the decisions of the Special Supreme Court have

the effect of legislation, while the decisions of the European Court of

Human Rights do not. He further notes that, although the Philis judgment

of the Court was rendered on 27 August 1991, the royal decree 30/1956 was

not amended before 11 March 1994. He submits that the Government should

not be allowed to take advantage of their failure to comply with their

obligations under the Philis judgment for two and a half years.

      The Commission notes that, after the Court of Appeal refused to

accept the applicant's intervention in the proceedings, the Supreme Court

ruled that the Act of Parliament on the basis of which the royal decree

30/1956 had been promulgated did not envisage a system whereby the TEE

would have exclusive capacity to take legal proceedings for the recovery

of fees payable to engineers. The Commission further notes that the

applicant has not submitted anything which could refute the Government's

claim that, after the decision of 15 December 1993 of the Special Supreme

Court, he could have re-introduced his claims against the PNP by lodging

a new action himself. The Commission also notes that on 11 March 1994 the

royal decree 30/1956 was formally amended to give engineers the right to

institute proceedings themselves for the recovery of their fees. In these

circumstances, the Commission considers that it has not been established

that the applicant does not have direct access to a court for the

determination of his civil rights. It follows that no appearance of a

violation of the applicant's right of access to a court under Article 6

para. 1 (Art. 6-1) of the Convention is disclosed.

      The Commission considers, therefore, that this part of the

application must be rejected as manifestly ill-founded in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant complains that, despite his financial situation, he

had to be represented by counsel and was not allowed to represent himself

in his attempt to intervene in the proceedings. This amounts to a

violation of his right of access to court under Article 6 para. 1

(Art. 6-1) of the Convention as well.

      The Commission recalls that, in accordance with its case-law, a

tribunal which rejects a claim on procedural grounds is not determining

a dispute on civil rights and obligations (No. 10865/84, Dec. 12.5.86,

D.R. 47, p. 163). It also notes that the Court of Appeal rejected the

applicant's intervention because, insofar as it could be considered to

be an intervention in support of TEE, it did not fulfil the procedural

conditions of Articles 80 and 85 and, insofar as it could be considered

to be an intervention under Article 79, it was inadmissible because of

the res judicata effect of a previous court decision. The Commission,

therefore, considers that, when rejecting the applicant's intervention,

the Court of Appeal did not determine a dispute on civil rights and

obligations and that the relevant proceedings fall outside the scope of

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

      It follows that the Commission has no competence ratione materiae

to examine this part of the application which must be rejected in

accordance with Article 27 para. 2 (Art. 27-2) as being incompatible with

the provisions of the Convention.

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

Convention about the length of the proceedings instituted on his behalf

against the PNP.

      The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention also guarantees the right to hearing within a reasonable time

in the determination of one's civil rights and obligations.

      The Government submit that the public authorities were not

responsible for any of the delays in the proceedings. It was at the

applicant's insistence that the Court of Appeal decided to adjourn the

proceedings on 25 September 1990. Moreover, the applicant did not seek

to intervene in the proceedings before 8 October 1992. The delays which

occurred thereafter and until the rejection of the applicant's

intervention were all caused by the lawyers' strike.

      The applicant submits that, although the proceedings were instituted

by the TEE, they involved a determination of his civil rights under the

contract he had with the PNP. The applicant could not at the time sue

himself for the recovery of his fees. He further submits that all the

delays in the proceedings were imputable to State authorities.

      The Commission recalls that it has previously considered that the

same applicant could complain under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of proceedings instituted on his behalf by the

TEE, because he had intervened in the proceedings and the aim of the

proceedings was the recovery of the applicant's fees (No. 12750/87, Dec.

7.12.88, unpublished). The present case differs in that the applicant was

not allowed to intervene in the proceedings, having presented his request

for intervention in a manner which did not satisfy the requirements of

national law. Moreover, it has not been established that the proceedings

instituted by the TEE continue to constitute, after the decision of 15

December 1993 of the Special Supreme Court and the amendment of the royal

decree 30/1956, the only means for the recovery of the applicant's fees.

      Nevertheless, the Commission considers that it need not decide

whether Article 6 para. 1 (Art. 6-1) of the Convention applies in the

proceedings in question, because the applicant's complaint is in any

event manifestly ill-founded.

      The Commission notes that the proceedings began on

27 December 1989, when the TEE lodged the action on behalf of the

applicant, and that they are still pending.

      The Commission further notes that the action lodged by the TEE on

the applicant's behalf came for hearing on 25 September 1990, i.e. nine

months after the institution of the proceedings, a period which was

reasonable in the circumstances of the case. Then, on 18 October 1990 the

national court decided to adjourn the examination of the case, pending

delivery of the judgment of the European Court of Human Rights in the

applicant's case, a decision which was dictated by the commands of a

proper administration of justice.

           It is true that, after the delivery of the judgment of the

European Court of Human Rights on 27 August 1991, the TEE does not appear

to have taken any steps to expedite the proceedings. However, in

accordance with the Commission's case-law, in civil matters the exercise

of the right to a hearing within a reasonable time is dependent on the

diligence of the interested party (No. 7370/76, Dec. 28.2.77, D.R. 9, p.

95).

      The Commission must, therefore, also examine whether the applicant

himself used the means put at his disposal by national law to expedite

the proceedings (cf., No. 12750/87, supra). In this connection the

Commission notes that, although the Philis judgment of the European Court

was delivered on 27 August 1991, the applicant did not seek to intervene

in the proceedings before 8 October 1992. Moreover, his request to

intervene was not lodged in accordance with the requirements of national

law and had to be rejected by the court as inadmissible. The Commission

notes that, if the applicant had made a valid intervention at an earlier

stage in the proceedings, he would have had ample opportunity under

national law to contribute to the speedy conduct of the proceedings.

      In these circumstances, the Commission considers that, even assuming

that Article 6 para. 1 (Art. 6-1) of the Convention applies in the

proceedings in question, no appearance of a violation of the applicant's

right to a hearing within a reasonable time is disclosed (see, mutatis

mutandis, No. 12750/87, supra). It follows that this part of the

application must be rejected as manifestly ill-founded in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

4.    The applicant complains of a violation of Article 13 (Art. 13) of

the Convention in that he could not appeal against the decision of the

Court of Appeal of 19 July 1993, which allegedly refused him access to

court in the determination of his civil rights and obligations.

      The Commission recalls that Article 13 (Art. 13) of the Convention

guarantees the right to an effective remedy for everyone whose rights and

freedoms as set forth in the Convention are violated.

      In accordance, however, with the Commission's case-law, Article 6

para. 1 (Art. 6-1) of the Convention provides a more rigorous procedural

guarantee than Article 13 (Art. 13) of the Convention and, therefore,

operates as a lex specialis with regard to a civil right, to the

exclusion of Article 13 (Art. 13) of the Convention (No. 11949/86, Dec.

1.12.86, D.R. 51, p. 195). The Commission has already found that it has

not been established that the applicant lacks direct access to court for

the determination of his civil rights, as required by Article 6 para. 1

(Art. 6-1) of the Convention.

      It follows that no appearance of a violation of Article 13 (Art. 13)

is disclosed either and that this part of the application must be

rejected as manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

5.    The applicant also complains of a violation of Article 13 (Art. 13)

of the Convention in that he could not obtain redress for the delays in

the proceedings instituted on his behalf by the TEE.

      The Commission recalls  that, in accordance with its case-law, the

right to an effective remedy before a national authority can only be

claimed by someone who has arguable claim to be the victim of a violation

of a right recognised by the Convention (No. 11603/85, Dec. 20.1.87, D.R.

50, p. 228). This is not, however, the applicant's case.

      This part of the application must be, therefore, rejected s being

manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2)

of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES INADMISSIBLE the remainder of the application.

      Secretary                               Acting President

to the First Chamber                        of the First Chamber

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