Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18996/91

by GARYFALLOU A.E.B.E.

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 24 October 1995, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

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 12 October 1991

by GARYFALLOU A.E.B.E. against Greece and registered on 17 October 1991

under file No. 18996/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

- the Commission's decision of 7 September 1993 to communicate the

application;

- the observations submitted by the respondent Government on

11 November 1993 and the observations in reply submitted by the

applicant company on 31 March 1994;

- the additional observations submitted by the respondent

Government on 18 April 1995 and the applicant company on

23 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a private company, registered in Kavala, Greece.

Before the Commission the applicant company is represented by

Mr. P. Bernitsas and Ms. D. Mirasgezi, attorneys-at-law practising in

Athens.

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

parties, can be summarised as follows:

A. Particular circumstances of the case

On 25 March 1986 the applicant company, an international

transporter, was ordered by the Deputy Minister of Commerce to pay a

fine of 500,000 drachmas for having violated certain rules concerning

import and export trade under law 599/1977.

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

the First Instance Administrative Court of Athens (Diikitiko

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

considered that the action (prosfigi) lodged by the applicant company

did not give rise to a dispute coming within the competence of the

lower administrative courts (diikitiki diafora usias); it was in

reality an action for annulment (akirotiki diafora) coming within the

competence of the Council of State (Simvulio tis Epikratias). As a

result, it decided to refer the case to the Council of State.

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

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

19 April 1988. After a series of adjournments, the case was heard on

8 January 1991.

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

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

any general principle or specific legal provision which provided for

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

been wrongly introduced before the lower administrative courts.

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

following the decision of the Plenary, held that the applicant

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

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

No. 1260/1991).

As more than sixty days had passed from the original imposition

of the fine, the applicant company could not lodge a fresh action for

annulment.

On 11 October 1991 law 1968/1991 was promulgated allowing in

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

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

administrative courts on a number of grounds, including actions which

the Council of State had refrained from examining for lack of

competence.

The applicant company re-introduced its action for annulment

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

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

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

B. Relevant domestic law

Law 1968/1991, promulgated on 11 October 1991, provides the

following:

Article 34 para. 1:

"When an administrative court considers itself incompetent

to hear either a dispute coming within the competence of

the lower administrative courts (diikitiki diafora usias)

or an action for annulment (akirotiki diafora) on the

ground that the dispute or action comes within the

competence of another administrative court or the Council

of State, it must refer the dispute or action to the

competent court. ......"

Article 40 para. 2:

"A remedy or a recourse which was rejected by the Council

of State or an administrative court as inadmissible on the

ground ..... that the lodging of the remedy or recourse had

been certified on the wrong document .... or that the

lawyer who had lodged the remedy or the recourse had not

been duly authorised to do so ..... may be re-introduced

within four months from the publication of the present law.

The same holds true for a remedy or a recourse which was

not examined by the Council or the administrative court for

lack of competence."

Since the promulgation of the above law, the Council of State has

delivered two decisions of principle concerning the constitutionality

of Article 40 para. 2.

In its decision No. 2000/1992 the Council of State, sitting in

plenary, examined an action for annulment which it had previously

declared inadmissible on the ground that the lawyer who had lodged it

had not been duly authorised to do so and which had been re-introduced

under Article 40 para. 2 of law 1968/1991. The Council of State noted

that Article 40 para. 2 allowed for the review of final court

decisions, without, however, amending the legal rules on the basis of

which these decisions had been issued. As a result, Article 40 para.

2 of law 1968/1991 could not be reconciled with the independence of the

judiciary and the principles of separation of powers and equality of

arms. The re-introduced action for annulment was rejected.

In its decision No. 1026/1993, however, the Council of State

considered that Article 40 para. 2 of law 1968/1991 was not

unconstitutional insofar as it allowed for the re-introduction of an

action which had been rejected on the ground that its lodging had been

certified on the wrong document. The Council noted that law 1968/1991

had amended the rules concerning the certification of the lodging of

an action for annulment.

COMPLAINTS

1. The applicant company initially complained under Article 6

para. 1 of the Convention of a violation of its right of access to a

court.

2. In a letter dated 16 January 1995 the applicant company also

complained under Article 6 para. 1 of its right to a hearing within a

reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 October 1991 and registered

on 17 October 1991.

On 7 September 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on admissibility and merits.

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

On 18 January 1994 the applicant company submitted its observations in

reply. These observations were received on 31 March 1994.

On 2 December 1994 the Commission decided to invite the parties

to a hearing on the admissibility and merits.

On 16 January 1995 the applicant company submitted the following:

"When the initial application was lodged it was clear that the

applicant was deprived of his right to be heard by a competent court.

Subsequently, ... law 1968/1991 granted the applicant the right to

apply once more for the same matter. The applicant lodged a new

recourse... Irrespective of the outcome of the judicial proceedings

before the Council of State the Greek Government failed to provide the

applicant with an effective remedy within a reasonable period of time

in violation of Article 6 of the Convention." In the light of the

above, the applicant company requested the Commission to clarify any

outstanding issues by means of a written procedure.

On 19 January 1995 the Commission decided to cancel the hearing

and to invite the parties to submit observations on the complaint

regarding the length of the proceedings.

Additional observations were submitted by the Government on

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

THE LAW

1. The applicant company complains under Article 6 para. 1

(Art. 6-1) of the Convention of a violation of its right of access to

a court.

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

the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a hearing within

a reasonable time.

The Government submit that the applicant company has not

exhausted domestic remedies. Its action, having been re-introduced

within the time-limit provided for under Article 40 para. 2 of law

1968/1991, remains pending. There are no reasons to assume, on the

basis of the present case-law, that the Council of State will consider

that the provision on the basis of which the action has been re-

introduced is unconstitutional in the circumstances of the case. The

case must be distinguished from the case in respect of which the

Council of State issued decision No. 2000/1992. Article 34 para. 1 of

law 1969/1991 made the referral of a case to the competent court

obligatory and thus the legal rule which allowed for the original

rejection of the applicant company's action has been amended. In this

respect the applicant company's situation is comparable to that of a

litigant whose action was originally rejected on the ground that its

lodging had been certified on the wrong document. The Council of State

in its decision No. 1260/1991 considered that Article 40 para. 2 of law

1968/1991, insofar as it allowed for the re-introduction of the latter

type of actions, was not unconstitutional.

The applicant company argues that the chances of success of its

re-introduced action appear, in the light of decision No. 2000/1992 of

the Council of State, extremely reduced.

The Commission notes the present state of the case-law of the

Council of State concerning the constitutionality of Article 40 para.

2 of law 1968/1991 and considers that it has not been established on

the basis of the submissions of the parties that the applicant

company's action is bound to fail because of the unconstitutionality

of the provision under which it has been re-introduced. Moreover, there

is no indication that the applicant company has ever considered

abandoning the action it has re-introduced on the ground that it has

no prospects of success.

In these circumstances, the Commission considers that the

applicant company's complaint concerning lack of access to a court

under Article 6 para. 1 (Art. 6-1) of the Convention is premature (see,

mutatis mutandis, No. 10148/82, Dec. 14.3.85, D.R. 42 p. 98) and must

be rejected as manifestly ill-founded under Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant company also complains under Article 6 para. 1

(Art. 6-1) of the Convention of a violation of its right to a hearing

within a reasonable time.

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

apply in the proceedings at issue. The fine imposed was not criminal

in character and the underlying legal relationship was of a public law

nature. In any event, the complaint was first submitted on 16 January

1995 and the Commission is prevented by the six-month rule from

examining the length of the first set of proceedings which were

concluded on 16 April 1991. As regards the second set of proceedings

which the applicant company instituted on 10 February 1992, the

applicant has not exhausted domestic remedies as these proceedings are

still pending. If the Commission were ever to examine the substance of

the complaint, the Government submit that the applicant company is

responsible for the delays because of its original failure to lodge its

action before the competent court.

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

applies in the proceedings at issue which involve a determination of

a criminal charge within the meaning of that provision. In accordance

with the case-law of the domestic courts, the imposition of an

administrative penalty involves the disapproval of the person

concerned. The period to be taken into consideration starts on 24

March 1986 and the proceedings have accordingly lasted more than nine

years.

The Commission recalls that, in accordance with the Court's and

its own case-law, an applicant may complain under Article 25 (Art. 25)

of the Convention of the length of proceedings before their conclusion

(see, by implication, Eur. Court H.R., Neumeister judgment of 27 June

1968, Series A, no. 8, p. 38, para. 7; Nonnis v. Italy, Comm. Report

15.1.91, para. 28, Eur. Court H.R., Series A no. 223-D, p. 41). As a

result, the Government's argument that the applicant company has not

exhausted domestic remedies because it complained to the Commission

before the proceedings were concluded must be rejected. As regards the

question arising from the Government's other argument that the

Commission is only competent to examine the length of the proceedings

which the applicant company instituted on 10 February 1992, the

Commission considers that it is related to the substance of the

applicant company's complaint concerning the length of the proceedings.

This complaint, however, raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. This part of the application cannot,

therefore, be regarded as inadmissible within the meaning of Article 27

(Art. 27) of the Convention.

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant company's complaint regarding the length of the

proceedings;

unanimously,

DECLDECLARES 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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GARYFALLOU A.E.B.E. v. GREECE

GARYFALLOU A.E.B.E. v. GREECE

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