RAIF v. GREECE
Doc ref: 21782/93 • ECHR ID: 001-2205
Document date: June 26, 1995
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- Cited paragraphs: 0
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AS TO THE ADMISSIBILITY OF
Application No. 21782/93
by Adnan RAIF
against Greece
The European Commission of Human Rights sitting in private on 26
June 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 March 1993 by Adnan
RAIF against Greece and registered on 30 April 1993 under file No.
21782/93;
Having regard to :
- the Commission's decision of 4 July 1994 to communicate the
application;
- the observations submitted by the respondent Government on 12
December 1994 and the observations in reply submitted by the
applicant on 9 March 1995;
- the reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen of Turkish ethnic origin, born in
1945 and resident in Xanthi.
The facts of the case, as they have been submitted by the parties,
may be summarised as follows:
A. The particular circumstances of the case
In 1967 the applicant started working as a teacher in the minority
primary school of Iliopetra in Thrace. In 1982 he moved to a minority
primary school in Xanthi. He always provided his services on the basis
of contracts governed by private law.
On 30 November 1983 the First Instance Civil Court (Monomeles
Protodikio) of Rodopi, by way of interim measures, ordered the "Union of
Turkish Teachers of Western Thrace" (hereafter the Union) to refrain from
using the words "Turk" and "Turkish", inter alia, in any material printed
by them (decision No. 206/83). On 12 December 1984 the Union was
dissolved by the First Instance Civil Court of Xanthi (decision No.
300/84).
On 1 November 1985 a letter was sent by the Union to the minority
schools of Thrace in which the Union was referred to by its full title
and a local village by its Turkish name. At the time the applicant was
a member of the Union's committee.
According to the applicant, the letter called for an increase in the
minority schools' subsidies. The applicant claims that the authorities
learned of its content by illegally intercepting the Union's
correspondence.
On 2 July 1986 the Minority Schools Office of the Prefecture of
Xanthi instituted disciplinary proceedings against the applicant, whom
it considered responsible for the distribution of the above-mentioned
letter.
On 27 December 1986 the Court of Appeal (Efetio) of Rodopi upheld
the decision of the First Instance Civil Court of Xanthi by which the
Union had been dissolved. The Union appealed in cassation. On a date
which has not been specified the Court of Cassation (Arios Pagos) issued
an interim decision which gave suspensive effect to the Union's appeal
(No. 361/87).
On 26 February 1987 the Regional Board for Elementary Education of
the Prefecture of Xanthi, having heard the applicant in person, decided
to impose on him the disciplinary penalty of one year's suspension from
teaching in both public and private schools. The applicant was punished
because "in his capacity as member of the committee of the Union of
Muslim Teachers of Western Thrace, he printed and distributed a document
.... in which he used the term 'Turkish teachers' .... and old Turkish
names of villages .... in breach of international agreements, the laws
of the Greek State and a recent .... decision of the Court of Appeal of
Thrace." The decision of the Regional Board was communicated to the
applicant by letter of 29 June 1987.
On 19 August 1987 the applicant challenged the decision of the
Regional Board of 26 February 1987, as well as the letter of 29 June
1987, before the Council of State. The applicant claimed that he could
not have committed the disciplinary offence because, first, he was not
authorised to sign documents issued by the Union, secondly, the
disciplinary authorities had not shown him the letter of 1 November 1985,
thirdly, the use of the term "Turkish teachers" was not in itself harmful
to the interests of the State and, fourthly, the charges were vague. He
further contended that he had been tried by an incompetent and not
properly constituted organ and that the decision against him was not
adequately reasoned. Finally, he argued that the disciplinary authorities
had acted ultra vires, their real aim being the disruption of the normal
functioning of the Union. The writ of appeal was filed by the applicant's
counsel.
On 17 October 1991 the Council of State held a hearing on the
applicant's appeal in which neither the applicant nor his counsel
appeared. The applicant claims that his counsel had been duly notified
of the date of the hearing but chose not to appear "in the interests of
his client". According to the applicant, this was a tactical move to
ensure that the disciplinary penalty would not appear in the applicant's
professional record. The applicant also claims that he learned about the
hearing from "the local inspector" (presumably the local school
inspector).
On 5 March 1992 the Council of State declared the applicant's appeal
inadmissible under Article 27 of the presidential decree 18/1989,
reasoning as follows: "The writ of appeal was filed by counsel. However,
the applicant's counsel did not appear at the hearing. Neither did the
applicant appear to declare that he approved of the writ, nor did he
submit before the hearing a notarial deed".
On 1 February 1993 there was a mobilisation in the minority schools
in Thrace against the introduction of new schoolbooks provided by the
Greek Ministry of Education. The applicant, who had in the meantime
become president of the Union, took an active part in the mobilisation.
On 3 February 1993 the decision of 5 March 1992 of the Council of
State was notified to the applicant.
On 2 February 1994, i.e. one day before the expiry of the period of
suspension, the Minority Schools Office of the Prefecture of Xanthi
informed the applicant that he could not resume his duties in the school
where he used to work, because there were no posts available. The Office
indicated that the applicant could, nevertheless, reapply should a
vacancy arise.
B. Relevant domestic law and court decisions
Article 27 of the presidential decree 18/1989, which codified all
legal provisions concerning the Council of State, reads as follows:
"1. The counsel's authority to act must be based on either a
notarial deed or an oral declaration at a court hearing.
........
2. It is assumed that counsel acted on the authority of a
litigant when filing the writ of appeal or taking various
steps at the pre-trial stage, if the litigant is represented
by counsel at the hearing, if the litigant declares in person
at the hearing that he approves of the filing of the writ, or
if a notarial deed is submitted. Otherwise, the appeal is
rejected as inadmissible .....
3. On the application of the litigant or a person purporting
to represent him, the court adjourns the hearing to another
date or fixes a reasonable time-limit to enable the litigant
to resolve any problems concerning his legal representation
which may have arisen ......".
On 15 February 1991 the Court of Cassation pronounced a judgment to
the effect that the use of the word "Turkish" in connection with the
Muslim minority of Thrace was capable per se of creating a climate of
hatred and disrupting public peace and constituted thus a criminal
offence under Article 192 of the Criminal Code.
COMPLAINTS
1. The applicant complains that the decision of the Council of State
was unfair in that it upheld a disciplinary penalty which violated his
minority rights. He also complains that the proceedings before the
Council of State were excessively lengthy. He invokes Articles 6 para.
1 and 14 of the Convention.
In his "supplementary observations" submitted on 27 July 1994 the
applicant also complains of a violation of Article 6 para. 1 of the
Convention in that the disciplinary proceedings before the Regional Board
for Elementary Education were unfair. In particular, he claims that he
was not given the opportunity to defend himself, that the Board was not
competent to hear the case and was illegally constituted, and that he was
convicted in the absence of any proof against him.
2. The applicant complains that he has been discriminated against on
the basis of language, national origin and association with a national
minority, because he was punished for having allegedly referred to a
union of "Turkish" teachers and for having used the Turkish name of a
village. He invokes Article 14 of the Convention and associates his
suspension with the mobilisation in February 1993 against the use of
schoolbooks which the Greek Ministry of Education decided to furnish
allegedly in breach of a series of international agreements concluded
between Greece and Turkey.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 March 1993 and registered on 30
April 1993.
On 4 July 1994 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 12 December 1994
after an extension of the time-limit fixed for this purpose. These
observations were received on 17 January 1995. On 9 March 1995 the
applicant submitted his observations in reply.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the unfairness of the disciplinary proceedings against him
and of the unfairness and length of the proceedings he instituted before
the Council of State. He also complains of discrimination, contrary to
Article 14 (Art. 14) of the Convention, on the basis of language,
national origin and association with a national minority.
Article 6 para. 1 (Art. 6-1) of the Convention ensures, inter alia,
a fair and public hearing within a reasonable time in the determination
of civil rights and obligations or a criminal charge. Article 14
(Art. 14) guarantees freedom from discrimination in the securement of
Convention rights and freedoms.
Underlying the applicant's complaints are elements of freedom of
expression and association guaranteed by Articles 10 and 11 (Art. 10, 11)
of the Convention respectively.
2. The respondent Government have raised a preliminary objection that
the application constitutes an abuse of the right of petition within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The Government argue that the real aim of the application is to
question the Greek Government's minority educational policy. The
Government point out that the bulk of the applicant's complaints concerns
the alleged breach of bilateral agreements between Greece and Turkey
concerning minority education which do not come within the Commission's
competence. The Government also refer to a complaint lodged by the
applicant before UNESCO concerning the enrolment in the minority high
schools in Thrace which received extensive coverage in the Turkish press
in breach of the confidentiality of the procedure.
The applicant denies that his application is abusive.
The Commission notes that the complaint raised by the applicant
before it is different from the complaint raised before UNESCO. It also
recalls that, in accordance with its case-law, the fact that an
application is inspired by motives of publicity and political propaganda,
even if established, would not of itself necessarily have the consequence
that the application is an abuse of the right of petition (No. 8317/78,
dec. 15.5.80, D.R. 20 p. 44).
The Commission finds, however, that it has not been demonstrated
that the present application has been inspired by motives of publicity
and political propaganda, and considers that the application does not
constitute an abuse of the right of petition within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. As regards the applicant's complaints under Articles 6 para. 1 and
14 (Art. 6-1, 14) of the Convention concerning the alleged unfairness of
the proceedings and discrimination, the Government argue that the
applicant has not exhausted domestic remedies. The same holds true, in
the Government's view, in respect of any issues which might arise under
Articles 10 and 11 (Art. 10, 11) of the Convention.
The Government point out that the applicant's appeal to the Council
of State was rejected because he failed to comply with the procedural
conditions imposed by national law. The Government further submit that,
in the absence of any Council of State jurisprudence which would have
proved that the applicant's appeal had no prospect of success, the
applicant cannot be absolved from exhausting the particular domestic
remedy.
The applicant argues that he has exhausted domestic remedies. Even
if he had appeared in person before the Council of State, he would not
have been allowed to take part in the proceedings. Moreover, his appeal
was bound to fail, given certain jurisprudence of the Court of Cassation
to the effect that the use of the word "Turkish" to designate a member
of the Muslim minority amounts to a criminal offence.
The Commission recalls that, in accordance with its case-law, the
obligation to exhaust domestic remedies contained in Article 26 (Art. 26)
of the Convention is limited to making "normal use" of those remedies
likely to be effective and adequate to remedy the matters of which the
applicant complains (No. 11208/84, Dec. 4.3.86, D.R. 46 p. 182). When a
doubt exists as to the effectiveness of a domestic remedy, that remedy
must be tried (No. 10148/82, Dec. 14.3.85, D.R. 42 p. 98). This
obligation under Article 26 (Art. 26) also requires the individual to
follow the procedural rules attached to the remedy. Failure to do so, or
a mistake in so doing, will vitiate the individual's compliance with the
obligation (No. 12794/87, Dec. 9.7.88, D.R. 57 p. 251).
The Commission notes that under Greek law administrative acts, such
as the decision of the Regional Board for Elementary Education of the
Prefecture of Xanthi imposing on the applicant the disciplinary penalty
at issue, can be challenged before the Council of State. Having had
recourse to the Council of State, the applicant now claims that his
appeal was deprived of all prospects of success. However, he has not been
able to cite any Council of State decisions which would justify such a
conclusion.
The applicant has referred to certain jurisprudence of the Court of
Cassation which held that the mere use of the word "Turkish" in
connection with the Muslim minority constitutes the criminal offence of
"disrupting public peace". However, the decisions of the Court of
Cassation, the highest criminal court of appeal, do not bind the Council
of State, the highest administrative court. In these circumstances, the
Commission finds no basis on which to conclude that the appeal before the
Council of State was not an effective remedy in respect of the
applicant's present complaints.
The Commission also notes that the applicant's appeal was rejected
because there was no indication that he had duly authorised the lawyer
who had filed the writ of appeal to represent him in the proceedings. In
principle, therefore, this procedural omission constitutes a failure to
exhaust domestic remedies.
The Commission does not disregard the fact that the applicant
attributes the rejection of his appeal to a tactical move by his counsel,
in respect of which the applicant claims not to have been consulted.
However, in accordance with the Commission's case-law, if a litigant is
represented by a lawyer, it is generally through the latter that he has
to exercise his procedural rights (No. 7138/75, Dec. 5.7.77, D.R. 9 p.
50) and he cannot complain under the Convention of the acts or omissions
of his lawyer (No. 9022/80, Dec. 13.7.83, D.R. 33 p. 21). Moreover, such
tactics cannot constitute special circumstances which would absolve the
applicant from the obligation imposed by Article 26 of the Convention.
In the light of the above considerations, the Commission finds that
the applicant has failed to exhaust domestic remedies in connection with
his complaints of unfair proceedings and discrimination and any issues
which might have arisen in connection with the right to freedom of
expression and association.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
4. As regards the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention concerning the length of the proceedings,
the Government contest the applicability of this provision to proceedings
before the Council of State. Although the applicant provided his services
on the basis of a private law contract, he was subject to the duties and
responsibilities of a civil servant. As a result, the disciplinary
proceedings against him could not give rise to a dispute over civil
rights and obligations. Neither could it be argued that he faced a
criminal charge, as this notion has been interpreted in the Commission's
case-law. Moreover, his failure to be represented at the hearing before
the Council of State prevented the court from determining the dispute.
The applicant submits that Article 6 para. 1 (Art. 6-1) of the
Convention is applicable. Although he is assimilated in certain respects
to a civil servant, he provides his services on the basis of a private
law contract and his salary is paid by the Turkish community. Moreover,
his suspension put his physical and social existence at risk and thus the
proceedings involved a determination of his civil rights and obligations.
The applicant further argues that the failure of his counsel to appear
at the hearing cannot provide an excuse for the delays in the proceedings
for which the judicial authorities were entirely responsible.
The Commission considers that the complaint 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 being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint concerning the length of the
proceedings,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)