Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18545/91

by Yüksel NURIOGLU

against Greece

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Ms. M.-T. SCHOEPFER, 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 9 July 1991 by

Yüksel NURIOGLU against Greece and registered on 18 July 1991 under

file No. 18545/91;

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

14 June 1994 and the observations in reply submitted by the

applicant on 26 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen of Turkish ethnic origin born

in 1952 in Xanthi, Greece and currently residing in Xanthi. In the

proceedings before the Commission he is represented by Professor Tekin

Akillioglu, a lawyer practising in Ankara, Turkey.

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

parties, may be summarised as follows:

The applicant obtained a degree in pharmaceutics from a Turkish

university on 3 September 1979 and a licence to work as a pharmacist

in Greece from the Greek Ministry of Health on 28 April 1982.

I. Proceedings relating to the applicant's application for a licence

to establish a pharmacy in Xanthi

Considering that he fulfilled all the requirements under the law,

the applicant claims to have applied to obtain a licence to establish

a pharmacy in Xanthi on 20 October 1982, 2 December 1985 and 23 June

1987. According to the applicant, the competent administrative

authority, in casu the Health Directorate of the Prefecture of Xanthi,

refused on all three occasions to register his applications, claimed

to have lost the documents submitted therewith and never replied.

On 18 January 1988 the applicant lodged a fourth application for

a licence to establish a pharmacy in Xanthi, which was served this time

on the Health Directorate of the Prefecture by a court bailiff.

Not having received a reply within three months, as he was

entitled to by law, the applicant had recourse to the Council of State

(Simvulio Epikratias) on 29 April 1988. The recourse of the applicant

was placed before the Fourth Division of the Council which requested

the case-file from the competent administrative authority and fixed a

hearing for 29 November 1988. The administration not having sent the

file, the hearing was postponed initially to 18 April 1989 and then to

13 February 1990 on the same ground.

On 10 January 1990 the applicant lodged a further application to

the Prefecture of Xanthi for a licence to establish a pharmacy.

On 15 January 1990 the Council renewed its request for the case-

file. On 24 January 1990 the Prefecture of Xanthi sent a file, which,

however, related to a subsequent application submitted by the applicant

on 10 January 1990. As a result, the hearing of 13 February 1990 was

postponed to 9 October 1990. On 18 April 1990 the Council of State

contacted the Prefecture of Xanthi once again with a view to obtaining

the correct case-file.

On 24 May 1990 the applicant withdrew the application he had

submitted to the Prefecture of Xanthi on 10 January 1990. On 9 October

1990 he informed the Council of State of his intention not to pursue

the action he had lodged against the tacit refusal of the Xanthi

Prefecture to grant his application of 18 January 1988.

II. Proceedings relating to the applicant's application for a licence

to establish a pharmacy in Komotini

On 25 May 1990 the applicant lodged an application for a licence

to establish a pharmacy in Komotini, a town near Xanthi, which was

served on the Health Directorate of the Prefecture of Rodopi by a court

bailiff.

Not having received a reply within three months, as he was

entitled to by law, the applicant again had recourse to the Council of

State on 28 September 1990. The recourse of the applicant was placed

before the Fourth Division of the Council which requested the case-file

from the competent administrative authority and fixed a hearing for 14

January 1992.

On 5 November 1991 the Ministry of Health requested the Health

Directorate of the Prefecture of Rodopi to send the case-file together

with its views on the applicant's case, which the Ministry would then

submit to the Council of State. On 10 December 1991 the Prefecture of

Rodopi informed the Ministry that it had not examined the applicant's

application because the latter had failed to submit a certified

photocopy of the document which recognised the equivalence of his

degree to a degree obtained from a Greek University, although he had

been orally informed that the uncertified photocopy of the document

submitted could not be taken into consideration. On 20 December 1991

the Ministry submitted the answer of the Prefecture to the Council of

State.

The hearing of 14 January 1992 was, nevertheless, adjourned to

9 June 1992, as the Council of State considered that it needed more

evidence, which it requested from the Prefecture of Rodopi on

25 May 1992. The evidence not having been submitted in time, the

hearing was again adjourned to 20 October 1992.

Faced with further delays in the submission of the evidence by

the administration, the Fourth Division of the Council of State decided

to postpone the hearing once more until 30 March 1993 and ordered the

Ministry of Health to send the evidence required within one month. On

18 February 1993 the Prefecture of Rodopi submitted the evidence

expressing the view that it had not replied to the applicant's

application because two of the documents he had submitted in

translation, namely his university degree and a certificate that he had

completed his studies, had not been certified by a Greek consular

authority.

On 21 September 1993 the Council of State decided in favour of

the applicant. The Council considered that the Prefecture could not

rely on the lack of certification of the documents mentioned in its

replies of 10 December 1991 and 18 February 1993 to refuse the

applicant's application. According to the applicant, the licence has

so far not been granted.

COMPLAINTS

1. The applicant complains under Article 3 in conjunction with

Article 14 of the Convention that he is subjected to degrading

treatment, not being able to establish a pharmacy because he is of

Turkish ethnic origin.

2. The applicant complains under Articles 6 and 13 of the Convention

of a violation of his rights to effective access to the courts and to

a hearing within a reasonable time. He submits in this connection that

the administration failed on several occasions to submit the case-file

to the Council of State, that the Council of State did not take the

necessary steps to obtain the case-file and that the proceedings were,

as a result, very lengthy.

3. The applicant finally complains under Article 1 of Protocol No.

1 that he is deprived of his livelihood, as he is not allowed to

practise his profession.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 July 1991 and registered on

18 July 1991.

On 2 March 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 written observations were submitted on 14 June

1994, after an extension of the time-limit fixed for that purpose. The

applicant replied on 26 August 1994.

THE LAW

1. The applicant complains under Article 3 in conjunction with

Article 14 (Art. 3+14) of the Convention that he is subjected to

degrading treatment, his applications to establish a pharmacy being

refused because of his Turkish ethnic origin.

The Government submit that the complaint is incompatible ratione

temporis in that the applicant's first application to establish a

pharmacy was submitted in 1982, i.e. at a time when Greece had not

recognised the Commission's competence to examine individual

applications against it. In the Government's opinion, although the

applicant's subsequent four applications were submitted after

20 November 1985, the date contained in Greece's declaration under

Article 25 (Art. 25) of the Convention, they do not bring the complaint

within the Commission's competence, as they refer to the initial

application of 1982. Alternatively, the Government argue that the

applicant has not exhausted domestic remedies. The Government

distinguish between the applicant's first three applications to

establish a pharmacy in Xanthi, his fourth application to establish a

pharmacy in the same city and his application to establish a pharmacy

in Komotini. As regards the first three applications the Government

submit that they were not submitted in the form prescribed by domestic

law, as they were not served by a court bailiff. Moreover, the

applicant did not appeal against the Prefecture's tacit refusal within

the time-limit prescribed by law. As regards the fourth application the

Government argue that the applicant did not exhaust domestic remedies

because he withdrew his appeal. As regards the application to establish

a pharmacy in Komotini, the Government submit that the applicant never

raised before the Council of State the complaints he is now raising

before the Commission.

The applicant submits that his complaints fall within the

Commission's competence ratione temporis, because they concern either

a continuous situation or a series of repeated violations. He also

claims that he has exhausted domestic remedies.

The Commission considers it unnecessary to examine whether the

facts complained of disclose a continuous violation, because it is in

any event competent ratione temporis to examine the applicant's

complaints concerning the refusal of his second, third, fourth and

fifth application which were all submitted after 20 November 1985, the

date figuring in Greece's declaration under Article 25 (Art. 25) of the

Convention. Neither does the Commission consider it necessary to

pronounce on the issue of exhaustion of domestic remedies. In fact, the

applicant has failed to substantiate his complaint that he was treated

in a discriminatory way due to his ethnic origin. Even assuming that

the attitude of the administrative authorities towards him may have

been experienced by the applicant as somewhat degrading, such treatment

remains below the level of severity required under Article 3 (Art. 3)

of the Convention (Eur. Court H.R., Costello-Roberts judgment of

25 March 1993, Series A no. 247, p. 59, para. 30).

As a result, even assuming that the applicant has exhausted

domestic remedies, 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.

2. The applicant complains under Articles 6 and 13 (Art. 6, 13) of

the Convention of a violation of his rights to effective access to the

courts and to a trial within a reasonable time.

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

Convention guarantees the right to a hearing within a reasonable time

in the determination of a person's civil rights and obligations and

that Article 13 (Art. 13) of the Convention guarantees the right to an

effective remedy for alleged violations of the rights and freedoms set

forth in the Convention.

The Government submit that the complaint is incompatible ratione

temporis because the court proceedings complained of resulted from the

authorities' refusal to satisfy an application which was originally

submitted in 1982. In their opinion, the complaint is also incompatible

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

does not apply to disputes concerning claims under public law, such as

the applicant's claim to a licence to open a pharmacy. The Government

further submit that the applicant has not exhausted domestic remedies.

He withdrew his appeal against the refusal of his fourth application

to establish a pharmacy in Xanthi. Moreover, he submitted his

application to the Commission before the conclusion of the proceedings

concerning his application to establish a pharmacy in Komotini and did

not refer at any stage of these proceedings to a violation of the

Convention. As regards the substance of the complaint concerning the

last set of court proceedings, the Government argue that the applicant

had access to an impartial and independent tribunal established by law

which examined his appeal within a reasonable time. The Council of

State cannot be held responsible for the delays in the proceedings

which were all caused by the applicant's opponent. Finally, the

Government argue that the applicant cannot claim to be a victim of a

violation of Article 6 (Art. 6) of the Convention, because the outcome

of the proceedings was favourable for him.

The applicant submits that his complaints fall within the

Commission's competence ratione temporis for the reasons referred to

above. He further argues that the court proceedings complained of

involved a determination of his civil right to establish a pharmacy.

In the applicant's submission, he was forced to withdraw his

application from the Prefecture of Xanthi as well as his Council of

State appeal because of the authorities' procrastination. The

applicant, moreover, argues that the Convention gives him the right to

complain of the length of the proceedings before their conclusion and

that there are no remedies under Greek law for alleged violations of

the right to a hearing within a reasonable time. He attributes the

delays in the proceedings to deliberate obstruction by the

administrative authorities and lack of diligence on the part of the

Council of State.

The Commission considers that the court proceedings complained

of fall within its competence ratione temporis, since they were

initiated after 20 November 1985, the date figuring in Greece's

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

The Commission further recalls that Article 26 (Art. 26) of the

Convention provides the following :

"The Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

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

The Commission notes that the applicant's appeal against the

tacit refusal of the Xanthi Prefecture to grant his application of

18 January 1988 to establish a pharmacy in that city was withdrawn on

9 October 1990. However, the present application was introduced on

9 July 1991. As a result, the applicant's complaints under Article 6

para. 1 (Art. 6-1) of the Convention concerning the proceedings

relating to his application for a licence to establish a pharmacy in

Xanthi were not submitted within the six months' period provided for

under Article 26 (Art. 26) of the Convention.

The Commission also considers that the applicant cannot claim to

be a victim of a violation of the right of effective access to the

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

connection with the second set of proceedings he instituted against the

tacit refusal of the Komotini Prefecture to grant him a licence to

establish a pharmacy, insofar as the outcome of these proceedings was

favourable to him (see, mutatis mutandis, No. 10888/84, Dec. 3.12.86,

D.R. 50 p. 90 and 15831/89, Dec. 25.2.91, D.R. 69 p. 317).

The Commission considers, however, that the same cannot be said

in respect of the alleged violation of the applicant's right under

Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a

reasonable time in the same set of proceedings. There is no indication

that the Council of State quashed the Prefecture's tacit refusal to

provide redress for the applicant's specific complaint, neither did the

Council of State acknowledge expressly the existence of the breach of

the right to a hearing within a reasonable time (see No. 8858/80,

Dec. 6.7.83, D.R. 33 p. 5).

The Commission further considers that the applicant's complaint

concerning the right to proceedings of a reasonable length cannot be

rejected for non-exhaustion of domestic remedies either. In accordance

with the Commission's case-law, 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) and in the

present case the Government have limited themselves to arguing non-

exhaustion without specifying what remedies were available to the

applicant. The fact that the application was lodged before the

conclusion of the proceedings, cannot amount to non-exhaustion, as the

Government argue (see, by implication, Eur. Court H.R., Neumeister

judgment of 27 June 1968, Series A, no. 8, p. 38, para. 7).

The Commission has finally examined the parties' remaining

observations and it considers that this part of the application 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.

As a result, the Commission considers that the applicant's

complaint concerning the length of the proceedings relating to his

application for a licence to establish a pharmacy in Komotini must be

declared admissible.

3. The applicant complains under Article 1 of Protocol No. 1

(P1-1) that he is deprived of his livelihood, as he is not allowed to

practise his profession.

The Government submit that the complaint must be rejected either

as incompatible ratione temporis or for non-exhaustion of domestic

remedies. The applicant disagrees.

The Commission considers that the particular complaint falls

within its competence ratione temporis. However, the Convention does

not guarantee the right to practise a particular profession. As a

result, this part of the application must be rejected as incompatible

ratione materiae with the provisions of the Convention under Article

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

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint concerning the length of the

proceedings relating to his application for a licence to

establish a pharmacy in Komotini;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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NURIOGLU v. GREECE

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