Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19634/92

by UNION OF AIR HOSTESSES AND ATTENDANTS,

Heraklis EFSTATHIOU and Fotios KYRIAKOGLOU

against Greece

The European Commission of Human Rights sitting in private on

20 February 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

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 20 December 1990

by UNION OF AIR HOSTESSES and ATTENDANTS against Greece and registered

on 13 March 1992 under file No. 19634/92;

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

of Procedure of the Commission;

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

11 November 1993 and the observations in reply submitted by the

applicants on 25 February 1994 and 10 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

The present application has been introduced by the Union of Air

Hostesses and Attendants (hereinafter "the Union"), a trade union

registered under Greek law, its President Fotios Kyriakoglou and a

member, Heraklis Efstathiou, both Greek nationals. They are represented

before the Commission by Prof. G. Papadimitriou, an attorney-at-law

practising in Athens.

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

be summarised as follows:

1. The particular circumstances of the case

On 18 April 1989 the Union announced that its members were to

strike from 22 April until 8 May 1989.

On 24 April 1989, by Decree No Y302/1989 published in the

Official Gazette, the Prime Minister empowered the Minister of

Transport and Communications to "mobilise" (politiki epistratefsi) the

air hostess/attendant branch of employees of Olympic Airways. In the

preamble of this decision, reference was made to the need to avoid

disturbances in air traffic, which could result in jeopardising the

economic and social life of the country, as well as public health and

national interests. Pursuant to the decision of the Prime Minister, a

ministerial decree was issued on 25 April 1989 by the Minister of

Transport and Communications which required the "mobilisation" of the

said branch of employees from that date "until further orders".

On 25 April 1989 the second and third applicants were called, by

personal letters, to present themselves to work and assume their duties

in application of the above-mentioned mobilisation decree. It was

specified that if the applicants failed to comply with that order they

would have been sanctioned according to the relevant rules of domestic

law.

On 15 June 1989 the Union lodged an application for annulment

(aitisi akyroseos) with the Council of State (Symvoulio tis

Epikrateias), claiming that the aforementioned administrative acts were

contrary to the Greek Constitution, Articles 22 and 23 of which

guarantee the right to strike and prohibit any form of compulsory work.

The applicants also invoked Article 4 of the Convention.

On 17 June 1989 the Minister of Transport and Communications, by

a decision published in the Official Gazette, cancelled his previous

decree and lifted the mobilisation.

The hearing before the Council of State took place on 7 May 1991.

On 28 June 1991 the Council of State found that, given the fact

that the proclaimed strike would have lasted until 8 May 1989, the

effect of the challenged decisions expired ipso facto on 9 May 1989.

The Court found that on 15 June 1989, when the application for

annulment was lodged, the acts were already invalid. The Court stressed

that the meaning of the phrase "until further orders", which figured

in the ministerial decree, was that the competent minister could lift

the mobilisation before the strike ended and not that these

administrative acts remained in force after the end of the strike.

Given the fact that the relevant law only permits challenging of acts

still in force, the Council of State declared the application

inadmissible (judgment No 2099/1991).

2. Relevant domestic law and practice

a. Articles 22 and 23 of the Greek Constitution guarantee the right

to strike and prohibit any form of compulsory work. In particular,

Article 22 para. 3 of the Constitution provides as follows:

"Any form of compulsory work is prohibited. Special laws

shall determine the requisition of personal services in

case of war or mobilisation or to meet the defence needs of

the country or urgent social emergencies resulting from

disasters or liable to endanger public health, as well as

the offer of personal work to local government agencies to

satisfy local needs."

b. It ensues from Article 45 of Presidential Decree 18/1989 that an

application for annulment can only be lodged with the Council of State

against acts which are still in force.

c. Article 52 para. 2 of the Presidential Decree 18/1989 reads as

follows:

"A committee, established ad hoc by the Chairman of the

Council of State and composed of the Chairman or the member

of the Council who replaces him in accordance with the

applicable rules, the rapporteur of the case and another

member of the Council, may, at the request of the person

who filed the action for annulment, decide in chambers to

suspend the execution of the impugned act. Reasons must be

provided."

COMPLAINTS

1. The applicants allege that their mobilisation amounted to

compulsory labour in breach of Article 4 of the Convention.

2. Furthermore the applicants submit that the Council of State

avoided dealing with the genuine judicial impact of the administrative

acts in question, although they had come into force and had produced

legal effects on several levels. The applicants complained, therefore,

that the Council of State's judgment led to a denial of justice

contrary to Articles 6 para. 1 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1991 and registered

on 13 March 1992.

On 28 June 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

written observations on admissibility and merits.

The Government submitted their observations on 11 November 1993,

after one extension in the time-limit fixed for this purpose, and the

applicants' observations in reply were submitted on 25 February 1994,

after one extension in the time-limit fixed for this purpose.

On 7 December 1994 the Commission decided to invite the

applicants to submit further written observations on the admissibility

and merits of the application.

The applicants submitted their further observations on 10 January

1995.THE LAW

1. The applicants allege that their mobilisation amounted to

compulsory labour in breach of Article 4 (Art. 4) of the Convention.

2. The applicants also submit that the Council of State avoided

dealing with the genuine judicial impact of the administrative acts in

question, although they had come into force and had produced legal

effects on several levels. The applicants complain, therefore, that the

Council of State's judgment led to a denial of justice contrary to

Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention.

a. The Government first submit that the Union cannot claim to be a

victim of a violation of Article 4 (Art. 4) of the Convention.

The applicants disagree.

Article 25 (Art. 25) of the Convention provides inter alia

that :

"The Commission may receive petitions (...) from any person, non-

governmental organisation or group of individuals claiming to be

a victim of a violation (...) of one of the rights set forth in

this Convention (...)."

The Commission considers that the applicant Union meets the first

of these conditions, in that in Greek domestic law it is an association

of persons with common interests constituting a professional union. As

such, this union falls into one of the categories of applicants

mentioned in Article 25 (Art. 25) of the Convention, namely that of a

non-governmental organisation (see N° 9900/82, dec. 4.5.83, D.R. 32,

p. 261).

As regards the second condition, the Union considers itself to

be a victim, within the meaning of Article 25 (Art. 25), in that it was

compelled to compulsory labour.

In the Commission's view an applicant cannot claim to be the

victim of a breach of one of the rights or freedoms protected by the

Convention unless there is a sufficiently direct connection between the

applicant and the injury he maintains he suffered as a result of the

alleged breach (N° 10733/84, dec. 11.3.85, D.R. 41, p. 211).

It is clear, however, in the present case, that it is not the

applicant Union, as such, which is the victim of the alleged

infringment of the right guaranteed by Article 4 (Art. 4) of the

Convention. It is not the association itself, in fact, which could be

compelled to compulsory labour, but each of its members as individuals.

It follows that, as regards the alleged violation of Article 4

(Art. 4), the applicant Union cannot claim to be the victim of a

violation of the Convention.

This part of the application is therefore incompatible ratione

personae with the provisions of the Convention and must be rejected in

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

As regards the second and third applicants the Commission notes

that, given the fact that they had been personally invited to assume

their duties during the mobilisation, they can claim to be victims of

a violation of Article 4 (Art. 4) of the Convention.

b. Furthermore, the Government submit, in respect of Article 26

(Art. 26) of the Convention, that the applicants have not properly

exhausted domestic remedies. In this connection, they explain that by

appealing to the Council of State after the end of their strike, the

applicants made it impossible for the Council of State to decide on

their application.

The Government further submit that the applicants did not request

the Council of State to suspend the execution of the decision requiring

the mobilisation.

The applicants reply that they have lodged their application

while the attacked administrative acts were in force. They stress that

they could not possibly know when the mobilisation ended, since this

was a matter decided by the administration.

The applicants further submit that a request for the suspension

of the execution of an administrative act cannot, as a matter of

principle, be considered to be a remedy within the meaning of Article

26 (Art. 26) of the Convention.

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

Convention the Commission may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission further recalls that according to its constant

case-law there is no exhaustion of domestic remedies where a domestic

appeal is not admitted because of a procedural mistake (N° 10107/82,

dec. 12.7.84, D.R. 38, p. 90).

In the present case, the Commission notes that the applicants

failed on several occasions to seek the timely protection of the

judicial authorities: the applicants did not apply to the Council of

State for a suspension of the execution of the decision requiring the

mobilisation. Moreover, in its judgment of 28 June 1991, the Council

of State declared the applicants' application inadmissible because it

had been filed too late. This decision has been taken according to the

relevant domestic law and the Commission notes that the applicants

failed to establish why they did not file their application before the

end of their strike.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and that their

complaints under Articles 4 (Art. 4) (as regards the second and third

applicants), 6 para. 1 and 13 (Art. 6-1, 13) must be rejected under

Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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UNION OF AIR HOSTESSES AND ATTENDANTS, EFSTATHIOU AND KYRIAKOGLOU v. GREECE

UNION OF AIR HOSTESSES AND ATTENDANTS, EFSTATHIOU AND KYRIAKOGLOU v. GREECE

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