Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24960/94

by Theodoros PAPOULAKOS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mrs. J. LIDDY, Acting President

MM. C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 15 April 1994 by

Theodoros PAPOULAKOS against Greece and registered on 22 August 1994

under file No. 24960/94;

Having regard to the report 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 national, born in 1942 and residing in

Athens.

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

applicant, may be summarised as follows:

The applicant studied law in Italy and graduated in February

1982. In May 1982 he was admitted as an avocat stagiaire to the Bar of

Rome, acquiring thereby the right to plead before the single member

first instance pretore courts of the Rome judicial district. The

applicant has been so far unsuccessful in his repeated attempts to pass

the examinations of admission to the Bar of Rome.

On 18 August 1986 and 11 November 1987 the applicant submitted

two applications to the Athens Bar to be admitted as a member. The

applicant relied on Article 52 of the treaty establishing the European

Economic Community, which guarantees the freedom of establishment,

arguing that he had the right to practise law in Italy. Having received

no reply, the applicant challenged the Bar's failure to respond before

the Council of State by lodging two requests for the annulment of the

Bar's implicit rejection of his applications on 15 September 1986 and

6 April 1988.

On 12 April 1989 the Council of State requested the Athens Bar

to submit to it the applicant's case-file. On 4 May 1989 the Athens Bar

replied that no such file existed in its archives. On 19 June 1990 the

Council of State renewed its request submitting to the Athens Bar

copies of the applicant's applications of 18 August 1986 and

11 November 1987. Two reminders were sent by the Council to the Bar on

18 October 1990 and 23 March 1991.

Having received no reply, the Council of State issued on

31 October 1991 an interim decision (No. 3002/91) ordering the Athens

Bar to notify the Council whether the applicant had lodged the

applications of 18 August 1986 and 11 November 1987 and, if so, to

submit to the Council the complete case-file.

On 9 January 1992 the applicant lodged a criminal complaint with

the Public Prosecutor of Athens against the President of the Athens

Bar. On 5 February 1992 the Bar of Athens notified the Council of State

that it had received the applicant's applications of 18 August 1986 and

11 November 1987, failing, however, to submit the case-file.

On 16 April 1992 the Council of State held that the Bar had

violated its legal obligations by failing to reply to the applicant's

application of 11 November 1987 (decision No. 1524/92). Given the

direct effect of Article 52 of the EEC Treaty, the Council considered

that the Bar should have either accepted the applicant's request or

rejected it in a reasoned manner.

On 29 July 1992 the applicant lodged a new application with the

Athens Bar submitting a copy of the Council of State's decision

No. 1524/92. He also lodged an application to the Council of State

under a special procedure for the correction of textual mistakes in

court decisions. The applicant argued that there was a textual mistake

in that the decision of 16 April 1992 did not recognise expressis

verbis his right to practise law in Greece.

On 30 July 1992 and on 15 February 1993 the applicant lodged with

the Public Prosecutor criminal complaints against the representatives

of the Athens Bar for failure to comply with the decision of the

Council of State.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that

he did not have a hearing within a reasonable time in the determination

of his right to practise law in Greece under Article 52 of the Treaty

establishing the European Economic Community.

2. The applicant further complains under Article 6 of the Convention

of the failure of the Athens Bar to comply with the decision of the

Council of State of 16 April 1992.

3. The applicant complains under Article 6 of the Convention of the

failure of the public prosecutor to institute criminal proceedings

against the representatives of the Bar further to the criminal

complaints the applicant had lodged against them.

4. The applicant complains that the refusal of the Athens Bar to

admit him as a member amounts to inhuman, degrading and discriminatory

treatment contrary to Articles 3 and 14 of the Convention.

THE LAW

1. The applicant complains that he did not have a hearing within a

reasonable time in the determination of his right to practice law in

Greece under Article 52 of the Treaty establishing the European

Economic Community. He invokes in this connection Article 6

(Art. 6) of the Convention.

The Commission recalls that Article 6 (Art. 6) of the Convention

provides that in the determination of his civil rights and obligations

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law.

It further recalls that, in accordance with the case-law of the

Court, Article 6 para. 1 (Art. 6-1) of the Convention extends only to

disputes over civil rights which can be said, at least on arguable

grounds, to be recognised under domestic law; it does not in itself

guarantee any particular content for civil rights in the substantive

law of the Contracting States (Boden judgment of 27 October 1987,

Series A no. 125, p. 39, para. 28). The Commission notes that Community

law forms part of domestic law in those Contracting States, such as

Greece, which are members of the European Union.

The Commission notes, however, that the applicant is not a full

member of an Italian Bar but an avocat stagiaire. This entitles him to

appear before certain Italian courts. However, his full admission to

the Bar is subject to further assessment after a period of training.

The Commission considers that, in these circumstances, the

applicant could not claim on arguable grounds the right to be

automatically admitted to full practice at the Athens Bar on the basis

of Community law. As a result, Article 6 para. 1 (Art. 6-1) of the

Convention does not apply to the dispute arising out of the failure of

the Athens Bar to consider his application and this complaint must be

rejected as incompatible ratione materiae with the provisions of the

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

Convention.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention of the failure of the Athens Bar to comply with the decision

of the Council of State of 16 April 1992.

The Commission considers that the proceedings before the Council

of State which led to the decision of 16 April 1992 did not involve the

determination of a civil right under Article 6 (Art. 6) of the

Convention. As a result, this complaint must be rejected as

incompatible ratione materiae with the provisions of the Convention in

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

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

Convention of the failure of the public prosecutor to institute

criminal proceedings against the representatives of the Bar further to

the criminal complaints the applicant had lodged against them.

The Commission recalls that the right to institute criminal

proceedings against public officials is not guaranteed under the

Convention.

As a result, this complaint must be rejected as incompatible

ratione materiae with the provisions of the Convention in accordance

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

4. The applicant complains that the refusal of the Athens Bar to

admit him as a member amounts to inhuman, degrading and discriminatory

treatment contrary to Articles 3 and 14 (Art. 3, 14) of the Convention.

However, insofar as the matters complained of have been

substantiated and are within its competence, the Commission finds that

they do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or its Protocols.

This part of the application must be, therefore, rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary Acting President

to the First Chamber of the First Chamber

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

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PAPOULAKOS v. GREECE

PAPOULAKOS v. GREECE

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