Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20415/92

by Apostolos MATTHEOPOULOS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

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 26 March 1992 by

Apostolos MATTHEOPOULOS against Greece and registered on 3 August 1992

under file No. 20415/92;

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

of Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

24 November 1993 and the observations in reply submitted by the

applicant on 18 January 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1935 and living in

Karditsa.

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

parties, may be summarised as follows:

In 1952, the applicant was wounded by a shell abandoned by the

German occupying forces on the Greek mainland. The war relic exploded

after it had been removed by individuals amongst whom was the

applicant. As a result of the explosion the applicant became an invalid

and filed a demand for a war invalidity pension before the competent

authorities. On 24 June 1977 the General Accounts Office (Geniko

Logistirio tou Kratous) rejected the applicant's request. His petition

(enstasis) before the Committee of Review of Pension Acts (Epitropi

Eleghou Kanonismou Syndaxeon) was rejected on 2 June 1979. The

applicant's appeal (Efesis) before the Third Chamber of the Audit Court

(Elegtiko Synedrio) was rejected on 22 October 1982.

On 1 April 1983, the applicant submitted a fresh demand for a war

invalidity pension to the Accounts Office. He invoked Law (Nomos)

955/1977 according to which any person who either in time of war or in

time of peace has been wounded by an explosive of the German or Italian

forces or the communist guerilla is entitled to a war invalidity

pension.

The demand was rejected on 19 July 1984, on the ground that the

applicant was responsible for his invalidity due to his gross

negligence.

On 1 December 1984, the applicant lodged an appeal against this

decision before the Third Chamber of the Audit Court. The appeal was

registered on 15 July 1985. A hearing was held on 20 November 1987. The

Audit Court in its judgment (No. 376/1988) of 20 January 1988 rejected

the appeal. The Court found that there was no causal link between the

invalidity and the war situation and confirmed the challenged decision.

The applicant filed on 1 June 1988 a plea of nullity (anairesi)

against judgment No. 376/1988 before the Plenary of the Audit Court.

This plea was dismissed on 9 October 1991.

COMPLAINTS

1. The applicant complains that the Audit Court did not correctly

apply the law (Law 955/1977) in denying him his right to a war

invalidity pension. He alleges a violation of Article 6 para. 1 of the

Convention.

2. The applicant further complains of the length of proceedings. He

invokes Articles 3 and 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 March 1992 and registered

on 3 August 1992.

On 7 September 1993, the Commission decided to communicate to the

respondent Government the complaint concerning length of proceedings.

The Government submitted their observations on 24 November 1993

and the applicant's observations in reply were submitted on

18 January 1994.

THE LAW

1. The applicant complains that the Audit Court did not correctly

apply the law in denying him his right to a war invalidity pension.

The Commission recalls that it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set out

in the Convention. The Commission refers, on this point, to its

constant jurisprudence (see N° 7987/77, dec. 13.12.79, D.R. 18, p. 31).

It follows that this complaint must be rejected as being

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

(Art. 27-2) of the Convention.

2. The applicant complains under Articles 3 and 6 para. 1

(Art. 3, 6-1) of the Convention of the length of proceedings.

Article 3 (Art. 3) of the Convention provides as follows :

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3) (see N° 10142/82, dec. 8.7.85, D.R. 42, p. 86). The Commission

observes that the alleged excessive length of proceedings cannot be

regarded as inhuman or degrading treatment within the meaning of

Article 3 (Art. 3) of the Convention. Therefore, the Commission

considers that this complaint should be examined under Article 6 para.

1 (Art. 6-1) only.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows :

"In the determination of his civil rights and obligations (...)

everyone is entitled to a fair and public hearing within a

reasonable time by a (...) tribunal (...)."

The Government argues that Article 6 (Art. 6) is inapplicable to

the facts of the present case, the applicant's claim for a war

invalidity pension falling within the sphere of public law.

The applicant submits that Article 6 (Art. 6) is applicable to

the facts of his case.

The Commission recalls the case-law of the Court, according to

which "the notion of 'civil rights and obligations' cannot be

interpreted solely by reference to the domestic law of the respondent

State ... Only the character of the right at issue is relevant" (see

the König judgment of 28 June 1978, Series A N° 27, pp. 29-30,

paras. 88-89).

The Commission recalls moreover that, in several cases, State

intervention by means of a statute or delegated legislation has

nonetheless not prevented the Court from finding the right in issue to

have a private, and hence civil, character (see Eur. Court H.R.,

Schuler-Zgraggen judgment of 24 June 1993, Series A N° 263, p. 12,

para. 46). In the present case likewise, such intervention cannot

suffice to bring within the sphere of public law the right asserted by

the applicant.

The Commission notes that the applicant was claiming a right

flowing from specific rules laid down by the legislation in force. The

right in question was a personal, economic and individual right, a

factor that brought it close to the civil sphere.

The Commission considers therefore that Article 6 (Art. 6) is

applicable to the facts of the case.

The Government argues that the length of the proceedings was

reasonable in view of the complexity of the case and the applicant's

conduct.

The applicant submits that the length of proceedings cannot be

regarded as "reasonable" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of the reasonableness of the length of proceedings, namely the

complexity of the case, the applicant's conduct and that of the

competent authorities, and having regard to all the information in its

possession, that a thorough examination of this complaint is required

both as to the law and as to the facts.

For these reasons, the Commission, unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint about the length of proceedings ;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

Menu

MATTHEOPOULOS v. GREECE

MATTHEOPOULOS v. GREECE