Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14486/88

by P.

against Greece

The European Commission of Human Rights sitting in private

on 7 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 5 December 1988

by P. against Greece and registered on 19 December 1988 under file

No. 14486/88;

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

Rules of Procedure of the Commission;

Having regard to the writiten observations submitted by the

respondent Government on 11 June 1990;

Having regard to the observations in reply submitted by the

applicant on 25 June and 27 July 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties can be

summarised as follows.

The applicant is a Greek citizen resident in Athens. He is a

journalist and publisher. In the proceedings before the Commission the

applicant is represented by Mr. P. Bernitsas, a lawyer at the Athens Bar.

In 1964 the applicant entered into an agreement with the Greek

Radio and Television (Elliniki Radiofonia kai Tileorasi - ERT), a

public broadcasting enterprise which is under the control of the State

and is a legal entity under private law. The agreement provided that the

applicant would be employed as commentator on current economic issues.

In October 1981 the Board of Directors of the ERT informed the

applicant that it intended to restructure the information programmes

concerning issues on economic policy.

On 14 January 1982 the applicant was informed that he was

considered to have tacitly terminated his contract.

On 8 April 1982 the applicant lodged an action against the ERT

with the Athens First Instance Court (Monomeles Protodikeio) and

requested that the termination notice he received on 14 January 1982 be

declared null and void and that the defendant be obliged to re-employ

him and pay him 803,700 Drachmae for delayed salary.

On 23 September 1983 the Athens First Instance Court gave its

decision accepting the applicant's claims. It found in particular that

the applicant did not belong to the so-called "internal staff" of the

ERT and that he did not have to work in the premises of the ERT, but

that he was a kind of free-lance collaborator who, in order to execute

the work entrusted to him, ought to contact specialists on economic

issues and consult economic literature not available in the ERT

premises. The Court found that the reasons invoked by the ERT for the

termination of the agreement, namely the fact that the applicant did

not come to work at a fixed time during the two months preceding the

termination notice, could not constitute a violation of the agreement.

On 17 November 1983 the ERT appealed against the above

decision.

On 21 March 1984 the Athens Court of Appeal (Efeteio) quashed

the judgment of the Athens First Instance Court and rejected the

applicant's claims. It found that the applicant was obliged to come

to the ERT premises at short intervals and that he did not respect

this obligation during the two months preceding the termination

notice.

The applicant appealed (anairesi) to the Court of Cassation

(Areios Pagos) on 2 April 1984.

In his written pleadings he submitted, inter alia, that the

reasons invoked by the ERT for the termination of his contract, namely

the fact that he had not come to work at fixed hours, was only a

pretext. He noted that during the military regime he also had been

considered as having tacitly terminated his contract although the

reasons for his dismissal were obviously different. The applicant

concluded that he would leave to the discretion of the court, without

any comments, the appreciation of the attempt by his opponents to

introduce "new morals" into the social and judicial life of the country.

The Court of Cassation fixed the date of the hearing of the

case at 4 December 1984. However, the hearing was adjourned until

28 May 1985. On that date it was further adjourned because of the

general legislative elections. On 8 October 1985 the hearing was

again adjourned because of a lawyers' strike. It was finally held on

8 April 1986.

On 20 May 1986 the Court of Cassation annulled the decision of

the Court of Appeal. The Court found that the challenged decision did

not specify whether the applicant could be considered to belong to the

ordinary staff of the ERT. The Court referred the case to its fourth

chamber to decide on the merits of the applicant's action.

The fourth chamber of the Court of Cassation decided on

13 April 1987, after a hearing held on 13 February 1987, to examine the

applicant, the staff director of the ERT and two further witnesses.

The examination of the witnesses took place on 12 and 13 February,

and on 4 March 1988.

On 9 June 1988 the Court of Cassation gave its decision

rejecting the applicant's action.

COMPLAINTS

1. The applicant complains that the proceedings concerning his

action against the ERT were unreasonably lengthy and invokes Article 6

para. 1 of the Convention.

2. The applicant moreover alleges that he was dismissed for

political reasons and in particular for the ideas he expressed in his

comments on economic policy issues and finds that his dismissal

constitutes an interference with his right to freedom of expression.

Furthermore he claims that he was treated differently from his other

colleagues and alleges that he suffered discrimination.

The applicant invokes Article 10 of the Convention taken alone

and in conjunction with Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 December 1988 and

registered on 19 December 1988.

On 2 April 1990 the Commission decided in accordance with Rule

42 para. 2 (b) of its Rules of Procedure that notice should be given

to the Government of Greece of the application and that they be

invited to submit wrritten observations on the admissibility and

merits of the application.

The Government submitted these observations on 11 June 1990.

The applicant submitted observations in reply on 25 June and

27 July 1990.

THE LAW

1. The applicant complains of the length of the court proceedings

concerning his action against the ERT.

He invokes Article 6 para. 1 (Art. 6-1) of the Convention the

first sentence of which reads as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that any possible delays in the

proceedings complained of were essentially due to the conduct of the

parties. They also note that a certain delay was due to the general

elections of May 1985 and to a lawyers' strike later that year. These

are facts which cannot be imputed to the competent judicial

authorities. The Government also submit that the proceedings before

the Athens Court and the Court of Appeal were expeditious. The

proceedings before the Court of Cassation lasted more than three

years. In this respect they note that the Court of Cassation gave a

first judgment quashing the decision of the Court of Appeal and

examined subsequently the merits of the applicant's claim after having

heard several witnesses. Referring to the case-law of the European

Court of Human Rights, the Government conclude that in these

circumstances the length of the proceedings before the Court of

Cassation cannot be regarded as unreasonable.

The applicant emphasises the fact that his case was pending

before Greek courts for more than six years. He also notes that

according to Article 32 of Law 1545/1985 labour court proceedings

should be particularly expeditious.

The Commission considers that this part of the application

raises complex questions of fact and law which require an examination

of the merits. It follows that this part of the application cannot be

considered manifestly ill-founded and must, therefore, be declared

admissible, no other grounds for declaring it inadmissible having been

established.

2. The applicant also complains that he was dismissed for

political reasons and that this fact constitutes an unjustified

interference with his right to freedom of expression. He invokes

Article 10 (Art. 10) of the Convention taken alone and in conjunction

with Article 14 (Art. 14) of the Convention.

The Government submit that the applicant has not exhausted the

domestic remedies with regard to the above complaint. The applicant

contends that he submitted this complaint before the national courts

dealing with his case.

The Commission recalls that the mere fact that an applicant

has submitted his case to the various competent courts does not itself

constitute compliance with the provisions of Article 26 (Art. 26) of the

Convention, which requires that all domestic remedies must have been

exhausted according to the generally recognised rules of international

law. It is also required that the substance of the complaint made

before the Commission should have been raised during the proceedings

concerned.

In the present case the applicant has insinuated in the

domestsic proceedings that the termination of his contract was

motivated by political reasons. He did not, however, submit that his

dismissal infringed his right to freedom of expression although it was

possible for him to submit such complaint on the basis of Article 10

of the Convention, which directly applies in Greece, or on the basis

of equivalent guarantees under the Greek constitution. Therefore, he

did not raise, either in form or in substance, the complaint which he

now makes before the Commission. Moreover, an examination of the case

does not disclose the existence of any special circumstances which

might have absolved the applicant, according to the generally

recognised rules of international law, from raising his complaint in

the proceedings referred to.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and that this part

of the application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejuding the merits of the

case, the complaint regarding the length of the proceedings.

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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