Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15068/89

by Nicholas PHILIS

against Greece

The European Commission of Human Rights sitting in private

on 5 November 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

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. J. RAYMOND, Deputy 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 10 April 1989

by Nicholas PHILIS against Greece and registered on 31 May 1989 under

file No. 15068/89;

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 facts of the case as submitted by the applicant may be

summarised as follows.

1. The applicant is a Greek citizen born in 1937. He is a private

consultant engineer residing in Athens. Three previous applications

by the same applicant (Nos. 12750/87, 13780/88 and 14003/88) are

pending before the European Court of Human Rights. A further

application (No. 14712/88) was declared inadmissible on 4 April 1990.

In the period 1971-1978 a State institution, OEK (Organismos

Ergatikis Katoikias) entered into agreements with the applicant for

him to carry out design projects for and to supervise work on its

electro-mechanical installations. Following termination of the

agreements the applicant instituted proceedings against the OEK

claiming the remuneration for the supervision projects. To this end

he lodged 13 actions with the Athens Court (Protodikeio Athinon)

between 30 October 1978 and 28 December 1982. Actions against the OEK

were also brought by the Technical Chamber of Greece (Techniko

Epinelitirio tis Ellados, TEE) which is exclusively authorised to

claim design projects remuneration in substitution for the engineer.

The TEE lodged seven actions with the Athens Court in the period

between 16 December 1977 and 24 December 1982. Five of these actions

were brought before the Court of Cassation (Areios Pagos), after the

Athens Court and the Athens Court of Appeal (Efeteio) had given

decisions either accepting or rejecting the claims. On 13 April 1983,

while the above-mentioned actions were pending before the Court of

Cassation law 1346/83 came into force affecting OEK agreements with

engineeers. The provisions of that law were also to be applied to

cases pending before the courts. In its five decisions given between

17 January and 22 June 1984 the Court of Cassation applied the

provisions of the law 1346/83 and rejected the applicant's and the

TEE's claims since they were based on the old provisions which were no

longer in force.

Following the above decisions the applicant and the TEE

discontinued all the original court actions and re-introduced them

before the Court of Athens, basing the claims on the new law. Three

of the above actions were brought before the Athens Court of Appeal

after the Athens Court had given decisions either accepting or

rejecting the re-introduced claims. In its decisions 8671 of

15 October 1986, 9908 of 19 November 1986 and 10040 of 24 November 1986

the Court of Appeal found that the claims were prescribed under Greek

law since the period between the end of the financial year in which

the claims arose and could be brought before the courts and the date

of the introduction of the court actions exceeded five years. The

Court of Appeal found that the date of the introduction of the

original court actions should not be taken into consideration since

the original actions had a different legal basis and were not

identical with the actions it was seized with. The applicant appealed

on 15 April and 17 June 1987 against the above decisions of the Court

of Appeal.

On 5 January 1987 the applicant lodged with the Commission

application No. 12750/87 against Greece. He complained inter alia of

law 1346/83 alleging that the courts dealing with his cases had

to apply a law drafted and passed by his adversary and that the

provisions of the new law led to a deprivation of his property. He

invoked Articles 6 and 14 of the Convention and Article 1 of Protocol

No. 1. The applicant also complainead of the length of the

proceedings concerning his remuneration claims.

On 7 December 1988 the Commission declared application

No. 12750/87 admissible insofar as it concerned the applicant's right

of access to court and declared inadmissible, as incompatible ratione

temporis, the applicant's complaints concerning law 1346/83 and the

length of the initial court proceedings, and inadmissible as

manifestly ill-founded the complaints concerning the length of the

proceedings relating to the re-introduced claims.

On 7 March 1989 the Court of Cassation gave two judgments

(Nos. 213/1989 and 214/1989) confirming the decisions Nos. 8671 and

10040 of the Court of Appeal. A similar judgment (No. 450/1989)

concerning the decision No. 9908 was given on 1 May 1989.

2. In the context of the applicant's litigation with the OEK,

the TEE introduced on 13 April 1981 a further action claiming fees for

the applicant. This claim was based on law 716/77. On 30 November

1981 the Athens Court and subsequently, on 2 July 1987, the Court of

Appeal found in favour of the applicant. On 7 July 1987 the OEK

appealed against the judgment of the Court of Appeal.

In his above-mentioned application No. 12750/87 the applicant

complained of the length of these proceedings. His complaint was

declared inadmissible, as manifestly ill-founded, on 7 December 1988.

The Court of Cassation gave its judgment (No. 24/1989) on

17 January 1989 confirming the challenged judgment of the Athens Court

of Appeal.

3. While the above proceedings were taking place the applicant

lodged with the competent prosecutors criminal complaints against OEK

officials. His motions ended with discharge orders of the prosecutor

or of the competent court chambers. In the context of his application

No. 12750/87 the applicant complained of the above under Article 13

of the Convention. This complaint was declared inadmissible as

incompatible ratione materiae with the provisions of the Convention.

COMPLAINTS

1. The applicant complains that due to the "retroactive, unclear

and partial provisions of law 1346/83 as such" and to the effect of

these provisions on his cases his rights under the Convention have

been repeatedly violated. He notes that law 1346/83 was drafted by

officials of the Ministry of Labour, supervising authority of the OEK.

The applicant alleges

- that the courts dealing with his case cannot be regarded

as impartial, since they applied a law drafted by his

adversary;

- that the provisions of law 1346/83 affected his cases only

and were therefore indirect "recommendations" by his

adversary to the judiciary;

- that since their coming into force these provisions had the

effect of depriving him of his claims, which he considers

as possessions.

The applicant invokes Articles 6 and 14 of the Convention and

Article 1 of Protocol No. 1.

2. The applicant also complains that as a result of law 1346/83

he was denied access to a court which will determine his civil right

to remuneration. He invokes Article 6 para. 1 of the Convention.

3. The applicant further complains of the proceedings concerning

the actions re-introduced by the TEE and himself. He submits that

Greek law does not sufficiently guarantee the independence of the

judiciary. He refers in this respect to various statements of the

"Union of Judges and Prosecutors".

The applicant submits that a number of arguments he had

included in various writings to the courts have been rejected without

reasoning.

The applicant also complains of the length of these proceedings.

He invokes Articles 6 and 13 of the Convention.

4. The applicant further complains that he was denied access to

court with regard to his complaints concerning the alleged criminal

activities of OEK officials. He invokes Articles 6 and 13 of the

Convention.

5. Moreover, he submits that the alleged repeated violations of

his Convention rights constitute interferences with the exercise of

his right to respect for his private life and invokes Article 8 of the

Convention.

6. Finally, the applicant invokes Article 17 of the Convention,

alleging that the activities of the national authorities aimed at the

destruction of his Convention rights.

THE LAW

1. The applicant first complains under Articles 6 (Art. 6)

and 14 (Art. 14) of the Convention and Article 1 of Protocol No. 1

(P1-1) of the provisions of law 1346/83. He submits that the courts

which had to apply these provisions cannot be considered to be

impartial or independent, that due to the same provisions he was

deprived of his claims and that he suffered discrimination.

However, under Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention the Commission shall not deal with any application

submitted under Article 25 (Art. 25) which is substantially the same

as a matter which has already been examined by the Commission and

contains no relevant new information.

The Commission observes that in the context of his application

No. 12750/87 the applicant had already complained that the courts dealing

with his cases were not independent or impartial since they had to

apply a law drafted and passed by his adversary, that the new law led

to a deprivation of his property and that he has been a victim of

discrimination since the new legislative provisions mainly affected

his case. The Commission found that these complaints did not concern

the law as such but the effect it had on the applicant's then existing

claims on its coming into force on 13 April 1983. It declared these

complaints inadmissible as incompatible with the Convention because

they were outside the Commission's competence ratione temporis to

examine individual applications against Greece.

In the present application the applicant insists that his

complaint is directed against law 1346/83 "as such". He also refers

to the judgments Nos. 24/1989, 213/1989, 214/1989 and 450/1989 of the

Court of Cassation which were given after the Commission's decision on

the admissibility of Application 12750/87 and submits that these

judgments constitute "relevant new information" within the meaning of

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

The Commission however finds that neither the applicant's

insistence nor the judgments given by the Court of Cassation

constitute relevant new facts with regard to the complaints concerned

since they in no way affect the considerations which have led to the

previous application being declared inadmissible.

Therefore, this part of the application is essentially the

same as Applicatiton No. 12750/87 and must be rejected pursuant to

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

2. The applicant also alleges that the provisions of law 1346/83

deprived him of his right of access to a court which will determine his

civil right to remuneration and invokes Article 6 para. 1 (Art. 6-1)

of the Convention.

The Commission first notes that the applicant has lodged

several actions with the national courts after the coming into force

of law 1346/83. He does not show that the provisions of law 1346/83

prevented him from instituting proceedings with regard to his claims.

To the extent that the applicant's complaint can be understood

as challenging the prescription of his claims as a result of the

implementation of the provisions of law 1346/83, the Commission

observes the following.

The interpretation and implementation of national law and the

assessment of evidence is the task of domestic tribunals. It is not

for the Commission to decide whether the Greek courts committed errors

of fact or law when interpreting Greek legislation except when it

considers that such errors might have involved a possible violation of

the rights and freedoms set out in the Convention. Consequently, it

is not for the Commission to decide whether the domestic courts

erroneously declared the applicant's claims to be prescribed.

Moreover, the applicability of law 1346/83 in the applicant's cases

and the prescription of his claims are the direct consequences of the

entry into force of the said law on 13 April 1983 and of the judgments

given by the Court of Cassation in 1984 rejecting the applicant's

original court actions. These facts are outside the Commission's

competence ratione temporis, since according to the declaration by

Greece under Article 25 (Art. 25) of the Convention, this competence

extends only to applications whereby a person claims to be a victim

of a violation of the Convention in relation to matters occurring after

20 November 1985.

It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant also complains that Greek law does not

sufficiently guarantee the independence of the judiciary. Moreover he

complains that the court decisions rejecting his arguments did not

contain any reasoning. He invokes Articles 6 (Art. 6) and 13

(Art. 13) of the Convention.

The Commission however observes that the independence of the

judiciary is guaranteed under the Greek constitution. It also finds

that the court decisions complained of are sufficiently reasoned for

the purposes of Article 6 (Art. 6).

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 1 (Art. 27-1) of the

Convention.

4. The applicant also complains of the length of the proceedings

relating to his re-introduced claims. He invokes Articles 6 para. 1

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

The Commission observes that on 7 December 1988 it declared

inadmissible as manifestly ill-founded a complaint made by the

applicant with regard to the length of the same proceedings in the

context of Application No. 12750/87. It recalls that when a complaint

concerns the length of proceedings the time which has elapsed since

the examination of the first application in itself constitutes a new

fact (cf. No. 8233/78, Dec. 3.10.79, D.R. 17 p. 122).

However the Commission notes that the period which has elapsed

from the examination of the application No. 12750/87 up to the

termination of the proceedings concerned does not exceed five

months. It finds that this period does not affect the considerations

which led to the inadmissibility of the above complaints as manifestly

ill-founded.

It follows that this complaint is again manifestly ill-founded

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

5. The applicant also complains under Articles 6 (art. 6) and

13 (Art. 13) of the Convention that he was denied access to court with

regard to his complaints concerning the alleged criminal activities of

the OEK.

The Commission notes that the same complaint was made in the

context of Application No. 12750/87 and was declared inadmissible as

incompatible ratione materiae with the provisions of the Convention on

7 December 1988.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

6. Finally, the applicant alleges that he was the victim of

violations of Articles 8 (Art. 8) and 17 (Art. 17) of the Convention.

After examining the case, the Commission finds that it does

not disclose any appearance of a violation of the provisions invoked.

It follows that this part of the application is also

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

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PHILIS v. GREECE

PHILIS v. GREECE