Lexploria

FINAL

AS TO THE ADMISSIBILITY OF

Application No. 14003/88

by Nicholas PHILIS

against Greece

The European Commission of Human Rights sitting in private

on 11 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. C. ROZAKIS

L. LOUCAIDES

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 24 June 1989

by Nicholas Philis against Greece and registered on 5 July 1988 under

file No. 14003/88;

Having regard to

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 9 May 1989 to adjourn the

examination of the applicant's complaints concerning the civil

proceedings and declare the remainder of the application inadmissible;

- the written observations submitted by the respondent

Government on 27 July 1989;

- the applicant's letter of 8 August 1989 by which he maintains

the arguments put forward in his initial pleadings;

Having deliberated

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Greek citizen, born in 1937, and a

private consultant engineer, having had a technical bureau in Athens

since 1970. The applicant's two other applications concerning civil

proceedings in the context of litigation between him and the public

bodies Organismos Ergatikis Katoikias (Application No. 12750/87) and

Paidiko Nosokomeio Pentelis (Application No. 13780/88) are pending

before the Commission. The present application refers to civil

proceedings concerning litigation between the applicant and a certain

A.S., as well as criminal proceedings brought against the applicant.

In November 1980 A.S. assigned to the applicant a design

project concerning electromechanical installations in the town of

Amfilohia.

Following disagreement on the fee to be paid, the applicant

asked the Technical Chamber of Greece (TEE) on 30 June 1981 to sue

A.S. for the purpose of recovering the fee for the work he had carried

out. Pursuant to the provisions of the Royal Decree (Vassiliko

Diatagma) 30/1956 as modified by Royal Decree 188/1966, the TEE

is exclusively authorised to claim design project remuneration in

substitution for the engineer. By letters of 20 January 1982,

30 March 1983 and 13 January 1984 the applicant repeated his request.

On 16 December 1985 the TEE lodged an action against A.S. with

the Court of Athens (Monomeles Protodikeio Athinon). The applicant

did not join as co-plaintiff.

On 24 April 1986 the Court of Athens gave its decision accepting

a part of the TEE's claims.

The TEE and A.S. appealed against this decision. On 11 June

1987 the Athens Court of Appeal (Efeteio Athinon) found in favour of

the TEE and ordered A.S. to pay 139.336 Dr., plus the interest due on

that amount. However, a TEE claim concerning readjustment of the

applicant's remuneration in relation to inflation rates was rejected

because no specific amount was claimed in the action. This decision

became final on 1 September 1987.

By letter of 10 July 1987 the applicant complained to the TEE

that his case was not duly presented to the competent courts. He also

requested the TEE to take action for enforcement of the decision.

On 9 May 1988 the applicant complained again to the TEE.

Referring to his previous correspondence he claimed that the TEE

delayed the introduction of the action, that the calculation of the

fee claimed was erroneous, that the TEE failed to claim the specific

remuneration for the preparation of tenders and adjustment of

the amount of the fee in relation to inflation rates and that it

unreasonably delayed the enforcement procedure. He also requested

redress of the damage caused by negligence of the TEE.

On 6 July 1988 the TEE replied that in the applicant's case no

negligence could be imputed to the TEE and that in any event the

applicant had not shown that he had suffered any damage.

COMPLAINTS

1. The applicant complains that he has not been given a right to

a tribunal for his claims against A.S., since the TEE is exclusively

authorised to claim and receive the fee for design projects executed

by engineers. He points out that the amount claimed by the TEE was

erroneously calculated and that the TEE has failed to claim the

specific fee for the preparation of tenders. Moreover the applicant

complains of the fact that the TEE delayed the introduction of the

action against A.S. for four years and six months and submits that

this delay has increased the total length of his litigation with A.S.

which has exceeded seven years.

The applicant invokes Article 6 para. 1 of the Convention.

2. He also alleges that the TEE's conduct in the context of

this litigation deprived him of his remuneration claims. He invokes

Article 1 of Protocol No. 1 to the Convention, alleging that his

claims are "possessions" within the meaning of that provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 June and registered on

5 July 1988.

The Commission examined the question of the admissibility of

the application on 5 and 9 May 1989. It decided to bring the

application to the notice of the respondent Government and invite them

to submit written observations on the admissibility and merits of the

complaints concerning the civil proceedings. The Commission declared

inadmissible certain complaints by the applicant relating to criminal

proceedings against him (cf. partial decision of 9 May 1989).

The Government submitted their observations on 25 July 1989.

By letter of 8 August 1989, the applicant referred in reply to his

previous submissions and arguments.

THE LAW

1. The applicant complains that due to the provisions of Royal

Decree 30/1956 he did not have effective access to a court. He

invokes Article 6 para. 1 (Art. 6-1) of the Convention, which in its

first sentence provides:

"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 Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention secures to everyone the right of access to a court to

determine any claim relating to his civil rights (cf. Eur. Court H.R.,

Golder judgment of 21 January 1975, Series A No. 18, p. 18, para. 36).

The Government have submitted that Greek law secures to the

applicant sufficient access to a court. They submit in particular

that the applicant is entitled to lodge an "oblique action"

(plagiastiki agogi) with the competent courts in case the TEE refuses

to institute proceedings. He can, moreover, sue his debtors,

exercising the TEE's procedural rights pursuant to Articles 730 and

following of the Civil Code (Astikos Kodix) concerning voluntary

agency (dioikisi allotrion). Furthermore, the applicant can,

according to the provision of Royal Decree 30/1956, bring an ancillary

interpleader action (prostheti paremvasi) and join the TEE in the

proceedings as co-plaintiff or co-defendant. Finally, the Government

submit that the applicant can introduce an action claiming indemnity

for the damages caused by an eventual refusal by the TEE to institute

proceedings.

The applicant contends that neither the ancillary interpleader

action he is entitled to lodge, nor the compensation action against

the TEE can be considered as guaranteeing him sufficient access to the

court. He moreover submits that the possibilities of bringing an

"oblique action" or of taking action against his debtors as a

"voluntary agent" (dioikitis allotrion) of the TEE are purely

theoretical.

The Commission considers that the case raises an issue as to

whether the applicant has access to a court for the determination of

his civil claims in relation to the design project he carried out for

A.S. The questions of fact and law in this respect are of such a

complex nature that their determination requires an examination of the

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

considered manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. It must, therefore, be declared

admissible, no other ground for declaring it inadmissible having been

established.

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

concerning his litigation with AS. He alleges in particular that the

proceedings commenced on 30 June 1981 when he requested the TEE to

lodge an action against A.S. In his view the proceedings lasted more

than seven years. The applicant invokes Article 6 para. 1 (Art. 6-1)

of the Convention.

The Commission notes that the conduct of the TEE before the

introduction of the action cannot be imputed to the competent judicial

authorities. It observes that the proceedings, as such, began on 16

December 1985 and ended by the decision of the Athens Court of Appeal

on 11 June 1987. The total length of the proceedings before both the

Court of Athens and the Athens Court of Appeal does not exceed 18

months. Having regard to the complexity of the case, the Commission

finds that this period cannot be considered to be unreasonably

lengthy.

It follows that this part of the application is manifestly

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

Convention.

3. Finally, the applicant complains that due to the TEE's conduct

in the course of the proceedings, his claims were partially rejected.

He submits that the TEE's conduct affected his right to peaceful

enjoyment of his possessions. In this respect he alleges that his

claims should be regarded as "possessions" within the meaning of

Article 1 of Protocol No. 1 (P1-1) to the Convention.

The Commission has previously held that a "debt" can

constitute a "possession" for the creditor (No. 7742/76, Dec. 4.7.78,

D.R. 14 p. 146 and No. 7775/77, Dec. 5.10.78, D.R. 15 p. 143), but the

existence of such debt must have been established. In the present case

the part of the applicant's claims which has been rejected by the

domestic courts cannot be regarded as established and therefore it

cannot constitute a "possession" within the meaning of Article 1 of

Protocol No. 1 (P1-1).

It follows that this part of the application is manifestly

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

the Convention.

For these reasons, the Commission

DECLARES ADMISSIBLE without prejudging the merits, the

complaint regarding the access of the applicant to a court

with regard to his civil claims

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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PHLIS v. GREECE

PHLIS v. GREECE

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