Lexploria

AS TO THE ADMISSIBILITY

Application No. 13780/88

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. L. 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 6 April 1988

by Nicholas Philis against Greece and registered on 20 April 1988

under file No. 13780/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the written observations of the respondent

Government of 18 May 1989 and the applicant's observations in reply of

26 June 1989;

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 is a

private consultant enginer 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

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

a certain A.S. (Application NO. 14003/88) are pending before the

Commission. The present application refers to civil proceedings

concerning litigation between the applicant and the public bodies

PIKPA (Patriotiko Idryma Koinonikis Pronoias kai Antilopseos) and PNP

(Paidiko Nosokomeio Pentelis).

On 30 October 1984 the State Institution PIKPA, supervised by

the Ministry of Health and Social Welfare, assigned to the applicant a

design project, concerning building installations of a hospital. A

similar project was assigned to the applicant on 23 February 1983 by

the hospital itself, which in the meantime had become a public law

institution PNP. The projects have been submitted to and later on

accepted by PNP.

On 27 July 1983 PNP informed the applicant of the fee to be

paid for the work he had carried out. The applicant considered that

the amount of his remuneration had been arbitrarily reduced and on

14 October 1983 requested PNP to modify the decision determining the

fee. Following disagreement, the applicant applied on 29 February 1984

to the competent department of the Ministry of Health and Social

Welfare.

As the request remained unanswered, the applicant introduced

on 1 August 1984 an action against both PNP and PIKPA before the

Athens' Court of Appeal (Efeteio Athinon).

By ministerial decision of 9 August 1984 the Minister of

Health and Social Welfare rejected the applicant's requests.

On 26 February 1985 the Court of Appeal invited the applicant

to submit evidence that he is inscribed as a consultant engineer in

the registry of public expenditure, i.e. the list from which

appointments are made for public works.

After a hearing held on 3 June 1986, the Court gave, on

15 July 1986, a partial decision rejecting the applicant's action as

far as PIKPA was concerned since all rights and obligations of this

body had been transferred to PNP. The Court requested the

parties to submit expert evidence concerning the work carried out by

the applicant.

The Court held another hearing on 22 September 1987 and gave

its final decision on 16 November 1987. It declared the applicant's

action inadmissible, since according to the provisions of the Royal

Decree 30/1956 an action for recovering design project's fees can only

be introduced by the Technical Chamber of Greece (TEE), which is

exclusively authorised to bring such an action in substitution for the

engineer.

COMPLAINTS

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

court with regard to his remuneration claims against the public law

bodies PIKPA and PNP. He invokes Article 6 para. 1 and Article 13 of

the Convention.

2. He moreover complains about the length of the proceedings

concerning his claims and submits in particular that these proceedings

began on 14 October 1983, when he applied to PNP to modify the

decision determining the amount of his fee and ended by the decision

of the competent Court of Appeal on 16 November 1987. Thus, the

proceedings have lasted more than four years.

3. The applicant further complains of the decision of the

Ministry of Health and Social Welfare. He submits that this authority

is not independent and impartial and that it did not deal with his

application in a public hearing.

4. Moreover, the applicant alleges that the decision of the

Ministry of Health and Social Welfare affected his claims, which he

considers as "possessions" within the meaning of Article 1 of Protocol

No. 1 to the Convention.

5. The applicant finally alleges that the Athens Court of Appeal

did not consider his complaints concerning the fairness of the

proceedings before the Ministry of Health and Social Welfare. He

complains that he has not been given an effective remedy before a

national authority in relation to his complaints regarding the

fairness of the administrative procedure before the Ministry and

invokes Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April and was registered on

20 April 1988. On 14 March 1989 the Commission 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

application.

The Government submitted their observations on 18 May 1989.

The applicant presented observations in reply on 26 June 1989.

THE LAW

1. The applicant complains, invoking Article 6 para. 1 (Art. 6-1)

and Article 13 (Art. 13) of the Convention that the provisions of

Royal Decree 30/1956 deprive him of effective access to a court with

regard to his remuneration claims against the public law bodies PIKPA

and PNP.

Article 6 para. 1 (Art. 6-1) of the Convention provides 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 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 the 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 the 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 against PIKPA and PNP. 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 grounds for declaring it

inadmissible having been established.

2. The applicant also complains about the length of the

proceedings he instituted against PIKPA and PNP and invokes

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

The rule requiring a hearing "within a reasonable time"

applies to all proceedings in which the court decides on civil rights

and obligations. Therefore the Commission has to examine whether this

provision applies to the proceedings complained of which ended with

the Athens Court of Appeal's decision declaring the applicant's action

inadmissible for lack of locus standi.

Furthermore, the Commission notes that the Government

submit that any possible delays in these proceedings were essentially

due to the conduct of the applicant and that the competent judicial

authorities cannot be held responsible for them. The applicant

contends that the length of the proceedings was unreasonable because

the Athens Court of Appeal took the point concerning his lack of

locus standi only three years after the commencement of the

proceedings.

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.

3. The applicant also complains of the decision of the Ministry of

Health and Social Welfare. He alleges that this body was not

impartial and that its decision constitutes an interference with his

case pending before the Athens Court of Appeal. He invokes Article 6

(Art. 6) of the Convention.

The Commission however considers that the decision of the

Ministry of Health and Social Welfare cannot be regarded as a

determination of the applicant's civil rights and obligations. The

procedure before the Ministry and the decision constitute the

commencement of the dispute which then had to be brought before the

competent judicial authorities.

In these circumstances the Commission finds that Article 6

(Art. 6) of the Convention does not apply to the administrative

procedure before the Ministry. It follows that this part of the

application is incompatible ratione materiae with the provisions of

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

4. The applicant alleges that the decision of the Ministry of

Health and Social Welfare affected his claims which he considers as

"possessions". He invokes Article 1 of Protocol No. 1 (P1-1) to the

Convention.

The Commission has found 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

applicant's claims cannot be regarded as established and therefore

they 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.

5. The applicant finally alleges that he has not been given an

effective remedy before a national authority in relation to his

complaint regarding the fairness of the administative procedure before

the Ministry of Health and Social Welfare. The applicant invokes

Article 13 in conjunction with Article 6 para. 1 (Art. 13+6-1) of the

Convention.

The Commission recalls that the complaint concerning the

fairness of the administrative procedure has been found incompatible

ratione materiae with the provisions of the Convention. In this

respect the Commission recalls that Article 13 (Art. 13) does not

guarantee any remedy when the main complaint is outside the scope of

the Convention (cf. No. 8782/79, Dec. 10.7.81, D.R. 25 p. 243). It

follows that this complaint under Article 13 (Art. 13) of the

Convention is incompatible ratione materiae with the provisions of the

Convention and must be rejected under Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he did not have access to a

court with regard to his civil claims and the complaint

concerning the length of the proceedings before the Athens

Court of Appeal

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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PHILIS v. GREECE

PHILIS v. GREECE

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