Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12750/87

by Nicolas PHILIS

against Greece

The European Commission of Human Rights sitting in private

on 7 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 January 1987

by Nicholas Philis against Greece and registered on 24 February 1987

under file No. 12750/87;

Having regard to:

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

of the Commission;

- the written observations of the respondent Government of

31 May 1988 and the applicant's observations in reply contained in

his letters of 4 April 1988, 13 July 1988 and 4 August 1988;

- the parties' oral submissions at the hearing on 7 December

1988;

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 engineer, having had a technical bureau in Athens

since 1970.

In 1971 a State institution, OEK (Organismos Ergatikis

Katoikias), entrusted with housing labourers' families responsible to

the Greek Ministry of Labour, entered into agreements with the

applicant for him to carry out design projects for and to supervise

work on its electro-mechanical installations for the period 1971-1975

and subsequently entered into further similar agreements for the

period 1976 - 1978.

In March 1978 the OEK terminated its agreements with the

applicant and refused to pay him the remuneration provided for by law.

I.

The applicant instituted proceedings against the OEK before

the Court of Athens (Protodikeio Athinon), claiming the remuneration

for the supervision projects. To this end he lodged 13 actions with

the Court of Athens between 30 October 1978 and 23 December 1982 *.

Actions against the OEK were also brought by the Technical

Chamber of Greece (TEE) which, according to the Royal Decree

(Vassiliko Diatagma) 30/1956 modified by the Royal Decree 188/1966,

is exclusively authorised to claim design projects' remuneration in

substitution for the engineer. The TEE lodged seven actions with the

Court of Athens in the period between 16 December 1977 and 24 December

1982 *. The applicant was a third party in these proceedings.

The main litigious matter in these proceedings was to find out

what sort of contract existed between the applicant and the OEK, a

contract of service or a contract for services. In the first case the

applicant would have elaborated design projects for the OEK as an

employee and should therefore receive no remuneration since he had

been paid a salary. In the second case, his remuneration claims would

have been well-founded.

Five of these actions were brought before the Court of

Cassation (Areios Pagos), after the Court of Athens and the Athens

Court of Appeal (Efeteio Athinon) had given decisions either accepting

or rejecting the claims. At that stage of the proceedings the OEK

requested the cases to be adjourned in view of settlement

negotiations.

----------

* The dates of introduction of each action and the dates on

which decisions were given in these actions by the competent

Greek courts appear on pages 5 to 6 of this decision.

In the meantime a law introduced by the Minister of Labour was

passed by Parliament affecting OEK agreements with engineers, whose

provisions were also to be applied to cases pending before the

courts. According to these provisions (Article 29 para. 5 of the law

(Nomos) 1346/83) the remuneration due to engineers was not the

remuneration provided in the previous law but the agreed one. Article

29 para. 5 reads:

"Contracts for the execution of design, supervision and

control projects ... contracted between the OEK and

private engineers ... or engineers employed by the State

or moral persons of public law, prior to the day of

publication of the present law, are deemed to be in

accordance with the law notwithstanding any other

provisions of law and regardless of whether they are

contracts of service or contracts for services and

whether they are permanent or temporary contracts.

The above mentioned engineers ... are entitled to the

remuneration as agreed in the contract. In this

respect the provisions of the law BD 19/21.2.38 ...

ND 696/1974 and N 716/1977 do not apply.

The provisions of this paragraph apply also to cases

pending before all courts."

After the new law came into force, on 13 April 1983, the OEK

refused to settle the case.

The applicant considered the passing of the law to be an

interference "by the executive authorities - through the legislative

authorities" with his cases pending before the courts and requested

the Court of Cassation not to apply the new law.

The Court of Cassation rejected the applicant's complaints,

considering that the new law applied to all engineers and did not

therefore violate the principle of equality. It also stated that the

legislative authorities are not prevented from re-adjusting civil rights

by voting new civil laws, provided the principle of equality is not

violated. Consequently it rejected the appeals as ill-founded, since

the claims were based on the old law provisions which were no longer

in force.

Following these decisions the applicant and the TEE

discontinued all of the original court actions still pending before

the courts and re-introduced them before the Court of Athens basing

the claims on the new law (second cycle of proceedings). *

These actions, re-introduced in the period between 27 March

1984 and 27 May 1986, are still pending either before the Court of

Athens, the Athens Court of Appeal or the Court of Cassation.

----------

* The dates of introduction of each action and the dates on which

decisions were given on these actions by the competent Greek

courts appear on pages 5 to 6 of this decision.

On 15 November 1985 the Court of Athens gave two decisions

(Apofaseis 384/1985 and 385/1985) by which it accepted that

TEE's actions for declaratory judgments (anagnoristikes agoges) to

which it related were well-founded. However, two other decisions of

another chamber of the same court rejected the TEE's actions

(decisions - apofaseis 326/85 of 16 September 1985 and 274/86 of 27

May 1986). In these decisions the Court of Athens found that the

applicant's claims were prescribed under Greek law "since the period

between the end of the financial year in which the claim was created

and a respective action could be brought before courts and the date of

the introduction of the action exceeded five years".

The TEE had submitted that the claims were not prescribed,

since it had lodged its original actions with the competent court

within the five year time limit. However the Court found that these

original actions should not be taken into consideration since, having

a different legal basis, they were not identical with the actions it

was seized with and might not therefore interrupt the course of the

period of limitation.

Appeals (efeseis) against the above decisions of the Court of

Athens were pursued by the OEK and the applicant. The TEE refused to

pursue any remedies since it thought they did not offer any chance of

success. In its decisions 8671 of 15 October 1986, 9908 of 19

November 1986 and 10040 of 24 November 1986 the Athens Court of Appeal

confirmed that the claims had been prescribed.

The applicant appealed (anaireseis) on 15 April and 17 June

1987 against the decisions of the Athens Court of Appeal. He presented

15 to 18 appeal grounds invoking inter alia the provisions of the

Convention.

The Court of Cassation decided to hold a hearing on the

applicant's appeals on 28 April 1988. The judge-rapporteur presented

his reports on the cases on 13 April 1988. In the hearing of 28 April

1988 the applicant requested the Court of Cassation to adjourn

examination of the cases in order to permit him to reply to the

reports. The Court of Cassation adjourned until 1 November 1988. On

that date the Court held a hearing. No decision has so far been given.

The dates of introduction of each single action and the dates

on which decisions were given by the competent courts in the

proceedings referred to under this part of THE FACTS are indicated

hereafter by the letters i and d respectively. The actions introduced

by the applicant are indicated as a1 to a13, for the first cycle of

proceedings and A1 to A13 for the second cycle. The TEE's actions are

indicated as t1 to t7, for the first cycle, and as T1 to T7 for the

second cycle of proceedings.

First Cycle Second Cycle

Court Athens Court Court Athens Court

of Court of of of Court of of

Athens Appeal Cassation Athens Appeal Cassation

____________________________________________________________________________

a1 i: 30.10.78 18.05.79 3.11.81 A1 i: 26.02.86 / /

d: 31.03.79 29.01.81 3.02.84

____________________________________________________________________________

a2 i: 10.11.79 16.03.81 17.05.82 A2 i: 26.02.86

d: 31.05.80 30.10.81 22.06.84

____________________________________________________________________________

a3 i: 13.02.80 2.07.80 29.10.81 A3 i: 26.02.86

d: 19.05.80 17.06.81 17.01.84

____________________________________________________________________________

a4 i: 05.05.80 A4 i: 17.02.86

d:

____________________________________________________________________________

a5 i: 21.05.80 17.11.81 A5 i: 17.02.86

d: 11.05.81 25.10.82

____________________________________________________________________________

a6 i: 17.09.80 A6 i: 17.02.86

d:

____________________________________________________________________________

a7 i: 28.12.80 A7 i: 17.02.86

d: 31.08.81

____________________________________________________________________________

a8 i: 1.04.81 A8 i: 26.02.86

d:

____________________________________________________________________________

a9 i: 1.04.82 A9 i: 17.02.86

d:

____________________________________________________________________________

a10 i: 26.10.82 A10 i: 17.02.86

d:

____________________________________________________________________________

a11 i: 13.12.82 A11 i: 13.03.86

d:

____________________________________________________________________________

a12 i: 13.12.82 A12 i: 26.02.86

d:

____________________________________________________________________________

a13 i: 23.12.82 A13 i: 26.02.86

d:

First Cycle Second Cycle

Court Athens Court Court Athens Court

of Court of of of Court of of

Athens Appeal Cassation Athens Appeal Cassation

____________________________________________________________________________

t1 i: 23.12.77 2.11.78 3.09.79 T1 i: 26.02.86 7.10.86

d: 30.08.78 9.06.79 8.06.84 d: 27.05.86

____________________________________________________________________________

t2 i: 16.12.78 T2 i: 26.02.86 7.10.86

d: 31.08.81 d: 27.05.86

____________________________________________________________________________

t3 i: 12.01.80 4.07.80 10.02.82 T3 i: 26.02.86 7.10.86

d: 30.05.80 26.06.81 25.05.84 d: 27.05.86

____________________________________________________________________________

t4 i: 23.12.82 T4 i: 26.02.86 7.10.86

d: d: 27.05.86

____________________________________________________________________________

t5 i: 24.12.82 T5 i: 27.03.84 5.02.86 17.06.87

d: d: 15.11.85 19.11.86

____________________________________________________________________________

t6 i: 24.12.82 T6 i: 2.04.84 24.01.86 15.04.87

d: d: 16.09.85 15.10.86

____________________________________________________________________________

t7 i: 24.12.82 T7 i: 27.03.84 5.02.86 17.06.87

d: d: 15.11.85 24.11.86

____________________________________________________________________________

II.

On 13 April 1981 the TEE in substitution for the applicant

introduced an action against the OEK before the Court of Athens

requesting remuneration for design projects he had executed for the

OEK after 1977.

On 30 November 1981 the Court of Athens gave judgment in

favour of TEE and ordered the OEK to pay 898.697 Drachmas in respect

of the money claimed. On 23 January 1982 the OEK appealed against the

above decision. On 26 February 1987 the applicant joined as

respondent. The case was brought before the Athens Court of Appeal on

7 April 1987 (five years and three months after its introduction).

On 23 May 1987 the Court of Appeal gave its decision rejecting

the OEK's appeal. The Court of Appeal found that the applicant's

relations with the OEK after 1977 were not based on any contract for

services or contract of service. It found that the applicant had

executed design projects for the OEK after such projects had been

assigned to him as an independent engineer, within the meaning of

the law No. 716/1977 concerning projects assignment and execution.

Therefore the claims were founded on that law and the provisions of

the new law No. 1346/83 did not apply.

On 7 July 1987 the OEK appealed (anairesi) against the above

decision. The Court of Cassation held a hearing on that case on

11 October 1988. No decision has so far been given.

On 2 July 1987 the applicant requested the TEE to lodge a

subsidiary action with the purpose of capitalising the interest due on

his accepted claim since 8 April 1981 pursuant to Article 296 of the

Greek Civil Code (Astikos Kodix). On 24 September 1987 the TEE

informed the applicant that it did not intend to act in the way the

applicant wished.

III.

The applicant considered that, while the above civil

proceedings were pending, OEK officials had been engaged in

activities aimed at the extinction or limitation of his rights.

On 8 September 1979, 16 January and 18 April 1980 and

15 April and 19 June 1981 he lodged criminal complaints against OEK

officials with the Athens and Volos Prosecutors. The above motions

ended with discharge orders. The applicant's appeals against these

orders have been declared inadmissible by the competent Chamber of the

Court of Appeal (Symvoulio Efeton) for lack of the applicant's locus

standi.

On the applicant's motion of 7 October 1982 the Athens

Prosecutor ordered investigations for the purpose of examining whether

OEK officials should be charged with contempt of court for using

falsified documents in the civil proceedings. A discharge order

issued on 4 June 1984 was delivered to the applicant on 7 May 1985,

11 months after its issue.

The applicant's appeal against the above discharge order was

rejected as inadmissible by the Chamber of the Athens Court of

Appeal. The applicant appealed again before the Chamber of the Court

of Cassation, which on 5 March 1986 found in favour of the applicant

and sent the case back to the Chamber of the Athens Court of Appeal.

On 8 May 1986 the Chamber of the Athens Court of Appeal

rejected once more the applicant's appeal and the latter appealed

again before the Court of Cassation, requesting "legal protection" and

invoking, inter alia, Article 13 of the Convention.

In a decision of 25 July 1986 the Chamber of the Court of

Cassation again allowed the applicant's appeal and revoked the

decisions of the Chamber of the Athens Court of Appeal and the

discharge order of the Athens Prosecutor, deciding however at the same

time that the offence was prescribed under national law.

IV.

While these proceedings were taking place, the Prosecutor of

the Athens Court of Appeal charged the applicant with insulting the

authorities on the ground that a letter, sent by him to the Chamber of

the Athens Court of Appeal on 14 April 1986, stated that the

proceedings followed by the competent authorities in his various legal

actions "leave no doubt as to the existence of bias in favour of OEK

officials", and, that "the clear purpose of the delay in the

proceedings was to ensure that the crimes would be prescribed".

The applicant was summoned to appear before the Investigating

Judge on 15 October 1986 and again on 2 June 1987. On 12 October 1988

the applicant was sentenced to six months' imprisonment by the First

Instance Criminal Court of Athens (Trimeles Plimmeliodikeio

Athinon). The case is now pending before the Athens Court of Appeal.

COMPLAINTS

1. The applicant complains of the passing of the new law. He

alleges 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 and invokes Article 6 of the Convention. Moreover,

considering his remuneration claims as possessions within the meaning

of Article 1 of Protocol No. 1, the applicant alleges that the new law

led to a deprivation of his property. Finally, he alleges that he has

been a victim of discrimination, since the new legislative provisions

mainly affected his cases and submits that his name has been expressly

reported in the Parliament's records.

2. The applicant also complains that the length of the

proceedings exceeded the reasonable time required by Article 6 para. 1

of the Convention. He alleges that actions originally introduced

between 13 December 1977 and 24 December 1982 are still pending before

the courts.

3. Moreover, he alleges that he has not been given a right to a

tribunal, since the TEE has been compulsorily substituted for him with

regard to design project remuneration claims and invokes Article 6

para. 1 of the Convention.

4. He also complains of not being given any effective remedy

before a national authority with regard to OEK officials' criminal

activities and invokes Article 13 of the Convention.

5. Finally, the applicant complains of being charged with

insulting judicial authorities for having invoked his right to an

independent and impartial tribunal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 January 1987. On

12 December 1987 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

complaints concerning access to court and length of the proceedings

referred to under Part II of THE FACTS.

The Government submitted their observations on 31 May 1988.

The applicant's observations in reply are contained in his letters of

4 April, 13 July and 4 August 1988.

On 11 October 1988 the Commission decided to invite the

parties to appear before it at a hearing on the admissibility and

merits of the complaint concerning the applicant's access to a court.

The hearing was held on 7 December 1988. At the hearing the

parties were represented as follows:

The Government

Mr. C. Economides Head of the Legal Department of the

Ministry of Foreign Affairs, Agent

of the Government

Mr. V. Theofilou Lawyer, Adviser

Mrs. M. Vondicaki Telalian Secretary of the Legal Department of

the Ministry of Foreign Affairs, Adviser

The Applicant appeared in person.

SUMMARY OF THE OBSERVATIONS OF THE PARTIES

1. The Government

The Government observe in limine that proceedings referred

to in the application are still pending before the courts and that

expected decisions can be decisive for the applicant's complaints.

They conclude that the applicant has not complied with the

requirements of Article 26 of the Convention, e.g. that domestic

remedies are not exhausted at this stage of the proceedings.

On the applicant's access to court

The Government admit that according to the provisions of Royal

Decrees 30/1956 and 188/1966 the TEE is exclusively authorised to sue

the debtors of engineers claiming fees for design projects executed by

them. They submit, however, that engineers are not deprived of

guarantees against a possible refusal of the TEE to institute

proceedings in substitution for them.

They first observe that engineers have, pursuant to Article 72

of the Code of Civil Procedure, the possibility of suing directly the

TEE's debtors in case of negligence on the part of TEE by introducing

an "oblique action" (plagiastiki agogi). Article 72 of the Code of

Civil Procedure provides that a creditor may apply for judicial

protection exercising the rights of his debtor, in cases where the

latter does not exercise them, unless these rights are exclusively

personal. As to the effectiveness of such actions, the Government

refer to a decision given on 6 June 1988 by the Athens Court of Appeal

(apofasi 7892/1988). It would then have been possible for the

applicant to introduce such an action against the OEK asking that the

latter pay the fees claimed to the TEE.

The Government also make it clear that, pursuant to Article

914 of the Civil Code the applicant can introduce an action claiming

indemnity for the damages allegedly caused by the TEE's refusal to

institute proceedings.

The Government also submit that according to the provisions of

RD 30/1956 the applicant is entitled to introduce an ancillary

interpleader action (prostheti paremvasi) and join as co-plaintiff

or co-defendant. This interpleader action would furthermore be

"autonomous" (autotelis) pursuant to Article 83 of the Code of Civil

Procedure. In this respect the Government submit that the

interpleader engineer would have the rights of a full party in the

proceedings.

Finally, the Government note that the TEE's substitution for

the engineer system has been functioning successfully since its

institution and that the Court of Cassation has found this system in

accordance with the provisions of the Greek Constitution.

As to the length of the proceedings

referred to under Part II of the FACTS

The Government first observe that the proceedings concerned are

governed by the principle of the conduct of the litigation by the

parties. They moreover note that proceedings concerning engineers'

remuneration claims are dealt with by the courts according to the

provisions of Articles 677-681 of the Code of Civil Procedure.

These provisions institute a particular procedure comparable to that

applied to labour litigations and aim at safeguarding an expeditious

trial:

- Evidence must be submitted until the first hearing of the

case.

- Decisions should be taken, as far as possible, after a single

hearing.

- Witnesses are to be examined in open court during the hearing.

In the applicant's cases, however, the complexity of the

questions put to the courts and in particular the serious contestation

as regards the nature of the contractual relations between the

applicant and the OEK required a deep examination of the elements of

the cases and consequently prolonged the proceedings.

The Government note moreover that unjustified delays on the

part of a court when dealing with a case would expose the judges to

disciplinary penalties. Furthermore, a special action provided by

Article 99 of the Constitution and law 693/77 gives the party injured

due to the fault of the judiciary a right to sue the judge at fault

before a special court and claim reparation of the prejudice (agogi

kadodikias).

Finally, turning to the present case, the Government observe

that the applicant could have expedited the proceedings concerned by

joining as co-defendant before the Court of Appeal pursuant to the

provisions of RD 30/1956 and of the Code of Civil Procedure long

before 26 February 1987. He could then have asked the Court of Appeal

to fix a date for a hearing in the months following his intervention.

Having failed to proceed in that way, the applicant has contributed to

the prolongation of the appeal proceedings.

Conclusion

The Government conclude that the application should be

rejected for lack of compliance with the exhaustion of domestic

remedies requirement set forth in Article 26 of the Convention, or

as manifestly ill-founded.

2. The applicant

The applicant submits that the actions referred to in the

Government's observations as possible steps he could have taken in

order to ensure his right of access to a court or to a fair hearing

within a reasonable time may not be regarded as effective in the

present case. He moreover submits that the Court of Cassation has

declared on several occasions that the substitution system provided by

the Royal Decrees 30/1956 and 188/1966 is in accordance with the

constitution and that, therefore, as regards this complaint, he cannot

be reasonably considered as not having exhausted the domestic remedies

according to the generally recognised principles of international law

within the meaning of Article 26 of the Convention.

On access to a court

The applicant first submits that the substitution system

essentially deprives him of his right to secure the effective drawing

up of the actions, the lodging of the actions in time, and the legal

assistance of his own choosing.

The applicant further submits that the TEE refused on several

occasions to lodge subsidiary actions against the OEK. In particular

the TEE refused to lodge actions for the purpose of capitalising the

interest due on his claims pursuant to Article 296 of the Civil Code.

This refusal concerned the actions referred to as T5, T6 and T7 and

the action referred to under Part II of THE FACTS.

TEE also refused to lodge subsidiary actions for the purpose

of readjustment of his claims in relation to inflation rates pursuant

to Article 12 para. 10 of Royal Decree 13/1938 and Article 105 para. 4

of Presidential Decree 696/1974 in conjunction with the jurisprudence

of the Court of Cassation (decision 443/81). This refusal concerned

actions T5, T6, T7 and the action referred to under Part II of THE

FACTS.

The TEE also converted actions T1, T2, T3, T4, T5 and T7 to

actions for declaratory judgments (anagnoristikes agoges). The

applicant observes in this respect that in case he wins these

proceedings, he will be obliged to re-introduce the same action before

the courts in order to obtain a title for the enforcement of the

courts' decisions.

The applicant contends, moreover, that the interpleader

action he is entitled to introduce before the courts is not

"autonomous" and refers to the case-law of the Court of Cassation

(Decision 407/79). He submits that the "oblique action" is only

theoretically available in his cases and observes that compensation

actions against the TEE would lead to a new cycle of proceedings. The

applicant concludes that the procedural steps or remedies indicated by

the Government cannot be considered as securing for him effective and

sufficient access to a court.

As to the length of the proceedings referred to

under Part II of THE FACTS

The applicant submits that he did not need to become a party in

the appeal proceedings because in his view they concerned a first

instance decision which had been anyway revoked and corrected by the

Court of Athens in a subsequent decision. He found therefore that he

had no interest in joining as a third party.

THE LAW

1. The applicant first complains of the passing of the new law

which entered into force on 13 April 1983. He alleges that he

suffered discrimination by the interference of the legislative

authorities with his cases pending before the competent courts and

that his property was seriously affected by these new law provisions.

He invokes Article 6 para. 1 (Art. 6-1) and Article 14 (Art. 14) of

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

The Commission observes that according to the declaration by

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

Commission under that article extends only to applications whereby a

person claims to be a victim of a violation of the Convention in

relation to matters occurring after 19 November 1985. The Commission

notes in this respect that this complaint does not relate to the new

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

remuneration claims on its coming into force on 13 April 1983. That

having taken place before the 19 November 1985, it follows that this

part of the application is outside the competence of the Commission

ratione temporis and must be declared inadmissible in accordance

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

2. The applicant also complains about the length of the

proceedings and invokes Article 6 para. 1 (Art. 6-1) of the

Convention, which guarantees a fair hearing within a reasonable time

in the determination of civil rights and obligations.

The Commission observes that the applicant's and the TEE's

actions initially introduced on 23 December 1977 (t1), 30 October 1978

(a1), 10 November 1979 (a2), 12 January 1980 (t3) and 13 February 1980

(a3) have been terminated by final judgments of the Court of Cassation

on 8 June 1984, 3 February 1984, 22 June 1984, 25 May 1984 and

17 January 1984 respectively. It also observes that the TEE's actions

introduced on 24 December 1982 (t5, t6, t7) have been terminated by

TEE withdrawals on 27 March and 2 April 1984. These proceedings began

and ended before 19 November 1985 and it follows that the complaint

concerning their length is excluded from the competence of the

Commission ratione temporis for the reasons already stated above.

3. With regard to the other actions of the first cycle of

proceedings which were discontinued by the applicant or the TEE, the

Commission observes that the respective proceedings have been

terminated by the applicant's or the TEE's withdrawals on 17 February

(a4, a5, a6, a7, a9, a10), 26 February (a8, a12, a13, t2, t4) and

13 March 1986 (a11).

The Commission recalls that according to Article 26 (Art. 26)

of the Convention it "may only deal with the matter ... within a

period of six months from the date on which the final decision was

taken".

In the present case the proceedings of which the applicant

complains ended on 17, 26 February and 13 March 1986, which dates fall

to be regarded as the dates of final decisions in the respective

proceedings within the meaning of Article 26 (Art. 26). However, the

application was submitted to the Commission on 5 January 1987, that

is more than six months after the end of the above proceedings.

Furthermore, an examination of the case does not disclose the existence

of any special circumstances which might have interrupted or

suspended the running of that period.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

4. With regard to the proceedings instituted by the TEE on

13 April 1981 (cf. Part II of THE FACTS) and with regard to the second

cycle of the proceedings concerning the TEE's actions T5 and T7, which

commenced on 27 March 1984, and T6, which commenced on 2 April 1984,

the Commission observes that these proceedings are now pending before

the Court of Cassation. As far as the length of these proceedings is

concerned, the Commission observes that the period it is competent

ratione temporis to consider begins on 20 November 1985, when

recognition by Greece of the right of individual petition took effect.

However in assessing the reasonableness of the time that elapsed after

20 November 1985 account must be taken of the then state of

proceedings (cf. Eur. Court of H.R., Foti and others judgment of

10 December 1982, Series A no. 56; pp. 18-19, para. 53)

The proceedings concerning the applicant's actions A1 to A13

and the TEE's actions T1 to T4 commenced after 20 November 1985 and

fall therefore entirely within the Commission's competence ratione

temporis.

The Commission observes furthermore that the applicant is now

a third party in the proceedings instituted by the TEE. Moreover, it

appears from the parties' submissions that it is his own right to

remuneration which is to be determined by the competent courts. The

Commission finds, therefore, that the applicant can complain under

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

proceedings.

The respondent Government have submitted that the actions

concerned by the proceedings the applicant complains of are still

pending before the Greek courts and that therefore the applicant has

not complied with the requirement of exhaustion of domestic remedies

set forth in Article 26 (Art. 26) of the Convention. The Commission

notes, however, that the Government have not shown in what way the

decisions which will be given by the Greek courts can effectively

remedy the situation complained of rather than prolonging the

allegedly already lengthy proceedings.

In order to determine whether the length of these proceedings

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

1 (Art. 6-1) of the Convention, the Commission refers to the

particular circumstances of the case. It has in particular regard to

the criteria put forward by the jurisprudence of the Court (cf. for

example Eur. Court H.R., König judgment of 28 June 1978, Series A no.

27, p. 34, para. 99; Eckle judgment of 15 July 1982, Series A no. 51,

p. 35 para. 80), i.e. the complexity of the case, the conduct of the

applicant and the conduct of the judicial authorities.

The Commission has first examined the proceedings instituted

by the TEE's action of 13 April 1981. It finds that the only point of

concern appears with regard to the proceedings before the Athens Court

of Appeal which have lasted more than five years.

It appears however clearly from the parties' submissions that

the case was adjourned upon request of the parties after notice of

appeal was given. The proceedings were taken up only five years later

at the request of the TEE. Only then did the applicant join as a

third party.

The Commission recalls that the fact that the proceedings

concerned are governed by the principle of the conduct of the

litigation by the parties does not dispense the judicial authorities

from ensuring the trial of the action expeditiously as required by

Article 6 (Art. 6) (Eur. Court H.R. Buchholz judgment of 6 May 1981,

Series A No. 42 p. 16 para. 50). However, the Government have

submitted that the applicant could have joined as a third party

immediately after the introduction of the OEK's appeal and request the

court to fix a hearing in the following months. The applicant does

not contest that he had such a possibility. He submits however that

he had no interest in joining.

The Commission recalls that in civil matters the exercise of

the right to a fair hearing within a reasonable time is dependent on

the diligence of the interested party (No. 7370/76, Dec. 28.2.7, D.R.

9 p. 95). Although the applicant was only involved as a third party

in the proceedings concerned since 26 February 1987, it appears

clearly from his submissions that if he had joined earlier he could

have contributed to an expeditious trial of the action.

In these circumstances the Commission finds that the

applicant's conduct may be regarded as the most important factor of

the delay.

It follows that this part of the application insofar as it

relates to the proceedings instituted on 13 April 1981 is manifestly

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

the Convention.

5. With regard to the length of proceedings concerning the

actions T1 to T7 and A1 to A13 the Commission notes the following:

- On the T1 to T7 actions first instance proceedings barely

exceeded 7 months.

- On the T5, T6 and T7 actions appeal proceedings before the

Court of Appeal did not exceed 9 months. The Court of Cassation was

seized on 15 April and 17 June 1987 and held a hearing on these

actions on 28 April 1988. The case was then adjourned upon the

applicant's request until 1 November 1988. The applicant moreover

submits that he has presented 13 to 15 appeal grounds.

- The T1 to T4 actions have been pending before the Court of

Appeal since 7 October 1986. The A1 to A13 actions have been pending

before the Court of Athens since 17 or 26 February 1986 (A11 since 13

March 1986). According to the applicant's submissions these courts

await the decision of the Court of Cassation before taking up these

cases.

In general, the period to be considered by the Commission in

respect of these proceedings barely exceeds 3 years. Moreover, these

proceedings undoubtedly present a certain degree of complexity.

In these circumstances the Commission finds that no excessive

delays - and in particular no unjustified inactive periods imputable

to the judicial authorities - can be found with regard to these

proceedings.

It follows that this part of the application insofar as it

relates to the actions T1 to T7 and A1 to A13 is also manifestly

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

the Convention.

6. The applicant complains that he has been denied the right of

access to a court in respect of his design project remuneration

claims. He complains in particular that the TEE deprived him of his

right of access to a court by refusing to introduce an action with the

purpose of capitalising the interests of his accepted claim, that it

refused to request adjustment of the amount claimed in relation to

inflation rates and, finally, that in the second cycle of proceedings

it only instituted proceedings for declaratory judgments.

The Commission examined this complaint under Article 6 para.

1 (Art. 6-1) of the Convention, in the light of the jurisprudence of

the European Court of Human Rights. It recalls in particular the

following:

"The right of access constitutes an element which is

inherent in the right stated by Article 6 para. 1 (Art. 6-1).

This is not an extensive interpretation forcing new obligations

on the Contracting States; it is based on the very terms of

the first sentence of Article 6 para. 1 (Art. 6-1) read in its

context and having regard to the object and purpose of the

Convention, a lawmaking treaty and to general principles of

law. (...) Article 6 para. 1 (Art. 6-1) secures to everyone the

right to have any claim relating to his civil rights and

obligations brought before a court or tribunal. In this way

the Article embodies the "right to a court", of which the

right of access, that is the right to institute proceedings

before courts in civil matters, constitutes one aspect only.

To this are added the guarantees laid down by Article 6

para. 1 as regards both the organisation and composition of

the court, and the conduct of the proceedings. In sum, the

whole makes up the right to a fair hearing." (Eur. Court

H.R. Golder judgment of 21 January 1975, Series A, Vol. 18

p. 18 para. 36).

The Government have submitted that since the actions concerned

are still pending before the domestic courts, the applicant cannot be

considered as having exhausted the domestic remedies.

The Commission first observes that the alleged lack of the

applicant's access to a court constitutes a continuing situation

created by the provisions of the Royal Decree 30/1956 instituting the

substitution system. It finds that the respondent Government have not

shown how the decisions which will be given by the Greek courts can

remedy the situation complained of. It moreover considers that the

Government have not shown that a remedy is available to the applicant

under Greek law which would effectively permit him to challenge the

situation complained of before a competent authority.

The Government have submitted that the Greek law secures to

the applicant sufficient access to a court. They submit in particular

that the applicant can bring an autonomous ancillary interpleader

action and that he is entitled to lodge an "oblique action" with the

competent courts in case the TEE refuses to institute proceedings.

Furthermore, he can sue the TEE, claiming compensation for the damage

caused by the TEE's refusal to act in accordance with the law.

The applicant contends that neither the ancillary interpleader

action he is entitled to lodge nor an application for compensation

against the TEE can be considered as guaranteeing him sufficient

access to the court and control of the proceedings. Moreover, he

submits that the "oblique action" is only theoretically available in

his case.

The Commission finds that the question as to whether the

provisions of the Royal Decree 30/1956 reduce the applicant's right of

access to a court in a way or to an extent which would affect the very

essence of the right concerned raises important and complex issues

concerning the interpretation of Article 6 para. 1 (Art. 6-1) of the

Convention and necessitates an examination as to 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 of inadmissibility having been established.

7. The applicant complains that he has not been given any

effective remedy with regard to OEK officials' criminal activities.

He invokes Article 13 (Art. 13) of the Convention.

The Commission however observes that Article 13 (Art. 13)

guarantees an effective remedy only to a person who has an arguable

claim that a right contained in the Convention has been violated to

his detriment (cf. for ex. No. 6753/74, Dec. 19.12.74, D.R. 2 p. 118;

No. 7308/75, Dec. 12.10.78, D.R. 16 p. 32). However, no right to

institute criminal proceedings is as such guaranteed by the Convention

(cf. No. 7116/75, Dec. 4.10.176, D.R. 7 p. 91).

It follows that the Commission has no competence ratione

materiae to examine such a complaint, which must be rejected

accordingly pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

8. Finally the applicant complains of the criminal proceedings

which have been brought against him for allegedly insulting the

judicial authorities by stating that his cases had not been decided by

an independant and impartial tribunal and of his conviction by the

First Instance criminal court of Athens.

Article 10 (Art. 10) of the Convention provides that:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and

to receive and impart information and ideas without

interference by public authority and regardless of

frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present application the applicant's case is still

pending before the Court of Appeal and therefore, the applicant's

conviction by the First Instance Court cannot be regarded as final.

Since the applicant's complaints can be brought before the Court of

Appeal and subsequently before the Court of Cassation, the Commission

finds that he has not exhausted the remedies available to him under

Greek law, within the meaning of Article 26 (Art. 26) of the Convention.

Moreover, an examination of the case as it has been submitted 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 exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies. This part of

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

of the Convention.

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the complaint regarding the access of the applicant to

a court (point 6 of THE LAW part), and

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

LEXI