FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49213/99 by XENODOCHIAKI S.A. against Greece

The European Court of Human Rights, sitting on 15 November 2001 as a Chamber composed of

Mrs F. Tulkens , President , Mr C.L. Rozakis , Mr P. Lorenzen , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar

Having regard to the above application lodged on 5 January 1999 and registered on 29 June 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

The applicant company is incorporated under Greek law, has its head office in Athens and is currently under liquidation. It is represented before the Court by Mrs S. Spiliotopoulou-Koukouli, a lawyer practising in Athens.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1957 the Subsidiary Insurance Fund for Commercial-Shop Employees (Ταμείο Επικουρικής Ασφαλίσεως Υπαλλήλων Εμπορικών Καταστημάτων – hereinafter TEAYEK), a public body under the supervision of the Ministry of Labour [1] , leased to the applicant company a hotel in Athens.

On 7 August 1981 TEAYEK granted the applicant company the right to convert the hotel into a courthouse and sublease it to the State for a period of five years. On the same date the applicant company entered into an agreement with the State and TEAYEK for the sublease of the building to the State. The rent would be paid by the Court-Buildings Fund (Ταμείο Χρηματοδοτήσεως Δικαστικών Κτιρίων – hereinafter TAXDIK), a public body, and the Ministry of Justice to TEAYEK and the applicant company.

On 15 January 1987 the sublease came up for re-negotiation. The applicant company requested a 20% increase, which TEAYEK accepted. The State refused. However, it did not evacuate the premises, which it continues using until today to house the Court of Appeal of Athens. TEAYEK, considering that the sublease had been terminated, asked the State and TAXDIK to pay it the entire rent. The State and TAXDIK, not knowing to whom to pay the part of the rent that used to be collected by the applicant company, started deposing that part with the Fund for Trusts and Loans (Ταμείο Παρακαταθηκών και Δανείων).

On 14 May 1987 the applicant company sued the State and TAXDIK for its part of the rent from 1 January 1987 to 30 June 1987 before the single-member first instance civil court of Athens (first action). On 30 September 1987 the court accepted the applicant company’s action (decision no. 11919/1987 concerning the first action). On 14 December 1987 the defendants appealed. On 19 January 1988 TEAYEK intervened in the proceedings in favour of the appellants.

On 18 March 1988 Parliament enacted a law (no. 1759/1988) entitled “social cover of uninsured groups, improvement of the social security and other provisions”. Section 34 § 3 of that law provides for the termination of leases of real property owned by social security funds under the supervision of the Ministry of Health and Social Welfare and Security, if the property is used as commercial premises by a person other than the leaseholder. In that case the lease continues between the owner and the subtenant. It was indicated in the explanatory report that the subleases in question were continuously renewed and were “unfavourable and unprofitable” to the funds because it was the leaseholder who made capital of the bigger part of the rent. Thus, the purpose of the provision was to “stop the exploitation of the social security funds and their pensioners”.

On 22 March 1988 the Court of Appeal of Athens rejected both the appeal of the State and TAXDIK and the intervention of TEAYEK (decision no. 4257/1988 concerning the first action).

TAXDIK and the State appealed in cassation. TEAYEK did not. On 29 June 1988 the Court of Cassation rejected the appeal. It held that the sublease was tacitly renewed and that the State, which continued to use the building, had to pay the applicant company its part of the rent. The Court of Cassation made no reference to Law no. 1759/1988 (decision no. 1255/1988 concerning the first action). Subsequently, the applicant company was paid the amounts fixed.

On 12 August 1988 the applicant company sued the State and TAXDIK for its part of the rent from 18 March 1988 to 30 September 1988 before the single-member first instance civil court of Athens (second action). The defendants relied on section 34 § 3 of Law no. 1759/1988. The applicant company argued that the provision in question violated the constitutional provisions on equality and separation of powers. TEAYEK intervened in the proceedings claiming the rent for itself. On 14 March 1989 the court allowed TEAYEK’s intervention and dismissed the action (decision no. 1399/1989 concerning the second action). The applicant company appealed.

On 20 May 1989 the applicant company sued the State and TAXDIK for its part of the rent from 1 October 1988 to 30 September 1989 (third action). On 20 December 1989 the applicant company sued the State and TAXDIK for its part of the rent between 1 October 1989 and 31 December 1989 (fourth action). TAYEK intervened in both actions claiming the rent for itself.

On 5 February 1990 the Athens Court of Appeal upheld the applicant company’s appeal against the first instance court’s decision of 14 March 1989 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply to the case under consideration, which did not concern the lease of “commercial” premises (decision no. 1206/1990 concerning the second action). The State, TAXDIK and TEAYEK appealed in cassation. The applicant company also appealed arguing that the courts should declare section 34 § 3 of Law no. 1759/1988 unconstitutional because it violated the right to equal treatment, the right to property and the principle of separation of powers.

On 17 May 1990 the first instance court allowed the applicant company’s actions of 20 May 1989 and 20 December 1989 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 3395/1990 concerning the third action and decision no. 3398/1990 concerning the fourth action). The State, TAXDIK and TEAYEK appealed. The applicant company also appealed asking the court to declare section 34 § 3 of Law no. 1759/1988 unconstitutional.

On 20 June 1990 the applicant company sued the State and TAXDIK for its part of the rent from 1 January 1990 to 30 June 1990 (fifth action). TEAYEK intervened. On 30 January 1991 the first instance court allowed the action on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 3543/1991 concerning the fifth action). The State, TAXDIK and TEAYEK appealed. So did the applicant company relying on the alleged unconstitutionality of the above provision.

On 30 October 1990 the applicant company sued the State and TAXDIK for its part of the rent from 1 July 1990 and 31 December 1990 (sixth action) and on 16 July 1991 it sued them for its part of the rent from 1 January 1991 and 31 June 1991 (seventh action). TEAYEK intervened.

On 31 July 1991 the first instance court allowed the action of 30 October 1990 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 6556/91 concerning the sixth action). The State, TAXDIK and TEAYEK appealed. The appeal is still pending.

On 15 November 1991 the Athens Court of Appeal dismissed the appeals of the State, TAXDIK and TEAYEK against the first instance decisions of 17 May 1990, finding section 34 § 3 of Law no. 1759/1988 inapplicable (decision no. 9995/1991 concerning the third action and decision no. 9994/1991 concerning the fourth action).

On 8 January 1992 the applicant company sued the State and TAXDIK for its part of the rent from 1 July 1991 to 30 December 1991 (eighth action). The proceedings are still pending.

On 10 February 1992 the Athens Court of Appeal dismissed the appeal of the State, TAXDIK and TEAYEK against the first instance decision of 30 January 1991 (decision no. 1308/92 concerning the fifth action). The State, TAXDIK and TAYEK did not appeal in cassation.

On 30 June 1992 the first instance court allowed the action of 16 July 1991 on the ground that section 34 § 3 of Law no. 1759/1988 was inapplicable (decision no. 6146/1992 concerning the seventh action). The State, TAXDIK and TEAYEK appealed. The appeal is still pending.

On 28 July 1992 the applicant company sued for its part of the rent from 1 January 1992 to 30 June 1993 (ninth action). The proceedings are still pending.

On 17 March 1993 the applicant company sued for its part of the rent from 1 July 1992 to 31 December 1992 (tenth action). The proceedings are still pending.

On 23 March 1993 the applicant company sued for its part of the rent from 1 January 1993 to 30 June 1993 (eleventh action). The proceedings are still pending.

On 21 July 1993 the Court of Cassation allowed the State’s, TAXDIK’s and TEAYEK’s appeal in cassation against the Court of Appeal’s decision of 5 February 1990 considering that, according to section 34 § 3 of Law no. 1759/1988, TEAYEK was entitled to the whole rent (decision no. 770/1993 concerning the second action). However, on the same date it dismissed their appeals in cassation against the Court of Appeal’s decisions of 15 November 1991; it considered that the Court of Appeal had correctly decided the third and fourth actions because at the time it was bound by the res judicata effect of its own decision of 5 February 1990 (decision no. 768/1993 concerning the third action and decision no. 769/1993 concerning the fourth action). The applicant company notified these decisions to the State and TAXDIK on 14 February 1994. Under the Code of Civil Procedure, the time-limit for introducing remedies against these decisions is of fifteen days. However, according to a special law, the State and TAXDIK could challenge these decisions within a time-limit of thirty days.

On 10 March 1994 the State and TAXDIK asked the Court of Appeal to revise its two judgments of 15 November 1991 and then its judgment of 10 February 1992. On 28 December 1994 the Court of Appeal granted their first request (which concerned the two judgments of 15 November 1991), found section 34 § 3 of Law no. 1759/1988 applicable and not unconstitutional and reversed the first instance judgments (decision no. 6854/1994 concerning the third action and decision no. 6851/1994 concerning the fourth action).

On 14 July 1995 the Court of Appeal also revised its judgment of 10 February 1992 (decision no. 8229/1995 concerning the fifth action).

The applicant company appealed in cassation against decisions nos. 6851/1994 and 8229/1995. It claimed that the applications for revision were lodged out of time. It also invoked a violation of Articles 6 § 1 of the Convention and 1 of Protocol No. 1.

On 1 April 1998 the Court of Cassation dismissed the appeal in cassation as being ill-founded. In the first place, the court considered that the applications for revision were lodged within the time-limit of thirty days which applies to recourses filed by the State. Moreover, it considered that the applicant company had not sufficiently substantiated its complaints under Articles 6 § 1 of the Convention and 1 of Protocol No. 1 (decision no. 480/1998 concerning the fourth action and decision no. 479/1998 concerning the fifth action). The above decisions were finalised (καθαρογραφή) on 1 June 1998 and filed (αρχειοθέτηση) on 2 July 1998. The Court of Cassation does not serve its judgments. The applicant company became aware of them on 7 July 1998.

COMPLAINTS

The applicant company complains under Article 6 § 1 of the Convention of the legislative interference with the court proceedings it has instituted against the State and TAXDIK. It also complains that the national courts failed to observe the principle of equality of arms. The applicant company further complains that it was unjustifiably deprived of its right to its part of the rent, which amounts to a “possession” under Article 1 of Protocol No. 1. It stresses in this connection that the amount of the rent due under the contract was never questioned. The only issue at stake in the domestic court proceedings was to whom part of the rent should be paid. Finally, the applicant company also invokes Articles 13 and 14 in connection with both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

THE LAW

1 . The applicant company complains that the legislative interference in the litigation opposing it to the State and TAXDIK amounts to a violation of its right to a fair trial. It also complains that the principle of equality of arms has been violated, because the State and TAXDIK enjoyed special “procedural privileges” when lodging their applications for revision with the Court of Appeal. The applicant company invokes Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law...

A. The Government’s objections

The Government first submit that the application was lodged out of time. In their view the six-month period runs from 21 July 1993, which is the date on which decision no. 770/1993 was given. According to that decision, TEAYEK was entitled to the whole rent by virtue of section 34 § 3 of Law no. 1759/1988. Thus, the dispute was definitely settled and all further actions had no prospects of success. Alternatively, the Government argue that the final domestic decisions, which were given by the Court of Cassation on 1 April 1998, were finalised on 1 June 1998 and filed on 2 July 1998 and thus more than six months before the date on which the application was submitted to the Court.

The Government further submit that the applicant company has not exhausted domestic remedies in that it failed to substantiate its complaints under Articles 6 § 1 of the Convention and 1 of Protocol No. 1 before the Court of Cassation. In their view, this was a procedural mistake which constitutes a failure to exhaust domestic remedies.

The applicant company contests the Government’s arguments. It points out that following decision no. 770/1993, the Court of Cassation delivered two judgments which were favourable to it (decision no. 768/1993 concerning the third action and decision no. 769/1993 concerning the fourth action). The applicant company affirms that it had no reason to abandon its other actions or to consider that it had lost all prospects of success. Moreover, it stresses that no negligence can be attributed to it when lodging its application to the Court. Concerning the exhaustion of domestic remedies, the applicant company stresses that it did draw attention before the Court of Cassation to the issues it now submits to the Court.

The Court recalls that according to Article 35 § 1 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, and within a period of six months from the date on which the final decision was taken”.

The Court considers that the Government have failed to show that as from 21 July 1993, when decision no. 770/1993 was given, the applicant company could reasonably have known that no effective remedy was any longer available, especially since, on the same date, the Court of Cassation delivered two judgments which were favourable to it.

Moreover, the Court notes that the final domestic decisions of the Court of Cassation were finalised on 1 June 1998 and filed on 2 July 1998. As from that last-mentioned date, anybody interested could get a copy of them. The applicant company did so only five days later, on 7 July 1998, and lodged its application to the Court less than six months later, on 5 January 1999. The Court has already ruled that parties to proceedings cannot be required to enquire day after day whether a judgment  that has not been served on them has been delivered (see Papageorgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2287, § 32).

For the above reasons, the Court considers that the applicant company has complied with the six-month time-limit. It therefore rejects the Government’s objection.

As regards the exhaustion of domestic remedies, the Court reiterates that the purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. This rule must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the complaints intended to be made subsequently before the Court should have been raised, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law” before the national authorities ( Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999–I).

In the instant case the Court notes that the applicant company has expressly raised before the Court of Cassation its complaints under Articles 6 § 1 of the Convention and 1 of Protocol No. 1. It is true that the Court of Cassation rejected the relative arguments as being unsubstantiated; however, it cannot be maintained that this amounts to a procedural mistake which constitutes a failure to exhaust domestic remedies.

Therefore, the Court dismisses the Government’s objection.

B. The merits of the complaint

The Government affirm that Law no. 1759/1988 did not have retrospective effect and that the domestic courts only applied it in proceedings which were instituted after its entry into force.

As regards the alleged violation of the principle of equality of arms, the Government affirms that the fact that the State and TAXDIK disposed and made use of a longer time-limit than private persons for lodging their petition for revision has not influenced negatively any protected right of the applicant company.

The applicant company refers to the timing and manner of the adoption of Law no. 1759/1988. The law was enacted after the applicant company had won its first action before the single-member first instance civil court of Athens. The applicant company admits that the law came into force at a date subsequent to the sublease period concerned by its pending first action, but stresses that, nonetheless, it determined the outcome of the proceedings which were bound to follow and which had the same legal basis and object as the pending case. Were it not for the legislative intervention, the State would have lost all subsequent cases. Moreover, the applicant company affirms that it was the particular target of section 34 § 3 and that the Government have failed to show, or even to contend, that the contested provision applied in another case. Lastly, the applicant company argues that section 34 § 3 was contained in a statute which bore no relation to that provision. It points out that the absence of such a connection is prohibited by Article 74 § 5 of the Greek Constitution, which provides that “a government or private member’s bill containing provisions unrelated to the principal subject matter of the bill shall not be put before Parliament”.

Lastly, the applicant company alleges that the fact that it has not been prevented, by the “procedural privileges” which the State enjoys, from meeting any deadline is irrelevant, and that the extended time-limits and the use of them by the State constitute per se a breach of the Convention.

The Court recalls that the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute (see, among other authorities, Zielinski and Pradal & Gonzalez Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999–VII). However, the legislature is not in principle precluded in civil matters from adopting new, and even retrospective provisions to regulate rights arising under existing laws (see Papageorgiou v. Greece, op. cit., p. 2288, § 37).

In the instant case there is no doubt that section 34 § 3 of Law no. 1759/1988 terminated the agreement of lease between the applicant company and TEAYEK, a public body under the supervision of the State. This is not a matter for the Court to examine. The Court is only competent to examine whether the State infringed the applicant company’s rights under Article 6 § 1 by intervening in a manner which was decisive to ensure that the outcome of the proceedings to which it was a party was favourable to it (see the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, p. 82, § 52).

In this respect, the Court notes that on 18 March 1988, when Law no. 1759/1988 was enacted, only the first set of proceedings was pending. These proceedings ended without Law no. 1759/1988 being applied, by a decision which was favourable to the applicant company. All the other proceedings were instituted after the entry into force of Law no. 1759/1988 and concerned claims for rent from 18 March 1988 onwards. It is clear that these subsequent actions have already failed or are bound to fail as a consequence of the enactment of the law, which terminated the lease (upon which the applicant company based its claims) as from the above-mentioned date. However, this effect cannot be equated with an interference by the authorities with pending legal proceedings to which they are a party.

Moreover, the Court notes that “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. In the present case, there is no evidence whatsoever that the applicant company was in any way prejudiced by the fact that the State and TAXDIK lodged their petitions for revision of the Athens Court of Appeal decisions within the special time-limit of thirty days provided for by law.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2 . The applicant company complains that Law no. 1759/1988 deprived it of its vested contractual rights which constituted possessions within the meaning of Article 1 of Protocol No. 1. This provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government argue that the applicant company was not deprived of a “possession” and that Law no. 1759/1988 simply changed for the future the legal situation established at that time between the contracting parties.

The Court first notes that the applicant company was paid its part of the rent for the period during which the sublease contract was in force. As regards its claims for rent for the period from 18 March 1988 onwards, the Court is of the opinion that they constituted expectations for future income which cannot be regarded as “possessions” within the meaning of Article 1 of Protocol No. 1, since they had not been recognised and determined by a judicial decision having final effect. Yet that is the condition for a claim to be certain, enforceable and, accordingly, protected by Article 1 of Protocol No. 1 (see, among other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece judgment, op. cit., pp. 84–85, §§ 59–62). Nor could the applicant company rely on a “legitimate expectation” that its claims would be granted (see, a contrario , Pressos Compania Naviera S.A. and others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21, § 31), since the legal basis of these claims, namely the lease agreement, had been terminated on 18 March 1988.

In these circumstances, the Court considers that the termination of the sublease agreement to which the applicant’ company was a party by virtue of Law no. 1759/1988 did not affect any property right protected under Article 1 of Protocol No. 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3 . The applicant company further complains that it was the only target of Law no. 1759/1988 and that, therefore, it had been treated differently from all other leaseholders. It invokes Article 14 of the Convention in connection with both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

According to the Court’s case-law, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, among many other authorities, the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).

The Court has held that in the instant case there is no violation of Articles 6 § 1 of the Convention and 1 of Protocol No. 1 taken alone. It remains therefore to be examined whether there is a violation of these provisions read in conjunction with Article 14.

The Court recalls that Article 14 will be breached where, without objective and reasonable justification, persons in “relevantly” similar situations are treated differently. It has therefore to be established, inter alia , that the situation of the alleged victim can be considered similar to that of persons who have been better treated (see the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B, p. 28, § 45).

In the present case, the Court notes that it has not been established that section 34 § 3 of Law no. 1759/1988 aimed exclusively at the applicant company. The section had been drafted in objective and impersonal terms and governed any case falling within its scope. Therefore, it cannot be maintained that there was any difference in treatment to the detriment of the applicant company.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4 . Lastly, the applicant company complains that there is in Greek law no effective means of challenging the enactment of Law no. 1759/1988 and its application to its case, nor the discriminatory treatment it claims to have suffered. It invokes Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that the Convention organs have consistently held that it cannot be deduced from Article 13 that there must be a remedy against legislation as such which is considered not to be in conformity with the Convention. Such a remedy would in effect amount to some sort of judicial review of legislation because any other review – generally sufficient for Article 13 which requires only a “remedy before a national authority” – could hardly be effective concerning legislation (see, among many others, No. 24581/94, dec. 6.4.1995, DR 81, p. 123).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Françoise Tulkens Registrar President

[1] Subsequently, the Ministry of Health and Social Welfare and Security took over the supervision of TEAYEK from the Ministry of Labour.