SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47891/99 by Nikolaos SPENTZOURIS against Greece

The European Court of Human Rights, sitting on 31 May 2001 as a Chamber composed of

Mr A.B. Baka , President , Mr C.L. Rozakis , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler ,

Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 14 November 1998 and registered on 4 May 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolaos Spentzouris , is a Greek national, born in 1937 and living in Athens. He is represented before the Court by Mr K. Sakellariadis and Mr C. Tselios , both lawyers practising in Athens.

A. The circumstances of the case

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

Between 13 July 1953 and 15 October 1957 the applicant paid contributions to the Fund of Typographers and Graphic-Arts Employees ( Ταμείο Τυπογράφων και Μισθωτών Γραφικών Τεχνών ) for 1136 working days.

Between 1 February 1979 and 31 December 1980 the applicant paid contributions to the Social Security Foundation ( Ίδρυμα Κοινωνικών Ασφαλίσεων ) for 86 working days.

Between 1 January 1981 and 30 July 1981 the applicant paid contributions to the Social Security Fund for Technical Staff working in the Athens Press ( Ταμείο Ασφάλισης Τεχνικών Τύπου Αθηνών ) for seven months. Between 1 August 1981 and 31 May 1988 he paid contributions to the same fund for five years, ten months and 18 days.

Then the applicant requested to be put on retirement under sections 18 § 2 and 10 § 1 of Law No. 1186/81. On 16 December 1988 the Director of the Social Security Fund for Technical Staff working in the Athens Press decided that the applicant was entitled to the pension provided for those who had worked for five to ten years (section 10 § 1 (a)).

The applicant appealed against this decision considering that, under the relevant legislation, the Fund should also have taken into consideration the working days in respect of which he had paid contributions to the Fund of Typographers and Graphic-Arts Employees and the Social Security Foundation. His appeal was rejected by the Board of the Social Security Fund for Technical Staff working in the Athens Press sometime in 1989.

On 19 April 1989 the applicant challenged this decision before the First Instance Administrative Court of Athens. On 28 February 1990 the court considered that sections 18 § 2 and 10 § 1 of Law No. 1186/81 were provisions of an exceptional nature. As a result, there was no room for applying the legislation concerning the taking into consideration of working days in respect of which contributions had been paid to other funds.

On 20 July 1990 the applicant appealed against this decision. His appeal was rejected by the Administrative Court of Appeal of Athens on 10 April 1992.

On 30 June 1992 the Administrative Court of Appeal of Athens considered, in another case, that the Social Security Fund for Technical Staff working in the Athens Press, when examining requests under sections 18 § 2 and 10 § 1 of Law No. 1186/81, had to apply the legislation concerning the taking into consideration of working days in respect of which contributions had been paid to other funds (decision no. 3634/1992).

On 2 July 1993 the applicant appealed in cassation . He argued that if the contributions he had paid to other funds were not taken into account, his property rights would be violated, in breach of the Constitution. The applicant did not invoke decision no. 3634/1992.

At first, the hearing was set down for 11 April 1994 but it was adjourned because the lawyers of the Athens Bar Association were on strike. A new hearing was set down for 21 November 1994 but it was continuously postponed. The hearing was finally held on 25 May 1998.

On 9 June 1998 the Council of State rejected the applicant’s appeal referring to a number of previous decisions to the effect that the legislation concerning the taking into consideration of working days in respect of which contributions had been paid to other funds did not apply in cases of provisions that create exceptional rights to a pension.

B. Relevant domestic law and practice

According to section 18 § 2 of Law No. 1186/81, persons who have contributed for at least five years to the Social Security Fund for Technical Staff working in the Athens Press are entitled to a pension if they are made redundant out of no fault of their own or because of the introduction of new technology. Their pensions are calculated according to section 10 of the same law. According to section 10 § 1 (a), those who have contributed for five to ten years will receive a monthly pension of GRD 10,000. Section 10 § 1 (b) fixes a higher amount for those who have contributed for more than ten years.

On 21 November 1985 the Ministry of Health, Welfare and Social Security informed the Social Security Fund for Technical Staff working in the Athens Press that, when examining requests under sections 18 § 2 and 10 § 1 of Law No. 1186/81, it should apply the legislation concerning the taking into consideration of working days in respect of which contributions had been paid to other funds.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the length and outcome of the proceedings.

THE LAW

1. The applicant complains about the length of the proceedings. He invokes Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Government submit that the length of the proceedings does not disclose a breach of Article 6 § 1 of the Convention, given the seriousness of the case and the fact that many delays were caused by the lawyers’ strike for which the Government are not responsible.

The applicant argues that the Government cannot justify the delays by referring to the lawyers’ strike, given that only on one occasion the hearing was adjourned on that account. Overall, the applicant submits that the particular circumstances of the case cannot justify the length of the proceedings.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. This complaint should therefore be declared admissible.

2. Invoking Article 6 § 1 of the Convention, the applicant further complains that domestic law had been wrongly interpreted when it was decided that the working days in respect of which contributions had been paid to other funds could not be taken into account for the calculation of his pension. He stresses that the Athens Court of Appeal granted an identical claim of one of his colleagues.

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR-I).

In the present case, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case. There is no evidence to suggest that the applicant was deprived of a fair trial within the meaning of Article 6 § 1 of the Convention. As regards the applicant’s argument that in an identical case the Athens Administrative Court of Appeal had decided in accordance with his claim, the Court notes that there is no indication that the applicant pleaded this aspect before the Council of State. As a result, he has failed to exhaust domestic remedies in this respect.

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 finally complains that his property rights have been violated. He invokes Article 1 of Protocol No. 1 which 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 Court notes that the applicant’s claims 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, current, enforceable and, accordingly, protected by Article 1 of Protocol No. 1 (see, among other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, pp. 84–85, §§ 59–62). Nor could the applicant rely on a “legitimate expectation” that his 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 it appears that the Council of State had already considered on a number of occasions that the legislation concerning the taking into account of working days in respect of which contributions had been paid to other funds did not apply in cases of provisions that create exceptional rights to pensions.

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 admissible, without prejudging the merits, the applicant’s complaint [Note1] about the length of the proceedings;

Declares inadmissible the remainder of the application.

Erik Fribergh András B aka [Note2] Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.

[Note2] Change if necessary.