SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46356/99 by Dimitris SMOKOVITIS against Greece

The European Court of Human Rights (Second Section), sitting on 22 March 2001 as a Chamber composed of

Mr A.B. Baka , President , Mr C.L. Rozakis ,

Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 January 1998 and registered on 24 February 1999,

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

Having deliberated, decides as follows:

THE FACTS

The twenty-four applicants, whose names appear in the appendix, are Greek nationals. They are represented before the Court by Mr D. Stranis, a lawyer practising in Athens.

A. The circumstances of the case

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

The applicants teach as temporary staff at the polytechnic school in Piraeus (Τεχνολογικό Εκπαιδευτικό Ίδρυμα Πειραιά) on the basis of private-law contracts. On 22 October 1992 they sued their employer for a supplement to their salary, as research allowance (ερευνητική χορηγία - hereinafter “the benefit”), that had been granted by ministerial decision no. 2023080/2538/0022/SHET.2057/1989 to “those teaching at polytechnics”.

The applicants relied on a number of decisions by the Court of Appeal in Piraeus granting the benefit in question to academic staff of the polytechnic school with the applicants’ status. Their action was one of several actions pending before the Piraeus courts at the time.

On 30 September 1993 the single-member first instance civil court (Μονομελές Πρωτοδικείο) of Piraeus considered that the applicants were entitled to the benefit. It awarded GRD 600,000 to applicant no. 1, GRD 570,000 to each of applicants Nos. 2-5, GRD 380,000 to each of applicants Nos. 6 and 7, GRD 300,000 to each of applicants Nos. 8 ‑ 12, GRD 450,000 to each of applicants 13 ‑ 20, GRD 330,000 to each of applicants Nos. 21 ‑ 23 and GRD 210,000 to applicant No. 24.

On 11 February 1994 the school appealed.

On 31 August 1994 Parliament enacted Law no. 2233/1994. Article 2 § 2 of that law provided the following: the ministerial decision of 1989, according to its true meaning, concerned only permanent staff; any claims that had not been recognised by final decisions were statute-barred; all pending court cases were discontinued.

On 19 July 1995 the Court of Appeal of Piraeus upheld the school’s appeal (decision no. 1001/1995). The court considered that Article 2 § 2 of Law no. 2233/1994 “is truly interpretative and has retroactive effect (Article 77 § 1 of the Constitution)”, and that “it clearly results from these provisions that the temporary staff of the polytechnic schools are not entitled to the benefit provided for by the ministerial decision [of 1989]”. The court continued:

“Moreover... Articles 4 and 22 of the Constitution ... provide for equal pay for work of equal value rendered ... However, the principle of non-discrimination ... is relented when the differentiation in the pay for work of equal value is imposed by reasons of general public and social interest. Such a reason, which justifies the fixing by the legislator of a different pay among employees who render ... the same work, exists when the ones work on the basis of public law contracts and the others on the basis of private law contracts, i.e. when each group belongs to a different category, ruled by a different legal status entailing different ... rights and obligations. Therefore the judgment under appeal which ... considered that [the applicants] as temporary staff of the school ... working on the basis of private law contracts, are entitled to receive the benefit ... was wrong and did not interpret correctly the law, which was in fact interpreted by the ensuing (truly) interpretative Law no. 2233/1994, and thus the doubt which was created due to its ambiguity has been removed. In view of the fact that by virtue of that law the benefit is given only to permanent staff and not to temporary staff ... like [the applicants], the constitutional principle of equal pay for work of equal value is not violated, given that this deviation is imposed by the general public and social interest, because a full equation of the pay of these different categories of working people would overrule the basic principle of free negotiation of the employment conditions in the public sector ...”

On 20 June 1996 the applicants appealed in cassation relying, inter alia , on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

On 25 July 1997 the Court of Cassation considered that the 1994 law simply interpreted the 1989 ministerial decision, did not have the purpose of resolving the litigation and did not interfere with the applicants’ rights under the Convention. It rejected their appeal (decision no. 1328/1997).

B. Relevant domestic law and practice

a) The relevant provisions of the 1975 Constitution read as follows:

Article 77 § 1

“The authentic interpretation of the laws shall rest with the legislative power.”

Article 93 § 4

“The courts shall be bound not to apply laws, the contents of which are contrary to the Constitution”.

b) The District Court (Ειρηνοδικείο) of Piraeus in its decisions nos. 75/1993, 81/1993 and 153/1995 considered that the benefit provided for by the ministerial decision of 1989 concerned both permanent and temporary staff. The same line was followed by the single-member first-instance civil court of Athens in decisions nos. 229/1992, 882/1992, 551/1993 and 739/1993, the single-member first-instance civil court of Thessaloniki in decision no. 478/1990, the single ‑ member first ‑ instance civil court of Larissa in decision no. 618/1991, the multi ‑ member first instance civil court (Πολυμελές Πρωτοδικείο) of Kavala in decision no. 123/1991, the Court of Appeal of Thessaloniki in decision no. 2117/1991, and the Court of Appeal of Piraeus in decisions nos. 164/1993 and 165/1993.

c) Law no. 2233/1994 provides the following:

Article 2 § 2

“a) The true meaning of the provisions of paragraphs 1 and 2 of Article 2 of decision  no. 2023080/2538/0022/SHET.2057/1989 is that the benefit … is paid only ... to the permanent staff of the schools ...

b) Any claims relating to the payment of such benefit also to the temporary staff … shall be extinguished unless for cases in which, at the time of the publication of this law, a final judgment (αμετάκλητη δικαστική απόφαση) has been issued. Any claims pending in any court for the payment of such benefit shall be struck out ...”

d) The single-member first-instance civil court of Piraeus, in its decisions nos. 885/1994 and 889/1994, considered that Article 2 § 2 of Law no. 2233/1994 was clearly unconstitutional as it violated the principle of equality. Therefore it refused to apply it and allowed the plaintiffs’ claims. The same line was followed by the District Court of Piraeus in decisions nos. 41/1997 and 42/1997.

COMPLAINTS

The applicants complain, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, of the legislative interference in their case that led to the extinction of their claims, which constituted “possessions”.

THE LAW

1. The applicants complain that the legislative interference in the litigation opposing them to the school amounts to a violation of their right to a fair trial under 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 ... hearing ... by [a] ... tribunal established by law...

The Government submit that in principle the legislature is not precluded from regulating by new provisions rights arising under laws previously in force. They argue that Law no. 2233/1994 had not been enacted for the purposes of resolving the litigation between the applicants and the school. Article 2 § 2 of the law was of a general nature and the intention of Parliament was to remove the doubt that the 1989 ministerial decision had created. It therefore governed any case falling within its scope and not only the applicants’ case. The Government further note that there were no decisions of the Court of Cassation on the matter. The fact that the case-law of the lower courts was favourable to the applicants cannot indicate that the Court of Cassation would also rule in their favour. Lastly, the Government note that the timing of the enactment of Law no. 2233/1994 was not suspicious and the State was not a litigant in the proceedings opposing the applicants to the school.

The applicants reply that, before the enactment of Law no. 2233/1994, the constant case-law of the lower courts was favourable to their claims, and that there was no need whatsoever to interpret the 1989 ministerial decision, which was perfectly clear. In any event, had there been a need of interpretation of the ministerial decision, the applicants do not understand why Law no. 2233/1994 was enacted only five years after the decision was taken. In their view, Article 2 § 2 of Law no. 2233/1994 was an arbitrary provision, contrary to the Constitution. This view was also shared by the domestic courts on several occasions. The applicants conclude that the 1994 law was not a genuinely interpretative provision but was enacted in order to prejudice their chances of success in the litigation opposing them to the polytechnic school, a public body.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants further complain that the enactment of Article 2 § 2 of Law no. 2233/1994 had the effect of extinguishing their claims, which constituted “possessions”. They invoke Article 1 of Protocol No. 1, which is worded 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 submit that Article 1 of Protocol No. 1 does not apply in the present case, since the applicants cannot claim to be owners of a “possession” within the meaning of that provision. In the alternative, the Government claim that even if Article 1 of Protocol No. 1 were applicable in the present case, the complaint is manifestly ill-founded.

The applicants reply that their claims were enforceable. In accordance with the constant case-law at the time, they had “a legitimate expectation” that the courts would have found in their favour if they had applied the provisions of the relevant ministerial decision as they were understood prior to the legislative interference. They further maintain that Law no. 2233/1994 did not observe a reasonable relationship of proportionality between the objective to be achieved and the burden that was imposed on them.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Erik Fribergh András B aka Registrar President

APPENDIX

1. Dimitrios Smokovitis

2. Konstandinos GarOufalis

3. Ioannis BOules

4. Ioannis Milonas

5. Panagiotis SpiliopOulos

6. Paraskevi GalinOu

7. Evangelos Karalekas

8. Anna KokkinOu

9. Despina PapafloratOu

10. Xenofondas Vardakis

11. Pandeleimon Vardakis

12 . Olimbia VOuloGeorGi

13. Anastasia Makellaraki

14. Georgios Alexis

15. Georgios Mirilos

16. Christina DOuvri

17. Athanassios Spiridakos

18. Maria KOuimani

19. Maria KaragOuni

20. Georgios PapadopOulos

21. Maria AnasoglOu-Konidari

22. Panayiotis Tsatsaros

23. Kalliopi Hini

24. Ekaterini LabropOulOu