THIRD SECTION

AS TO THE ADMISSIBILITY OF

Application no. 38971/97

by Patra PROTOPAPA and Anna MARANGOU

against Greece

The European Court of Human Rights ( Third Section) sitting on 24 August 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr C. Rozakis ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 October 1997 by Patra PROTOPAPA and Anna MARANGOU against Greece and registered on 11 December 1997 under file no. 38971/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 28 December 1998 and the observations in reply submitted by the applicants on 1 February 1999;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Greek citizen, born in 1914 and a pensioner. The second applicant is a Greek citizen, born in 1947 and a pharmacist. They reside in Athens.

They are represented before the Court by Mr C. Horomidis , a lawyer practising in Salonica .

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

The applicants are the owners of a 50 % share in a plot of land situated in Rhodes in the area of Ayios Stephanos (Monte Smith).

On 8 November 1971 the Ministers of Finance and Culture and Sciences decided to expropriate the plot in question considering that it was of archaeological interest.

The owner of the other 50% share accepted the expropriation and received compensation.

On 19 October 1988 the applicants requested the two Ministers to revoke the above-mentioned expropriation decision because, as they alleged, the property was not situated within the archaeological zone of Ayios Stephanos (Monte Smith) and because the expropriation of their share had not been completed within the time-limit provided for in domestic law. Having received no reply within the time-limit provided for in domestic law, on 2 February 1989 the applicants lodged an application for judicial review ( etisi akiroseos ) before the Council of State ( Simvulio tis Epikratias ) challenging the implied refusal of the Ministers to revoke their decision of 8 January 1971.

On 16 November 1989 the Ministers of Finance and Culture and Sciences adopted another decision expropriating the applicant’s share in the plot of land.

The applicant's judicial review application of 2 February 1989 - which concerned the first ministerial decision of 1971 - was set for hearing by the Fourth Section of the Council of State on 6 November 1990. However, on that date the hearing was adjourned until 22 October 1991. Prior to that date, on 2 October 1991, the applicants filed a document with additional arguments ( dikografo prostheton logon akirosis ). On 22 October 1991 the hearing was again adjourned until 17 March 1992. On 17 March 1992 the Fourth Section decided to transfer the case to the Fifth Section. On 5 May 1993 the Fifth Section decided to adjourn the examination of the case until 3 November 1993.

Between September 1992 and April 1993 the lawyers were on strike.

On 10 May 1993 the applicants requested the Ministers of Finance and Culture and Sciences to revoke the expropriation decision of 1971, which had been confirmed in 1989. Having received no reply within the time-limit provided for in domestic law, on 16 August 1993 the applicants lodged a second application for judicial review before the Council of State challenging the second implied refusal of the two Ministers. The applicants requested that their second judicial review application be heard by the Fifth Section together with the first on 3 November 1993.

However, on that date the Fifth Section of the Council of State decided to adjourn the hearing of both judicial review applications. Further adjournments were ordered on 9 February 1994, 23 March 1994, 6 April 1994 and 1 June 1994.

Then the applicants withdrew their first application for judicial review. Their second judicial review application was eventually heard on 22 June 1994. No decision has been rendered as yet.

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention of the length of the proceedings.

PROCEDURE

The application was introduced on 17 October 1997 and registered on 11 December 1997.

On 10 September 1998, the European Commission of Human Rights decided to communicate the application to the respondent Government.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

The Government’s written observations were submitted on 28 December 1998, after an extension of the time-limit fixed for that purpose. The applicants replied on 1 February 1999.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention of the length of the proceedings.

The relevant part of Article 6 § 1 of the Convention provides as follows:

“In the determination of his civil rights and obligations …, everyone is entitled to a hearing … within a reasonable time … .”

The Government submit that the Court should only take into consideration the length of the proceedings that the applicants instituted in 1993. The proceedings instituted in 1989 were separate and ended before 22 June 1994.

The applicants submit that both sets of proceedings should be taken into consideration since they had the same object.

The Court notes that the applicants complain of the length of two sets of proceedings, one arising out of their application for judicial review of the ministers’ implied refusal to revoke in 1988 the expropriation of the applicants’ share in a plot of land and another arising out of a second application for judicial review of the ministers’ implied refusal to revoke in 1993 the same expropriation, which they had in the meantime confirmed on 16 November 1989. Although their subject-matter was similar, the two sets of proceedings were not only technically separate but also concerned two separate administrative decisions, the two implied refusals. The Court, therefore, considers that the applicants’ complaints concerning the length of the two sets of proceedings should be examined separately.

The Court also notes that the first set of proceedings was instituted on 2 February 1989 and ended some time before 22 June 1994. The application was lodged on 17 October 1997. It follows that the applicants did not respect the six-month time-limit provided for in Article 35 § 1 of the Convention, in so far as their complaint concerning the first set of proceedings is concerned.

The Court, therefore, considers that this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

2. As regards the applicants’ complaint concerning the proceedings that started on 16 August 1993 before the Council of State, the Government submit that the applicants have not exhausted domestic remedies because they have not sued the judges who have delayed the hearing of their case or the State for damages. They also submit that the applicants’ case was complex because it concerned the expropriation of a 50 % share of a plot of land. The owner of the other half had already accepted the expropriation. Moreover, the applicants’ case was heard immediately after the end of the lawyers’ strike. However, the strike, for which the Government were in any event not responsible, had created a backlog. Hence the delay in the delivery of judgment.

The applicants submit that the case should not be rejected for failure to exhaust domestic remedies. They consider that the case was not complex. The problems arising out of the prior expropriation of half of the plot were of a purely legal nature and could have been solved quickly. The lawyers’ strike need not have delayed the proceedings significantly. The Council of State should have taken advantage of the strike to clear its backlog. In any event, the strike cannot justify a five-year delay in the delivery of judgment. The applicants’ lawyer always protested against the adjournments.

The Court notes that the Government argue that the applicants have not exhausted domestic remedies because they did not sue the judges or the State for damages. However, the Convention organs have found that, in the case of proceedings that are still pending before the domestic courts, a claim for compensation cannot be considered to be a remedy that would redress the alleged violation by providing direct and speedy – as opposed to merely indirect – protection of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention (No. 36153/97, Dec. 20.5.98, D.R. 93-A, p. 104). The proceedings instituted by the applicants in the Council of State are still pending and cannot effectively be accelerated by the applicants. It follows that an action for damages would not provide them with an effective remedy. The Court, therefore, considers that their application cannot be declared inadmissible for failure to comply with the rule concerning exhaustion of domestic remedies in Article 35 § 1 of the Convention.

The Court further notes that the parties do not dispute that the proceedings in question involved a determination of the applicants’ civil rights and obligations. Given that the proceedings concerned the expropriation of the applicants’ property, the Court considers that Article 6 § 1 of the Convention is applicable.

Finally, as regards the parties’ remaining arguments on the substance of the complaint, the Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court, unanimously, / by a majority,

DECLARES ADMISSIBLE , without prejudging the merits, the applicants’ complaint concerning the length of the proceedings they instituted before the Council of State on 16 August 1993;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza

Registrar President