Search
document

Document text Analytics

D. AND A.A. H. v. GREECEDISSENTING OPINION OF Mr. F. MARTINEZ

Doc ref: • ECHR ID:

Document date: October 23, 1995

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

D. AND A.A. H. v. GREECEDISSENTING OPINION OF Mr. F. MARTINEZ

Doc ref: • ECHR ID:

Document date: October 23, 1995

Cited paragraphs only

DISSENTING OPINION OF Mr. F. MARTINEZ

Much to my regret, I cannot share my colleagues' opinion. Here

are my reasons:

Article 6 of the Convention is violated if a court fails to give

a ruling within a reasonable time. On the facts of this case, the

court, that is, the Council of State, is not the subject of any

criticism.

The authorities are criticised for letting five years go by

without giving a decision on the fresh application lodged by the

applicants.

The question arises whether the authorities' delay can constitute

a violation of Article 6.

The Commission considers in its report that the authorities had

a duty to enforce the Council of State's decision, which they failed

to do. The Commission therefore finds that the length of the

proceedings was excessive.

I cannot subscribe to such an approach.

The Council of State's decisions of 9 and 10 May 1989, to which

the Commission refers in paragraph 24 of its report, did not establish

a subjective right in favour of the applicants, as the latter had

merely filed an application for judicial review (recours en excès de

pouvoir in French terminology). It is in that context that the

authorities' decision to reject the applicants' request for a licence

to open a foreign language school, on the ground that they were not

Greek nationals, was set aside by the Council of State.

It cannot be inferred from those decisions - and I am adamant

about this - that the applicants had a right to open the school. The

decisions, which were given following an application for judicial

review, are confined to setting aside the refusal, on grounds of the

applicants' nationality, to grant a licence. They are therefore merely

declaratory decisions and are not enforceable by the authorities.

The only obligation on the authorities is not to refuse to grant

a licence on grounds of the applicants' nationality. They remain free,

however, to grant or reject a further application by the applicants for

reasons other than their nationality.

Thus, when the applicants lodged a fresh application on 8 August

1989 (see paragraph 26 of the Report), the obligation on the

authorities was not to enforce the Council of State's decisions, but

to reply to a further application.

Does the fact that the authorities allowed five years to go by

without replying constitute a violation of Article 6 of the Convention?

This is the crux of the matter!

My view is that had the authorities' delay prevented the

applicants from applying to the administrative courts, they may have

been able to make out an indirect violation of Article 6 of the

Convention. That was not the case, however. The applicants could, in

this case, after three months' silence on the part of the authorities,

have applied to the Council of State contesting the implicit rejection

of their application.

In the circumstances, as the applicants have apparently had the

time (and patience) to wait five years, rather than bring the case

before the administrative courts, they can complain of inertia on the

part of the Greek authorities, but not of a violation of Article 6 of

the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_______________________________________________________________

7 January 1990 Introduction of the application

14 June 1991 Registration of the application

Examination of admissibility

30 June 1993 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

20 October 1993 Commission's decision to grant the

respondent Government an extension

10 December 1993 Government's observations

17 February 1994 Applicant's observations in reply

31 August 1994 Commission's decision to declare the

application admissible

Examination of the merits

27 September 1994 Decision on admissibility transmitted to

the parties

1 November 1994 Government's supplementary observations

requesting the Commission to declare the

application inadmissible under Article 29

of the Convention

10 November 1994 Applicants' supplementary information

17 January 1995 Examination of state of proceedings

26 February 1995 Applicant's comments on the Government's

request for the application to be declared

inadmissible under Article 29 of the

Convention

9 March 1995 Applicant's additional comments

11 April 1995 Commission's decision not to grant the

Government's request to declare the

application inadmissible under Article 29

17 October 1995 Commission's decision that the case should

be examined by the Plenary

23 October 1995 Adoption of Report

LEXI

Lexploria AI Legal Assistant