SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38703/97
by Dimitrios AGOUDIMOS and CEFALLONIAN SKY SHIPPING CO.
against Greece
The European Court of Human Rights (Second Section), sitting on 18 May 2000 as a Chamber composed of
MrA.B. Baka, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrE. Levits, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 19 September 1997 and registered on 21 November 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 first applicant is a Greek national, born in 1933 and living in Piraeus. The applicant company is incorporated under Greek law, has its seat in Piraeus and has gone into liquidation. The first applicant is one of the three liquidators. The applicants are represented before the Court by Mr N. Scorinis, a lawyer practising in Piraeus.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 December 1982 the ship Omega Kasos, registered in Piraeus and owned by K Shipping Co., was seized by the company’s creditors. The ship was put on compulsory sale by auction (anangastikos plistiriasmos) on 6 February 1983. It was acquired by the first applicant at the price of GRD 4,002,000 (approximately FRF 80,000). On 15 February 1983 the first applicant sold the ship to the applicant company which in turn sold it to a foreign company.
On 17 February 1983 the applicant company asked the registrar of ships (nioloyos) of Piraeus to remove the ship from his records since it had been acquired by a foreigner. The request was refused on the ground that the applicant company had failed to produce a certificate to the effect that debts owed in respect of the ship to the tax and social security authorities prior to the auction had been paid in full.
The applicant company challenged ex parte (ekusia dikeodosia) the registrar’s refusal before the single-member first instance civil court (monomeles protodikio) of Piraeus. On 6 April 1983 the court considered that the production of the certificate requested by the registrar was not necessary; according to the view followed by most courts, a person acquiring a ship put on compulsory sale by auction was not responsible for the previous owners’ debts to the State or the sailors’ social security fund (Naftiko Apomahiko Tamio – hereinafter NAT). The registrar and NAT did not appeal against this decision. On 1 June 1983 Omega Kasos was removed from the records of the Piraeus registry for ships.
On 10 January 1984 NAT ordered the first applicant and the applicant company, in their capacity as previous owners of Omega Kasos, to pay USD 124,915, by way of social security contributions in respect of the period prior to the auction, plus interest. It also asked them to pay GRD 196,000 for the repatriation of the crew of Omega Kasos who had at one stage been left stranded in a foreign port by the previous ship-owners.
On 19 January 1984 the applicants challenged NAT’s order before the multi-member first instance civil court (polimeles protodikio) of Piraeus relying, inter alia, on the decision of the single-member first instance civil court of 6 April 1983.
On 30 July 1984 the multi-member first instance civil court of Piraeus found against the applicants, relying on Articles 86 § 6 (a) and 88 § 5 of Presidential Decree no. 913/1978 as interpreted in decisions Nos. 127/84 and 128/84 of the Court of Cassation. The applicants appealed.
On 30 July 1986 the Court of Appeal (efetio) of Piraeus upheld the appeal considering that the legislation that rendered all the previous owners of a ship responsible for debts to NAT did not cover owners who had acquired a ship put on compulsory sale by auction. The court of appeal relied on Articles 86 § 6 (a) and 88 of Presidential Decree no. 913/1978, as interpreted in its own decision No. 649/81 and in decisions Nos. 8/83 and 1118/85 of the Court of Cassation. The court also mentioned a number of decisions that accepted a different interpretation, which it was not prepared to follow (decision No. 128/84 of the Court of Cassation and its own decisions Nos. 370/85 and 460/85).
In 1987 Parliament enacted Law No. 1711/87, section 1 § 6 of which interpreted in an authoritative manner (afthendiki erminia) Article 88 § 5 of Presidential Decree no. 913/1978. According to Parliament’s interpretation, this provision also concerned owners who had acquired a ship put on compulsory sale by auction.
On 10 June 1988 NAT appealed against the decision of 30 July 1986 of the Court of Appeal of Piraeus to the Court of Cassation relying, inter alia, on Article 1 § 6 of Law No. 1711/87. The applicants submitted that the 1987 law should not be taken into consideration, inter alia, in the light of the Court’s Stran Greek Refineries and Stran Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B).
On 22 April 1993 NAT obtained an order for the seizure of the first applicant’s real property. The first applicant did not appeal (anakopi) against this order.
On 16 April 1997 the Court of Cassation found in favour of NAT. The Court of Cassation reasoned as follows: a person acquiring a ship put on compulsory sale by auction was responsible under Article 86 § 6 (a) of Presidential Decree no. 913/1978 for the previous owners’ debts to NAT; this reading of the provision was also supported (in the words of the Court of Cassation “a further argument in favour of this interpretation can be drawn”) by section 1 § 6 of Law No. 1711/87 interpreting in an authoritative manner Article 88 § 5 of Presidential Decree no. 913/1978. The Court of Cassation sent the case back to the Court of Appeal.
The proceedings are still pending and the first applicant’s property remains under seizure.
B.Relevant domestic law and practice
Presidential decree no. 913/1978 provides the following:
Article 86 § 6
“The following persons are jointly and severally liable, without having the right to require that the creditor should first try to execute against the principal debtor, for any contributions resulting from contracts with sailors on the crew list (naftoloyio) or, in general, contributions assessed by a public authority in accordance with the relevant special procedures (veveomenes):
a)all former ship-owners in respect of claims created before they transferred the ship’s ownership, as well as their successors; …”
Article 88 § 5
“The transfer of the ownership of a ship cannot be validly recorded in the registry for ships (nioloyio) if unaccompanied by a certificate that the ship does not have any outstanding debts to NAT … ”
Law no. 1711/87 provides the following:
Section 1 § 6
“The true meaning of the term ‘transfer’ in Article 88 § 5 of Presidential Decree no. 913/21978 is such that it includes the … compulsory sale by auction …”
Section 1 § 13
“Monies paid to NAT by successful bidders at auctions for the compulsory sale of ships are returned … only in cases in which, at the time of the publication of this law, a final judgment has been issued.”
The Court of Cassation in its decisions Nos. 127/84, 128/84, 509/85, 1145/87 and 952/94 considered that the legislation that rendered all the previous owners of a ship responsible for debts to NAT also covered owners who had acquired a ship put on compulsory sale by auction. The same line was followed by the multi-member first-instance civil court of Piraeus in decision No. 253/85, the Court of Appeal of Piraeus in decisions Nos. 370/85 and 460/85 and the Council of State (Simvulio Epikratias) in decision No. 2390/96.
However, in its decisions Nos. 8/83 and 1118/85 the Court of Cassation adopted the opposite view, which had also been taken by the Court of Appeal of Piraeus in decisions Nos. 445/81, 649/81 and 915/82.
COMPLAINTS
1.The applicants complain that the legislative interference in the litigation opposing them to NAT amounts to a violation of their right to a fair trial under Article 6 § 1 of the Convention.
2.The first applicant also complains under Article 1 of Protocol No. 1 about the seizure of his property.
THE LAW
1.The applicants complain that the legislative interference in the litigation opposing them to NAT amounts to a violation of their right to a fair trial under Article 6 § 1 of the Convention.
Article 6 § 1 provides 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...
The Government submit that the applicants lost the proceedings not because of the way that the domestic courts interpreted Article 88 § 5 of Presidential Decree no. 913/1978 but because of the way they interpreted its Article 86 § 6 (a). Although the Court of Cassation mentioned in its reasoning Article 88 § 5 as clarified by section 1 § 6 of Law 1711/87, it did that in order to draw an additional argument for the way it had already interpreted Article 86 § 6 (a) in an earlier part of its reasoning. The Court of Cassation’s understanding of Article 86 § 6 (a) was supported by numerous other court decisions, which the Court of Cassation would have followed any way. In any event, there is no indication that Law no. 1711/87 was enacted in order to prejudice the applicants’ chances of winning their case before the Court of Cassation. Section 1 § 6 of the law was of a general nature, the intention of Parliament was to resolve the dispute that had arisen concerning the notion of “transfer” in Article 88 § 5. The timing of the enactment of Law no. 1711/87 was not suspicious and the State was not a litigant in the proceedings opposing the applicants to NAT. In the light of all the above, the Government submit that this part of the application is manifestly ill-founded.
The applicants submit that Article 88 § 5 of Presidential Decree no. 913/1978, as interpreted by section 1 § 6 of Law no. 1711/87, provided the only argument in support of the Court of Cassation’s interpretation of Article 86 § 6 (a) of the Decree. The wording itself of Article 86 § 6 (a), which refers to a transfer by the owner, excludes the interpretation adopted by the Court of Cassation. In any event, even if the Court of Cassation only drew an additional argument from Article 88 § 5, this suffices to establish a violation of Article 6 § 1 of the Convention because it shows that the Court of Cassation’s decision was influenced by Law no. 1711/87. The case-law prior to the acquisition of the ship by the applicants did not support in any way the Court of Cassation’s understanding of the relevant provisions. The applicants had the right to rely on that case-law. In the applicants’ view, section 1 § 6 of Law no. 1711/87 was not a genuinely interpretative provision as shown by its § 13. This law was enacted in order to prejudice their chances of success in the litigation opposing them to NAT, a public body. This is shown by the fact that NAT appealed in cassation only after the law in question had been enacted, two years after the decision of the Court of Appeal. It was not at all certain that the Court of Cassation would have pronounced in favour of NAT. The effect of Law no. 1711/87, as well as the manner and time of its enactment, show that Article 6 § 1 of the Convention was violated. One additional factor is that section 1 § 6 of Law no 1711/87 is the only provision in Greek law that obliges a successful bidder to pay more than he bids at the auction.
In the light of the parties’ observations, the Court considers that this part of the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
2.The first applicant complains under Article 1 of Protocol No. 1 about the seizure of his property.
Article 1 of Protocol No. 1 provides 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 the applicant has not exhausted domestic remedies because he did not appeal against the order of 22 April 1993 for the seizure of his property. The seizure was imposed so as to ensure that NAT would be able to recover the money owed by the first applicant if the courts pronounced in its favour. The first applicant can have the order lifted by paying the money owed.
The first applicant claims that appealing against the order for seizure was not a remedy he should have exhausted because the competent court would have adjourned the examination of his appeal pending the outcome of the proceedings concerning the validity of NAT’s claim.
The Court notes that the proceedings concerning NAT’s claim are still pending before the Court of Appeal. It follows that, even assuming that the applicant is dispensed from exhausting the remedy indicated by the Government, he does not risk for the moment having the seizure order enforced against him. The Court therefore considers that the applicant cannot claim to be a victim of a violation of Article 1 of Protocol No. 1 and that this complaint is premature.
As a result, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaint concerning the enactment of Law no. 1711/87 and its influence on the decision of 16 April 1997 of the Court of Cassation;
DECLARES INADMISSIBLE the remainder of the application.
Erik FriberghAndrás Baka
RegistrarPresident
Full & Egal Universal Law Academy