Published on 20 March 2023
THIRD SECTION
Application no. 24958/21
Ektoras BARTZOPOULOS and Others
against Greece
lodged on 6 May 2021
communicated on 27 February 2023
SUBJECT MATTER OF THE CASE
The applicants are the grandchildren and heirs of the late Stylianos Andronikos Vlastos, a lawyer who worked, inter alia, for the Embassy of Iraq in Athens and passed away on 22 June 2020.
In January 1991, Mr Vlastos undertook legal proceedings against the State of Iraq for non-payment of legal fees for services rendered. The domestic courts ordered the defendant to pay the equivalent of 60,763.71 euros. Mr Vlastos then asked for permission from the Greek Minister of Justice to enforce the judgment. This permission is mandatory to initiate enforcement proceedings against the Greek State (Article 923 of the Greek Code of Civil Procedure (CCP)).
In October 1999, in the absence of execution, Mr Vlastos introduced an application for annulment before the Council of State against the Minister’s tacit refusal to grant him permission to execute.
On 8 January 2007 the plenary of the Council of State rejected his application for annulment as inadmissible, as the attacked tacit refusal was an act of government and could not as such be subject to direct judicial review (judgment no. 22/2007). Part of the majority (11 judges, the majority being 21) held that Mr Vlastos was not deprived of his right to a fair trial, since he could introduce an action for damages against the Greek State.
In June 2007, Mr Vlastos introduced an application before the Court (application no. 28803/07, Vlastos v. Greece, 16 April 2009). He complained, under Article 6 § 1 of the Convention, of the length of the proceedings before the domestic courts and under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the immunity granted by the Greek courts to the Iraqi State violated the principle of equality of arms and his right to peaceful enjoyment of his property.
The Court found a violation of Article 6 § 1 concerning the length of proceedings and declared the remainder inadmissible. It found, inter alia, that the restriction imposed was proportionate to the aim pursued (the respect of international law), as the measures reflected the rules of international law in the field of State immunity.
On 13 September 2011 Mr Vlastos introduced an action for damages against the Greek State (Article 105 of the Introductory Law of the Civil Code (ILCC)), claiming 659,362.56 euros, as well as 40,000 euros for moral damage.
On 15 September 2015 the First Instance Administrative Court of Athens rejected the action for damages on the grounds that judgment no. 22/2007 did not constitute a res judicata in so far as the possibility for action for damages was concerned (judgment no. 15571/2015). The court added that the possibility that the competent Minister gives permission to enforce could not be excluded in the future. It also held that the Minister’s competence under Article 923 CCP pursued a “legitimate public interest”, that is the non‑disturbance of Greek-Iraqi relations and could not give rise to State liability, as the Minister was not responsible for a serious and manifest error.
On 18 November 2016 an appeal against that judgment was dismissed by the court of appeal (judgment no. 3206/2016). The court of appeal further held that the Minister’s refusal was not subject to judicial review, as it related to “political considerations, such as the non-disturbance of the country’s good relations with Iraq, in the present case”.
On 23 February 2017, Mr Vlastos appealed on points of law before the Council of State. He argued that his case was admissible as it was contrary to: a) judgment no. 22/2007 of the Plenary of the Council of State, “according to which there is an obligation of the Greek State to compensate for damage resulting from the refusal of the competent Minister to grant permission to enforce” and b) judgments 1501/2014 and 5504/2012 of the Council of State, according to which there is an obligation of the Greek State to compensate the damage caused by its organs.
On 5 October 2020 the Council of State rejected the appeal on points of law as inadmissible (Article 12 of law no. 3900/2010) (judgment no. 1942/2020). It mainly considered, firstly, that the right to claim compensation was not expressed by the court’s majority but only by 11 judges. Secondly, it added that the legal issues in judgment no. 22/2007 were different to those at the present case, which concerned the State’s liability to provide compensation should a citizen be denied his right to enforce a judgment in his favour. Thirdly, it held that Mr Vlastos had in the present case invoked Article 105 ILCC and not Article 4 § 5 of the Constitution (Greek citizens’ obligation to contribute to public charges in proportion to their means), which was the basis of his claim resulting in judgment no. 22/2007.
On 22 June 2020 Mr Vlastos passed away. Judgment no. 1942/2020 was finalised on 19 November 2020.
Invoking Article 6 § 1 of the Convention, the applicants complain that the Council of State demonstrated excessive formalism in applying Article 12 of law no. 3900/2010 (judgment no. 1942/2020).
Under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicants complain that, following judgment no. 1942/2020 of the Council of State, it was neither possible to enforce final and binding judgments against the Iraqi State nor receive compensation.
QUESTIONS TO THE PARTIES
1. Did the applicants, heirs of Mr Vlastos, have locus standi to lodge the application on his behalf and was the application thus compatible ratione personae with the provisions of the Convention in this respect, as required by Article 34?
2. Did the manner in which the Council of State, in its judgment no. 1942/2020, applied the provisions relating to the admissibility criteria for lodging an appeal on points of law violate the applicants’ right of access to a court, guaranteed under Article 6 § 1 of the Convention?
3. Has there been a violation of the applicants’ right to effective judicial protection, as required by the Article 6 § 1 of the Convention, due to the alleged impossibility, following judgment no. 1942/2020 of the Council of State, to, on the one hand, enforce the judgment against the Iraqi state, and, on the other hand, receive compensation by the Greek State?
4. Has there been a violation of the applicants’ right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention, following judgment no. 1942/2020 of the Council of State?
List of applicants
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Ektoras BARTZOPOULOS
2018
Greek
Athens
2.
Dimosthenis GATSIOS
2006
Greek
Athens
3.
Stylianos GATSIOS
2011
Greek
Athens
4.
Zoi GATSIOU
2007
Greek
Athens