AS TO THE ADMISSIBILITY OF
Application No. 22045/93
by Kostas BEIS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 March 1993 by
Kostas BEIS against Greece and registered on 11 June 1993 under file
No. 22045/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
22 June 1994 and the observations in reply submitted by the
applicant on 20 July 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1933 and resident of
Athens. He is a professor of civil procedural law at the University of
Athens.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
1. The particular circumstances of the case
In March 1992 the head of the legal service of the Technical
Chamber of Greece (Tehniko Epimelitireio Ellados - hereafter TEE), a
legal entity of public law enjoying all the privileges and immunities
of the State, entrusted the applicant with the drafting of two expert's
opinions concerning proceedings brought against the TEE by Messrs. P
and S. It was agreed that the applicant would receive a fee of GDR
7.500.000.
The applicant submitted his opinions on 22 April 1992. However,
the fee agreed was not paid. According to the applicant, the deputy
(paredros) of the Audit Court (Elegtiko Sinedrio) did not approve the
payment on the ground that the opinions could have been drafted by the
legal staff of the TEE.
On 4 May 1992 the Committee of Management of the TEE set up a
seven-member expert committee which would have advised the TEE on a
number of issues against a fee of GDR 10.500.000. The applicant was one
of the members of this committee and one of the issues the committee
would have provided advice on was the actions brought against the TEE
by P and S.
On 8 May 1992 five of the members of the committee notified the
legal service of the TEE that the committee had agreed to delegate to
the applicant the task of advising the TEE on the proceedings brought
against it by P and S. The applicant would receive GDR 7.500.000 out
of the total sum offered by the TEE to the committee. The remaining
issues in the committee's mandate would be dealt with by the other
members of the committee, who would receive the remaining GDR
3.000.000.
On 12 June 1992 the TEE acknowledged receipt of two expert
opinions drafted by the applicant concerning the proceedings brought
by P and S against the TEE.
On 9 July 1992 the Committee of Management of the TEE decided to
pay the applicant GDR 7.500.000. On 29 July 1992, however, the Audit
Court commissioner (epitropos) refused to authorise the payment, on the
ground that the establishment of the expert committee had been
unnecessary and therefore illegal. The TEE disagreed with the
commissioner's opinion and on 16 September 1992 the case was referred
to one of the Chambers of the Audit Court.
On 5 October 1992 the applicant lodged with the judge of the
Court of First Instance (Monomeles Protodikeio) of Athens an
application for an order for payment (diatagi pliromis) against the
TEE, by which he sought recovery of the agreed remuneration for the two
expert opinions he had submitted. His application was granted on
12 October 1992 (order of payment No. 12207/92).
On 21 October 1992 the applicant served the order on the TEE
together with formal notice to pay. However, no payment was made. The
order was served again on 11 November 1992, after the expiration of the
time limit in which the TEE could have filed an opposition (anakopi).
On 24 November 1992 the First Chamber of the Audit Court
confirmed that no payment should be made. The Court considered that,
although the setting up of the committee was legal, the relevant rules
did not provide for the delegation of part of the committee's
responsibilities to one of its members.
On 3 December 1992, after the payment order had acquired force
of res judicata, the applicant submitted to the Bank of Greece a formal
request for compulsory seizure of the deposited TEE's assets.
In the meantime the TEE indicated once more its wish to satisfy
the applicant on the basis of the order of payment. On
12 February 1993, however, the competent Commissioner of the Court of
Auditors refused to authorise the payment relying on a decision of the
Plenary of the Court of 6 March 1985 to the effect that the res
judicata force of the orders for payment being limited, they cannot be
assimilated to a final court decision and, as a result, they do not
bind the Court of Auditors.
2. Relevant domestic law and practice
A. The procedure for issuing an order for payment is set forth in
Articles 623 to 634 of the Code of Civil Procedure.
Article 623 provides:
"A person may apply for an order for payment, under the
special procedure of Articles 624 to 634, in respect of
claims to specific sums of money ..... the existence of
which is proven by deed done by a public authority or
privately".
Article 625 provides:
"The justice of the peace (eirinodikis) is competent to
issue orders for payment in respect of claims otherwise
coming within his jurisdiction. The judge of the court of
first instance is competent to issue orders for payment in
all other cases. No hearing is held on the application for
an order for payment".
Article 627 provides:
"The judge decides on the application as soon as possible,
without notifying the debtor ...."
Article 629 provides:
"The judge grants the application if it is well founded in
law and in fact, orders the debtor to pay the sum due as
well as the court costs ......"
Article 631 provides:
"An order for payment is a title which can be executed".
Article 632 para. 1 provides:
"The debtor against whom an order has been issued has the
right to lodge an opposition within fifteen days from its
notification. The opposition is lodged with the court which
is competent ratione materiae to hear the case ....."
Article 633 para. 2 provides:
"If no opposition is lodged within the time-limit provided
by law, the person in favour of whom the order has been
issued may notify the debtor once again. The latter has the
right to lodge an opposition within a period of fifteen
days from notification ....... If no opposition is lodged,
the order for payment acquires force of res judicata ......
B. The privileges of the TEE are governed by law 2097/52 and the
presidential decree of 27.11/14.12.1926.
Article 8 para. 1 of law 2097/52 provides:
"Court decisions ordering the payment of sums of money or
court costs cannot be enforced against the State .....
Article 41 of the presidential decree of 27.11/14.12.1926
provides:
"The TEE enjoys all the privileges of the State ....."
C. The procedure for seizing assets found in the possession of a
third person is governed by Articles 982 to 991 of the Code of Civil
Procedure.
Article 985 paras. 1 and 3 provide:
"Within eight days from notification the third person must
declare whether he is in possession of the claim or good
seized .....
When the third person does not make the above-mentioned
declaration, he is deemed to have made a negative
declaration. If no declaration is made or if the
declaration is inaccurate, the third person must compensate
the person who has attempted to seize the asset".
Article 986 provides:
"Within thirty days from the date of the declaration of
Article 985, the person who has attempted to seize the
asset has the right to lodge an opposition .... He may
simultaneously ask for compensation under Article 985 para.
3".
COMPLAINTS
1. The applicant argues that, as a result of the non-execution of
a payment order, he has been deprived of the only effective means of
obliging the TEE to pay his remuneration. As a result, his right to
peaceful enjoyment of his possessions, as guaranteed by Article 1 of
Protocol No. 1, was violated.
2. The applicant complains that the impossibility of obtaining
enforcement of the order against the TEE amounts to a violation of his
right to have his civil rights and obligations effectively determined
by a court in accordance with Articles 6 para. 1 and 13 of the
Convention. He also complains that the Court of Auditors, which refuses
to authorise the payment of the sum due, is not an Article 6 court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 March 1993 and registered
on 11 June 1993.
On 2 March 1994 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on admissibility and merits.
The Government submitted their observations on 22 June 1994,
after an extension of the time-limit fixed for this purpose, and the
applicants' observations in reply were submitted on 20 July 1994.
THE LAW
1. The applicant complains that, as a result of the non-execution
of a payment order, he has been deprived of the only effective means
of obliging the TEE to pay the remuneration due to him. As a result,
his right to peaceful enjoyment of his possessions, as guaranteed by
Article 1 of Protocol No. 1 (P1-1), was violated.
The Commission recalls that Article 1 of Protocol No. 1
(P1-1) lays down, with certain restrictions, that every natural or
legal person is entitled to the peaceful enjoyment of his possessions.
The Government contend that the judge who issues an order for
payment does not determine an Article 1 of Protocol No. 1 (P1-1) right,
since he does not deliver justice. The order is not a court judgment
and is not pronounced pursuant to a judicial procedure with all the
appropriate procedural guarantees. It has very limited consequences and
does not create an irrebutable presumption that the claim exists and
that the assessment of the judge is correct. The Court of Auditors,
which is entrusted with the supervision of the legality of all public
expenditure, cannot in such circumstances exercise its functions and
authorise a public body to comply with an order of payment issued
against it.
The existence, moreover, of a claim depends on the legality of
the underlying contractual relationship. As a result, it cannot be
concluded, on the basis of an order for payment, that a claim exists,
when the competent organs of control, in casu the Court of Auditors,
have not accepted the legality of this claim.
The Government further argue that an application for a payment
order is not the only remedy by which one may obtain satisfaction under
Greek law. Creditors can always lodge an ordinary civil action (agogi)
for recovery. Final court judgments bind the Court of Auditors. If the
applicant had instituted proceedings before the civil courts, he would
have obtained satisfaction from the TEE. The latter was willing to pay
and the Court of Auditors would have authorised the payment.
As regards the impossibility of obtaining enforcement against
public bodies, the Government consider that the applicant has not
exhausted domestic remedies in that he did not file an opposition
against the failure of the Bank of Greece to react to his request for
the seizure of the TEE's assets deposited with it. In any event, the
Government argue that it is in the public interest not to allow
enforcement against public bodies. Even if there was an interference
with possessions, it would have been justified under Article 1 para.
2 of Protocol No. 1 (P1-1-2).
The applicant submits that an order for payment which has
acquired force of res judicata is a full substitute for normal
effective judicial protection. Before issuing the order, the judge will
have to be satisfied that the application is well founded in law and
in fact. The applicant admits that the order for payment in itself
cannot be assimilated to a court judgment. However, the law grants the
person against whom the order is made the right to lodge an opposition.
Thereupon a court judgment is issued. If the applicant had tried to
lodge civil proceedings, his action would have been rejected given the
res judicata force of the order of payment. Alternatively, it would
have been rejected for lack of legal interest, as he had already
obtained a payment order.
The applicant further argues that the exercise by the Court of
Auditors of its control powers cannot cancel property rights deriving
from a contractual relationship between an individual acting in good
faith and a public authority, especially when these rights have been
recognised by a judge whose assessment has acquired res judicata force.
As regards, finally, the impossibility of obtaining enforcement
against public bodies, the applicant considers that the remedy
suggested by the Government is not effective. The Greek courts have
constantly held that the rules providing for the privilege of public
bodies are in accordance with the provisions of the Greek Constitution
which guarantee the right of effective judicial protection. The
applicant does not consider that the interference with his property
rights is justified.
The Commission also recalls that, in accordance with its case-
law, a claim can constitute a "possession", within the meaning of this
provision, provided that it is sufficiently established (Stran
Refineries S.A. and Stratis Andreadis v. Greece, Comm. Report 12.5.93,
unpublished, para. 78, No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146;
No. 7775/77, Dec. 5.10.78, D.R. 15 p. 143).
It also notes that the Government have indicated a number of
remedies which the applicant should have, in their view, exhausted
before his application could be examined by the Commission. More in
particular, they have argued that the applicant should have filed an
opposition against the failure of the Bank of Greece to react to his
request for the seizure of the TEE's assets deposited with it.
However, the Commission recalls that, in accordance with its
constant case-law, if it cannot be shown that a remedy presents at
least some minimal prospect of success, the individual is not required
to pursue it (No. 8378/78, Dec. 14.5.80, D.R. 20 p. 168). It further
notes that the applicant has argued that the Greek courts have always
considered that the rules providing for the privilege of public bodies
are in accordance with the provisions of the Greek Constitution which
guarantee the right of effective judicial protection. The Government
have not disputed the existence of such case-law. In these
circumstances, the Commission considers that the applicant can be
excused for not having pursued the remedy suggested by the Government.
The Commission further notes that the Government argue that the
applicant should have instituted ordinary civil proceedings before the
courts. In accordance with the Commission's constant case-law, an
applicant who has exhausted a remedy which is apparently effective and
sufficient cannot be required to try others which were available but
probably ineffective (No. 11932/86, Dec. 9.5.88, D.R. 56 p. 199). The
Commission considers that the main issue arising in this connection is
whether an application for a payment order was an effective and
sufficient remedy in the circumstances of the applicant's case.
This question is, however, related to the substance of the
applicant's complaints under Article 1 of Protocol No. 1 (P1-1). These
complaints raise serious questions of fact and law which are of such
complexity that their determination should depend on an examination of
the merits. This part of the application cannot, therefore, be regarded
as inadmissible within the meaning of Article 27 (Art. 27) of the
Convention.
2. The applicant complains that the impossibility of obtaining
enforcement of the order against the TEE amounts to a violation of his
right to have his civil rights and obligations effectively determined
by a court in accordance with Articles 6 para. 1 and 13 (Art. 6-1, 13)
of the Convention. He refers in this connection to TEE's immunity from
execution and to the fact that, in accordance with the case-law of the
Greek courts, creditors are not allowed to seize assets of debtors
which are deposited with banks. He also complains that the Court of
Auditors, which refuses to authorise the payment of the sum due is not
an Article 6 (Art. 6) court, as it is called upon to review its own
actions.
The Commission recalls that Article 6 (Art. 6) of the Convention
guarantees the right to a fair hearing in the determination of one's
civil rights and obligations. Article 13 (Art. 13) of the Convention,
moreover, guarantees everyone whose rights and freedoms as set forth
in the Convention are violated an effective remedy before a national
authority.
The Government consider it doubtful whether the applicant can
invoke Article 6 (Art. 6) of the Convention, since the dispute which
led to the issuing of the order of payment is neither real nor serious.
The real basis of the applicant's contractual relationship with the TEE
is the agreement of March 1992, which, however, did not form the
subject matter of the dispute of which he complains. In any event,
proceedings for an order for payment do not involve the determination
of civil rights and the applicant has not exhausted domestic remedies
since he never instituted ordinary civil proceedings. He also failed
to lodge an opposition against the failure of the Bank of Greece to
react to his request for the confiscation of the TEE's assets deposited
with it.
Insofar as the applicant's complaint under Article 13
(Art. 13) of the Convention is concerned, the Government further argue
that the applicant could have asked the Court of Auditors to revoke the
decisions it issued in his case.
The applicant considers that his civil rights have been
determined in the proceedings for a payment order. The remedies
suggested by the Government in this connection are not effective.
As regards the Government's submissions regarding the possibility
of asking the Court of Auditors to revoke its decision, the applicant
argues that his request would have no prospects of success, given the
constant case-law of the Court of Auditors concerning the non-
authorization of expenditure to comply with a payment order.
The Commission notes that the Government argue that the applicant
should have lodged an opposition against the failure of the Bank of
Greece to react to his request for the confiscation of the TEE's assets
deposited with it. In the light, however, of the constant case-law of
the Greek courts referred to above in connection with the applicant's
complaint under Article 1 of Protocol No. 1 (P1-1), the Commission
considers that this could not constitute an effective remedy.
The same is, moreover, true of the second remedy referred to by
the Government, namely submitting a request to the Court of Auditors
to revoke the decisions it issued in the applicant's case. In
accordance with the constant case-law of the Court of Auditors to which
the applicant refers and which is not disputed by the Government, the
Court of Auditors does not consider itself bound by the res judicata
effect of orders for payment. In this light, a request for
reconsideration by the applicant would not have remedied in all
likelihood the alleged violation.
The Commission further notes that the Government submit that the
applicant should have instituted ordinary civil proceedings. In
accordance, however, with the Commission's case-law, the applicant
would be excused for not pursuing this remedy if the proceedings he had
already instituted for the recovery of his fees, by applying for a
payment order, were considered to be effective and sufficient in the
circumstances of the applicant's case.
This question is, however, related to the substance of the
applicant's complaints under Articles 6 and 13 (Art. 6, 13) of the
Convention. These complaints raise serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. This part of the application cannot,
therefore, be regarded as inadmissible within the meaning of Article
27 (Art. 27) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary Acting President
to the First Chamber of the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy