Resolution ResDH(2004)81
concerning the judgments of the European Court of Human Rights relating to non-execution of domestic judicial decisions in Greece (case of Hornsby against Greece and other cases – see table in Appendix I)
(Adopted by the Committee of Ministers on 9 December 2004
at the 906th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 46, paragraph 2 of the Convention as amended by Protocol No. 11 (both referred to hereinafter as “the Convention”);
Having regard to the judgments of the European Court of Human Rights, in the case of Hornsby and other cases (see details in Appendix I) transmitted to the Committee of Ministers;
Recalling that all these cases originated in applications lodged against Greece and that the European Commission of Human Rights or the European Court of Human Rights declared admissible the applicants' complaints relating to the administration's failure to comply with final domestic judicial decisions (for more details, see Appendix II);
Recalling that the European Court subsequently held in all these cases that the administration's non-enforcement of final domestic judicial decisions amounted to violations of Articles 6, paragraph 1 or 13 of the Convention and/or of Article 1 of Protocol No. 1 (see details in Appendix II) and awarded the applicants sums in just satisfaction (see Appendix I);
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11, which Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;
Having invited the Government of Greece to inform it of the measures which had been taken in consequence of the European Court's judgments, having regard to Greece's obligation under Article 46 of the Convention (former Article 53) to abide by them;
Having satisfied itself that the Government of Greece paid all the applicants the sums awarded by the European Court as just satisfaction (see details in Appendix I, chapter I);
Considering the information provided by the Government of Greece as regards the individual measures adopted in the Hornsby case to allow the applicants to establish and operate an English language school in Rhodes in conformity with domestic judicial decisions, and the individual measure adopted in the Pialopoulos and others case to revoke the impugned expropriation decision of the Prefect in conformity with the domestic judicial decision, and having satisfied itself that the consequences of the violations found in the other five cases were fully repaired through payment to the applicants of the compensation awarded either by the European Court or by the competent domestic authorities (see Appendix I, chapter II);
Considering the extensive information provided by the Government of Greece as regards the general measures taken to prevent new violations of the same kind as those found in the present judgments (see Appendix I, chapter III);
Noting with satisfaction that following these judgments of the European Court, Greece has adopted a number of comprehensive constitutional, statutory and regulatory reforms to remedy the structural problem of the administration's non-enforcement of domestic judicial decisions and, in particular, that these reforms have introduced a new domestic procedure including specific remedies to ensure that judicial decisions are effectively complied with by all authorities;
Stressing with the European Court that the proper execution of judgments of any domestic court is necessary to avoid “situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention”;
Declares, after having taken note of the information supplied by the Greek government, that it has exercised its functions under former Article 54 and Article 46 of the Convention in these cases.
Appendix I to Resolution ResDH (2004)81
Information provided by the Government of Greece
concerning the measures taken to comply with the European Court's judgments
Payment of just satisfaction
Case
Application
No.
Date of the
judgment(s)
Amounts awarded
by the Court
Time-limit
for payment
Date of payment
Default interest
Hornsby
18357/91
19/03/1997
1/04/1998
Pecuniary and non-pecuniary damages: 25 000 000 drachmas
19/06/1997
9/07/1998
Waived by the applicants
Iatridis
31107/96
19/10/2000
Pecuniary damage:
21 791 578 drachmas;
Non-pecuniary damage:
5 000 000 drachmas;
Costs and expenses:
12,000,000 drachmas
19/01/2001
9/01/2001
No interest due
Antonakopoulos
Vortsela and Antonakopoulou
37098/97
14/12/1999
final on
14/03/2000
Pecuniary damage: 4 593 735 drachmas
21/06/2001
12/06/2000
No interest due
Georgiadis
41209/98
28/03/2000
final on
28/06/2000
Pecuniary damage: 11 043 786 drachmas;
Non-pecuniary damage:
1 000 000 drachmas; Costs and expenses: 1 000 000 drachmas
28/09/2000
28/08/2000
No interest due
Adamogiannis
47734/99
14/03/2002
final on
14/06/2002
None – just satisfaction was awarded by domestic authorities
Pialopoulos and others
37095/97
15/02/2001
and 27/06/2002
final on
15/05/2001 and 06/11/2002
Pecuniary damages:
3 850 000 euros;
Non-pecuniary damages:
40 000 euros
Costs and expenses:
30 000 euros
06/02/2003
04/02/2003
No interest due
Individual measures to achieve restitutio in integrum
In the Hornsby case, the violation of Article 6 found by the European Court was due to the authorities' failure to comply with judicial decisions granting the applicants a licence to establish and operate an English language school. Following the Court's judgments on the merits and just satisfaction, the Prefecture of the Dodecanese (Rhodes) granted the applicants, on 14 November 1998, the licence to establish the school at issue. Shortly afterwards, the applicants also received the necessary licences to operate their school. Thus, the consequences of the violation found were completely erased.
In the five other cases, the violations found by the European Court only resulted in pecuniary losses which were fully compensated through payment of compensation awarded either by the domestic authorities or by the European Court under Article 41 of the Convention. No further individual measures were thus required. In the Pialopoulos and others case, moreover, the impugned expropriation decision of the Prefect was revoked on 02/07/2002.
III.General measures
A.Introduction
The violations found by the European Court in these cases all highlighted a structural problem of non-execution of domestic judicial decisions by the Greek administration. Compliance with the European Court's judgments thus required the adoption, under the supervision of the Committee of Ministers, of comprehensive reforms with a view to preventing new violations similar to those found in these cases (violations of Articles 6 or 13 of the Convention and/or of Article 1 of Protocol No. 1).
B.Constitutional amendments to reinforce and extend the administration's obligation to comply with judicial decisions
At the time of the events in all these cases, Article 95, paragraph 5, of the Constitution already provided that the public administration was under an obligation to comply with judgments of the Supreme Administrative Court setting aside administrative decisions. A breach of this obligation, in principle, engaged the liability of any competent agent as specified by law. However, this constitutional guarantee proved to be insufficient in practice, as shown by a number of violations found by the European Court against Greece in 1997-2002.
In April 2001, Article 95, paragraph 5, of the Constitution was amended in order to highlight and reinforce the administration's obligation to comply with all judicial decisions. This provision now requires that the administration shall comply with judgments of courts of all jurisdictions and that the competent agents' liability as well as the measures necessary for ensuring the public administration's compliance with judicial decisions shall be specified by law.
Furthermore, according to new Article 94, paragraph 4, of the Constitution, some formerly executive functions, including the adoption of measures to ensure the administration's compliance with judicial decisions, may be assigned by law to civil or administrative courts. (see chapter C.1 below).
New Article 94, paragraph 4, also allows compulsory execution of judgments against the state, local authorities and legal entities of public law (see chapter C.2 below).
C.Legislative amendments implementing the constitutional obligation of the public administration to comply with judicial decisions
Following the above-mentioned constitutional amendment, a number of new statutory and regulatory provisions were adopted in order to implement the constitutional requirement that the administration must comply with judicial decisions.
1.New procedure to ensure the administration's proper compliance with judicial decisions
On 14 November 2002 a new Law 3068/2002 entered into force, which provides a special procedure to ensure the execution of domestic judicial decisions (Official Journal of the Hellenic Republic A 274). The effective application of this Law began with the promulgation of Presidential Decree 61/2004 (OJHR A 54) on 19 February 2004. The relevant provisions of the Law appear below (in unofficial translation). The relevant provisions of the Presidential Decree are summarised with other references in the footnotes for explanatory purposes.
Article 1
The State, local authorities and all other legal entities of public law shall be under obligation to comply promptly with judicial decisions and to proceed to all actions required for the discharge of this obligation and for the execution of judicial decisions.
Judicial decisions within the meaning of the preceding paragraph are all decisions of administrative, civil, criminal and special courts, which produce an obligation of compliance or are enforceable in accordance with the relevant provisions of procedural law and the conditions set down by each decision.
Article 2
1. Competence for the adoption of the measures provided by Article 3 for the administration's compliance with judicial decisions is assigned to a three-member council: a) of the Supreme Special Court[1], in respect of its judgments; b) of the Council of State [Supreme Administrative Court], in respect of its judgments and of those of regular administrative courts or other special courts; c) of the Court of Cassation, in respect of judgments of civil and criminal courts of all instances; and d) of the Court of Audit, in respect of its judgments[2].
2. The three-member council is composed of the President of the relevant court and of two [of its] members[3] (...).
3. With the exception of judgments delivered by the Supreme Special Court and by the Plenary of the relevant Supreme Court, judges who delivered the decision for which the administration's compliance procedure is initiated do not participate in the three-member council unless its formation by other judges is impossible.
Article 3
1. If the competent three-member council, upon application of the party concerned[4], ascertains a delay, omission or refusal of compliance or insufficient compliance with the rulings of a judicial decision, it shall invite the authority which is under obligation of compliance to submit within one month its views and the available evidence. Subsequently, if, after a relevant enquiry, it finds that the delay, omission or refusal of compliance or the insufficient compliance with the judicial decision is not justified, it shall invite the authority which is under obligation of compliance to comply with the decision within a reasonable deadline set by the council, which may not exceed three months. This deadline may be extended only once if the council deems that there is an important reason.
2. The three-member council may appoint and authorise a judge, of the rank of an appeal judge or of equivalent rank, to submit, even ex officio, an opinion and to provide the authority under obligation of compliance with the necessary assistance regarding the most appropriate manner of compliance with the decision. The administrative authority under obligation of compliance may always request from the appointed judge directions relating to the appropriate manner of compliance with the decision.
3. If the authority under obligation of compliance fails to comply with the decision within the time-limit set, the three-member council shall verify the administration's non-compliance with the judicial decision and shall determine a financial amount to be paid to the party concerned, as a sanction for the administration's non-compliance. Criteria for the determination of this amount shall be the nature and significance of the litigation in
connection with which the unexecuted decision has been delivered, the circumstances of non-compliance and its consequences for the aggrieved person, the length of non-compliance and the deterrent character of the sanction. If after the imposition of the monetary sanction the administration still fails to comply with the judicial decision, the three-member council may impose a new monetary sanction, following the same procedure provided for in this Article[5].
4. The decision of the three-member council specifying the amount of monetary sanction against the administration is subject to execution in accordance with the relevant provisions on payment warrants. Receipt of this amount is also attainable through compulsory execution in accordance with Article 4.[6]
5. The amount of monetary sanction shall be incurred by the Ministry, local authority or legal entity of public law in charge of the authority which has failed to comply. For the coverage of this expense, there shall be a special annual credit in the state budget, in the budget of local authorities and the budget of all other legal entities of public law. If no such credit has been provided for in the budget or the existing credit is insufficient or has been exhausted, the credit shall be entered or transferred in accordance with the relevant provisions.
6. In the case of a pecuniary judgment, the application provided in the first paragraph shall be submitted only if the compulsory execution attempted by the payee was unsuccessful or it is evident that it would be unsuccessful.[7]
7. At the end of each year the three-member council shall prepare a special report for the cases brought before it, concerning the administration's non-compliance with judicial decisions, which shall be submitted to the Prime Minister, the President of the Parliament, the Ministry of Justice and the Minister of Interior, Public Administration and Decentralisation.
8. Any other matter pertaining to the operation of the three-member council and the manner and procedure of establishing the administration's non-compliance, as well as the imposition and receipt of the monetary sanction, shall be regulated by a presidential decree issued upon the proposal of the Ministers of Economy and Finance and of Justice.[8]
Introduction of compulsory execution against the state and legal entities of public law
Article 8 of Law 2095/1952, formerly in force, did not allow compulsory execution against the state, local authorities and legal entities of public law.
Following the European Court's judgment in the Hornsby case, domestic courts set aside Article 8 of Law 2095/1952 as unconstitutional and accepted the possibility for individuals to request compulsory execution against the state, local authorities and legal entities of public law, in order to satisfy their financial claims (see judgment of 25/05/1998 of the plenary of the Court of Audit; judgment 3684/1998 of the first instance court of Athens; judgment 360/1998 of the first-instance court of Thiva; judgment 1212/1999 of the first-instance court of Piraeus).
This change in the case-law was later confirmed by the above-mentioned constitutional amendment allowing for compulsory enforcement of judgments against the state, local authorities and legal entities of public law (new Article 94, paragraph 4). Subsequently, the plenary Court of Cassation followed in substance the European Court's jurisprudence stating that Article 6 of the Convention also guarantees “the right to compulsory execution without which access to a tribunal would be devoid of its value and usefulness” (judgment 21/2001).
Article 4 of Law 3068/2002 further specified that financial claims against the state, local authorities and all other legal entities of public law may be satisfied through seizure of their property. These new legal provisions read as follows:
Article 4
1. Compulsory execution for the satisfaction of a monetary claim against the state, local authorities and the other legal entities of public law shall be done by seizure of their property. No seizure is possible in respect of claims originating in a public law contract or in relation to claims of a monetary or other character related to urgent special public services.
2. Compulsory execution against the state or legal entities of public law may be initiated after the expiry of sixty days from the date of notification of the decision to the Minister competent for the payment or to the representative of the legal entity of public law.
3. The eighth book of the Code of Civil Procedure regulates all other relevant details.Increased civil liability on the part of the state
A person injured by the state's or other public entities' non-compliance with a judicial decision is entitled to lodge a civil action for damages on the basis of Articles 104, 105 and 106 of the Introductory Law to the Civil Code. These Articles provide that the state shall be liable in accordance with the provisions of the Civil Code concerning legal persons, “for acts or omissions of state organs, pertaining to legal relations governed by private law, or to state property”. They also provide that the state is under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, and that the person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.
While acknowledging difficulties in application of these provisions at the time of the events in Hornsby and other similar cases, the government stresses that the situation has changed with the constitutional revision and adoption of Law 3068/2002. The state's, local authorities' and other public legal entities' civil liability can henceforth be more easily established due to the extension of the administration's obligation to comply with all judicial decisions, and more effectively enforced due to new possibilities of compulsory execution against them. This is in particular so, taking into account the direct effect granted since the late 90s to the Convention and the European Court's jurisprudence in Greek law (see, inter alia, the Committee's ResolutionDH(99)714 in the case of Papageorgiou against Greece).The aforementioned provisions of the Civil Code can therefore henceforth more effectively contribute to deter against – and compensate for – the non-execution of judicial decisions.
4.Reinforced disciplinary and civil liability of public servants
The disciplinary liability of civil servants responsible for the non-execution of judicial decisions has also been reinforced by Article 5 of Law 3068/2002, which reads as follows:
Article 5
1. Failure to comply with the obligations provided for in [the present law] or incitement to non-compliance constitutes a special disciplinary offence for every civil servant involved. If there is an omission of compliance by a civil servant with the purpose of making an unlawful pecuniary gain, the disciplinary sanction of temporary or final suspension shall be imposed.
2. Disciplinary proceedings under the present Article shall also be initiated by way of transmission to the competent disciplinary organ of the relevant file by the chairperson of the three-member council which, in this case, shall be kept informed about the progress of the disciplinary proceedings until the delivery of a final decision.
3. In case where a disciplinary sanction is imposed, in accordance with the previous paragraphs, civil servants shall bear also civil liability, according to the provisions of Articles 105 and 106 of the Introductory Law of the Civil Code[9].
D.Conclusion
The government believes that the aforementioned measures introduce effective and workable procedures to prevent similar violations of Articles 6, 13 or of Article 1 of Protocol No 1 in the future. It appears, in particular, that the establishment of the special judicial councils, their independent status, as well as their powers to impose sanctions and to provide the necessary guidance to the administration, guarantee an effective control of the latter's compliance with decisions of all courts.
Accordingly, the government considers, in view of all individual and general measures adopted, that Greece has satisfied its obligations under Article 46, paragraph 1, of the Convention (former Article 53) to abide by the Court's judgments in the present cases.
Appendix II
to Resolution ResDH (2004)...
Details concerning specific facts of the cases, the Commission's or Court's decisions on admissibility and judgments
Horsnby against Greece
The case originated in an application (No. 18357/91) against Greece, lodged with the European Commission of Human Rights on 7 January 1990 by Mr David Hornsby and Mrs Ada Ann Hornsby, British nationals. The Commission declared admissible the complaint concerning a violation of Article 6, paragraph 1, of the Convention on account of the education authorities' refusal to comply with judgments of the Greek Supreme Administrative Court, following an advisory opinion of the European Court of Justice, by not granting the applicants a licence to operate an English language school.
In its judgment of 19 March 1997 the European Court held, by seven votes to two, that there had been a violation of Article 6, paragraph 1, of the Convention. The Court awarded the applicants just satisfaction (see Appendix I above).
Iatridis against Greece
The case originated in an application (No. 31107/96) against Greece, lodged with the European Commission of Human Rights on 28 March 1996 under former Article 25 of the Convention by Mr Georgios Iatridis, a Greek national. The Commission declared admissible the applicant's complaints (relying on Article 1 of Protocol No.1 and Article 8) that the continuing occupation by the Ilioupoli municipal authorities of the cinema he had formerly operated and the refusal to enforce a court decision overturning the order to evict him from the cinema premises constituted a de facto expropriation in breach of the Convention and an interference with his right to the enjoyment of his possessions. The Commission also declared admissible the applicant's complaint (relying on Articles 6, paragraph 1 and 13) that he had no effective remedy against the lack of response from the authorities which could with impunity refuse to comply with judicial decisions.
In its judgment of 25 March 1999 the Court held unanimously that there had been a violation of Article 1 of Protocol No. 1 to the Convention because of the interference by the state with the applicant's right to the peaceful enjoyment of his possessions despite the existence of a judicial decision in his favour; it held by sixteen votes to one that there had been a violation of Article 13 of the Convention because of the non-existence of an effective remedy for the aforementioned violation; it held unanimously that it was not necessary to rule on the complaints made under Articles 6, paragraph 1, and Article 8 of the Convention. The Court awarded the applicant just satisfaction (see Appendix I above).
Antonakopoulos, Vortsela and Antonakopoulou against Greece
The case originated in an application (No. 37098/97) against Greece, lodged with the European Commission of Human Rights on 28 February 1997 under former Article 25 of the Convention by Mr Rizos Antonakopoulos, Mrs Georgia Vortsela and Mrs Angeliki Antonakopoulou, Greek nationals. The Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints regarding: a violation of their right to a fair trial, on the grounds of the administration's refusal to implement a final and enforceable decision of the Court of Audit concerning payment of pensions, and of the state's legislative intervention in the administration of justice in order to influence in its favour the outcome of litigation to which it was a party; in this respect, there was also a violation of the applicants' right to the peaceful enjoyment of their possessions.
In its judgment of 14 December 1999 the Court unanimously held that there had been a violation of Article 6, paragraph 1, of the Convention and of Article 1, of Protocol No. 1. The Court awarded the applicants just satisfaction (see Appendix I above).
Georgiadis against Greece
The case originated in an application (No. 41209/98) against Greece, lodged with the European Commission of Human Rights on 26 March 1998 under former Article 25 of the Convention by Mr Dimitrios Georgiadis, a Greek national. The Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints that the competent authorities had refused to abide by a judgment of the Court of Audit, thus failing to recognise his right to an effective judicial protection of claims regarding his civil rights, and that the refusal by the competent authorities to award him the complementary pension, to which he had been recognised to be entitled, violated his right to the peaceful enjoyment of his possessions.
In its judgment of 28 March 2000 the Court unanimously held that there had been a violation of Article 6, paragraph 1, of the Convention and of Article 1 of Protocol No. 1. The Court awarded the applicant just satisfaction (see Appendix I above).
Adamogiannis against Greece
The case originated in an application (No. 47734/99) against Greece, lodged with the European Court of Human Rights on 8 March 1999 under Article 34 of the Convention by Mr Ioannis Adamogiannis, a Greek national. The Court declared admissible the complaint, under Article 6, paragraph 1, concerning the refusal of the administration to comply with a judgment of the Court of Audit awarding the applicant a complementary pension. In its judgment of 14 March 2002 the Court unanimously held that there had been a violation of Article 6, paragraph 1, of the Convention. The Court did not award the applicant just satisfaction as he had agreed to receive the amounts due, in accordance with the Finance Minister's decision of 30 June 2000, and had submitted no specific claim under Article 41 of the Convention.
Pialopoulos and others against Greece
The case originated in an application (No. 37095/97) against Greece, lodged with the European Commission of Human Rights on 7 March 1997 under former Article 25 of the Convention by four Greek nationals, Mr Michael Pialopoulos, Mr Aristophanes Alexiou, Mr Nikolaos Georgakopoulos and Mrs Aristea Pialopoulos. The Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints that the applicants had been unable to enjoy their property since 1987, as a result of a series of building prohibitions and attempted expropriations and that the authorities had failed to comply with a court decision revoking one of the expropriations.
In its judgment of 15 February 2001 the European Court unanimously held that there had been violations of Article 1 of Protocol No. 1 and Article 6, paragraph 1, of the Convention. The Court awarded the applicants just satisfaction (see Appendix I above).
[1] The Special Supreme Court is composed of the Presidents and members of the Supreme Courts of all jurisdictions. One of its duties is to settle issues of constitutionality or application of legislation in cases where there are contradictory judgments issued by the Supreme Courts.
[2] The details concerning the membership and procedure to be followed before these councils are provided for by Presidential Decree 61/2004 (OJHR A 54).
[3] According to Article 1, paragraph 3, of Presidential Decree 61/2004 the term of office of the council members begins on 1 January, lasts two years and is renewable.
[4] According to Article 2, paragraph 1, of Presidential Decree 61/2004 the application for the ascertainment of the administration’s non-compliance with a judicial decision is lodged gratis with the registry of the court which delivered the decision or with the registry of the relevant Supreme Court, which shall forward it to the council without delay. The council draws up a report on the application and proceeds to the action provided for by Article 3, paragraph 1, of Law 3068/2002, within two months after the lodging of the application (Article 3, paragraph 1, of the above Presidential Decree).
[5] According to Article 8, paragraph 2, of Presidential Decree 61/2004 the claim provided for by Article 3, paragraph 3, of Law 3068/2002 is subject to a five-year limitation, beginning from the recording of the decision of the three-member council in the special book as provided by the above Decree.
[6] See Chapter C.2 below.
[7] See Article 4 below.
[8] This Presidential Decree (No. 61/2004 of 19/02/04) is summarised in the footnotes above.
[9] Paragraph 3 was added by Article 11 of Law 3242/2004 (OJHR A 102, 24/05/2004); see also chapter 3 above.
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