FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 72179/01
by Despina CHATZI-VALIANOU
against Greece
The European Court of Human Rights (First Section), sitting on 3 April 2003 as a Chamber composed of
MrsF. Tulkens, President,
MrC.L. Rozakis,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 18 July 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Despina Chatzi-Valianou, is a Greek national, who was born in 1939 and lives in Iraklio. She is represented before the Court by Mr K. Chrysogonos, a lawyer practising in Salonika. The Government are represented by Mr V. Kyriazopoulos, Senior Adviser at the State Legal Council and Mr I. Bakopoulos, Legal Secretary at the State Legal Council.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 January 1985 the applicant was re-appointed to the position of assistant in the Classical Archaeology section of the Department of Philosophy of the Aristotle University of Salonica. The re-appointment was made under the Rector’s Act no 5642 of 31 January 1985. The applicant had resigned from this post on 7 January 1969 and from 17 June 1970 she worked as an archaeologist in the 23rd Department of Classical and Prehistoric Antiquities, which was under the direction of the Ministry of Culture. She continued to occupy this post after her re-appointment to the University’s Classical Archaeology section.
According to Article 7 § 1 of Law 1966/1991: “All supervisors, assistants and scientific researchers who do not have a PhD degree and who are working in higher education institutes on 31 August 1991 and whose period of tenure expires on that latter date, must undergo assessment in order to be appointed to a permanent post ... In the event of a second negative assessment on their suitability for appointment, they will be transferred according to the provisions in force. Their period of tenure is prolonged ipso jure on the expiration of their last day of service.”
On 6 May 1993 the Rector of the Aristotle University of Salonica informed the applicant that the Special Electoral Body of the University made a second negative assessment of her suitability for appointment to a permanent post, having regard to the provisions of Law 1966/1991.
On 14 April 1993 the Rector of the University requested the Financial Department of the University to discontinue payment of the applicant’s salary on the ground that she was holding a permanent position in the Ministry of Culture. The University stopped paying her salary as from 30 May 1993.
On 17 March 1994 the Salonica Administrative Court of Appeal, sitting as a first instance court, quashed the above-mentioned decision (judgment no. 123/1994) on the ground that it had been taken by an incompetent authority, namely the University Rector, and not by the Minister of National Education. In particular, the Appeal Court held:
“Even if the applicant could not be legally transferred without prior resignation from her position in the Ministry of Culture (although she falls within the exception in article 16 § 5 of Law 1256/1982 which allows a civil servant to hold a second similar post without restriction ...), the above-mentioned obstacle does not constitute a legal basis for the ipso jure termination of her professional relationship with the University. In particular, article 7 § 1 of Law 1966/1991 explicitly provides for the prolongation of the time of service until the transfer is completed. For the termination of the professional relationship with the Aristotle University of Salonica on account of an obstacle to transfer and the lawful discontinuance of the applicant’s salary, the Minister of National Education should have first issued an act ascertaining the existence of an obstacle to transfer (articles 37, 50 § 2 of Law 1286/1982). Therefore, the act ordering the discontinuance of the applicant’s salary without prior issue of an act by the Minister is illegal and must be quashed”.
The judgment was notified to the University on 16 June 1994. On 29 June 1994 the applicant requested the retrospective payment of her salary as from the date on which she was removed from the payroll. However, the University refused to pay her on the ground that an appeal against the decision of the Administrative Court of Appeal was pending before the Supreme Administrative Court.
On 8 February 1996 the applicant filed an action with the Administrative First Instance Court of Salonica seeking damages of 9 316 196 drachmas (GRD) as a result of the unlawful termination of the payment of her salary in the period between 1 June 1993 and 31 December 1995.
By judgment no. 2021/2000 the Administrative First Instance Court upheld the applicant’s claim.
On 28 December 1998 the applicant filed a new action with the Administrative First Instance Court claiming damages of 14 603 436 GRD for the period between 1 January 1996 and 31 December 1998. On 4 September 2001 the Administrative First Instance Court adjourned the examination of the case pending the judgment of the Supreme Court in the appeal against judgment no. 123/1994.
On 11 February 1999 the Supreme Administrative Court dismissed the University’s appeal (judgment no. 536/1999) on a procedural ground. However, the University continued to refuse to pay her. The judgment was finalised and certified on 23 June 2000.
In January and March 2000 the applicant wrote to the University and to the Ministry of Education protesting against the arbitrary refusal of the University to comply with the court’s decisions. On 13 April 2000 the University replied that it was not yet aware of the Supreme Administrative Court’s judgment and that it would take the necessary steps as soon as it had received it.
On 9 February 2001 the University Registry asked the Ministry of National Education to issue an act certifying that the applicant’s contract of employment had been terminated by the Minister retroactively as of 28 July 1993. On 11 July 2001 the Ministry replied that the relevant authority for issuing acts concerning the appointment of University staff or the termination of their contracts was the Rector of the University.
On 9 October 2001 the Rector of the University of Salonica issued an act certifying the termination of the applicant’s contract as of 22 July 1993.
B. Relevant domestic law
Article 95 § 5 of the Constitution reads as follows:
“The administration shall be bound to comply with court decisions. A breach of this obligation shall render liable any responsible agent, as specified by law ...”
Article 198 of the Code of Administrative Procedure reads as follows:
“The administrative authorities are required, by positive action or by way of abstaining from any contrary act, to comply with the contents of decisions issued on the matter of disputes introduced for settlement with an appeal ...”
COMPLAINTS
The applicant alleges that the refusal of the Aristotle University of Salonica to comply with the judgments of the administrative courts and pay the salary due to her amounts to a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
THE LAW
The applicant alleges a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“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.”
(a) The Government request the Court to dismiss the application as the applicant did not lodge her application with the Court within six months of the date on which the Supreme Administrative Court finalised its judgment, namely 23 June 2000. Furthermore, any violation which might be discerned in the light of the University’s non-compliance with the courts’ decisions cannot be considered a continuing violation. In effect, the University immediately proceeded, as required, to re-examine the case and the Rector issued the act of 9 October 2001 terminating retroactively the applicant’s employment contract as of 22 July 1993.
The applicant submits that there can be no question of non-compliance with the six-months time-limit given that judgments nos. 123/1994 and 536/1999 were both in her favour and the University failed to comply with them.
The Court recalls that the Salonica Administrative Court of Appeal quashed the University’s decision to remove the applicant from the payroll on the ground that the decision was illegal since the Minister of National Education should have first ascertained in an act the existence of an obstacle to the applicant’s transfer. Even supposing that the Rector’s act of 9 October 2001 constituted an act denoting compliance by the University with the above-mentioned judgments, the Court notes that it was taken after the introduction of the application on 18 July 2001.
This objection must therefore be dismissed.
(b) The Government further submit that the applicant has not exhausted domestic remedies. The applicant’s two actions for damages against the University are still pending before the administrative courts. These actions concern the same subject-matter as the complaints lodged with the Court. Furthermore, the applicant has requested the administrative courts to award her full compensation should they find that the University failed to comply with judgments nos. 123/1994 and 536/1999. By judgment no. 2021/2000 the First Instance Administrative Court held that the applicant is entitled to full compensation. However, this judgment has not become final and may be reversed if it is found on appeal that the University did in fact comply with the judgments at issue.
The applicant maintains that her actions for damages are different from the subject matter of her application to the Court. The critical fact for her application is that, as a result of judgment no. 123/1994 (and the dismissal of the appeal of the University by judgment no. 536/1999 of the Supreme Administrative Court), the University has a legal obligation to resume the payment of her salary with immediate effect from June 1993 onwards. It has not fulfilled that obligation.
The Court notes that on 14 April 1993 the Rector of the University removed the applicant from the payroll. On 17 March 1994 the Salonica Administrative Court of Appeal quashed the Rector’s decision on the ground that it should have been made by the Minister of National Education. On 11 February 1999 the Supreme Administrative Court upheld that judgment. As a result of these two judgments, the matter was referred to the Minister of National Education. The Minister considered the case and decided that it should be sent back to the Rector for a final decision. On 19 October 2001 the Rector decided to terminate the applicant’s employment contract with retroactive effect and to remove her from the payroll. In the meantime, the applicant introduced with the First Instance Administrative Court two actions for damages for loss of salary between 1 June 1993 and 31 December 1998. Both actions are still pending.
The Court considers that in view of the Rector’s decision of 19 October 2001 the applicant cannot expect to continue to be paid by the University. The only remaining question - still unresolved by the administrative courts - is whether she should be paid damages for the period between 1 June 1993 and 31 December 1998. In the Court’s view, this represents the essence of her complaints and, in view of the pending litigation, these complaints must be considered premature.
It follows that the application must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy