AS TO THE ADMISSIBILITY OF
Application No. 18357/91
by D. and A.A H.
against Greece
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 7 January 1990 by
D. and A.A. H against Greece and registered on 14 June 1991 under file
No. 18357/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
10 December 1993 and the observations in reply submitted by the
applicant on 22 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties can be
summarised as follows:
The applicants are two British nationals born in 1939 and 1937.
They are a married couple and both are graduates and qualified teachers
of English. At the time of introduction of the application they resided
on the island of Rhodes, Greece.
A. The particular circumstances of the case
The second applicant applied on 5 June 1984 to the Direction of
Secondary Education of the Prefecture of Rhodes for a licence to
establish a foreign language private school (frontistirio). She was
informed on 5 June 1984 that, according to the legislation in force,
foreign nationals could not be granted a licence to establish such a
school.
By judgment No. 147/86 of 15 March 1988 (European Commission v.
The Hellenic Republic) the European Court of Justice declared that "by
prohibiting nationals of other member States from setting up
'frontistiria' ... the Hellenic Republic has failed to fulfil its
obligations under Articles 52 and 59 of the EEC Treaty."
On 1 April 1988 the second applicant lodged a further application
to the Direction of Secondary Education of Rhodes for a licence to
establish a frontistirio. A separate application was lodged on the same
day by the first applicant. On 12 April 1988 both applications were
rejected on the ground that the licences requested could not be granted
to foreign nationals.
On 8 June 1988 the applicants filed a recourse for annulment
(aitisi akyroseos) before the Council of State (Symvoulio tis
Epikrateias).
On 15 September 1988 the Director of Secondary Education of
Rhodes informed the applicants that the question of granting licences
for foreign language schools to foreign nationals remained pending.
On 23 November 1988 the applicants wrote to the Prime Minister
asking him to ensure that all necessary steps were taken to comply with
the judgment of the European Court of Justice of 15 March 1988.
The Council of State held a hearing in the applicants' case on
11 April 1989.
On 9 May 1989 the Council of State delivered its judgment No.
1337/1989 on the recourse for annulment of the first applicant. On 10
May 1989 it delivered judgement No. 1361/1989 on the second applicant's
recourse. The Council of State found that, in accordance with the
judgment of the European Court of Justice, nationals of member States
of the European Community could not be prevented from establishing
foreign language schools in Greece since 1 January 1981 on the basis
that they were "foreigners". It annulled the decisions of the Ministry
of National Education.
On 3 July 1989 a third party appeal (tritanakopi) was lodged
before the Council of State by two associations of owners of foreign
language schools and three owners of foreign language schools in Rhodes
against the applicants and the decisions Nos. 1337/1989 and 1361/1989
of the Council of State.
On 8 August 1989 the applicants lodged new applications
requesting the Direction of Secondary Education of Rhodes to enforce
the decisions of the Council of State and grant them the licence to
establish a foreign language school.
On 27 February 1990 the applicant's lawyer wrote to the Director
of Secondary Education of Rhodes asking him to grant the above-
mentioned licences.
On 28 March 1990 the applicants lodged a criminal action against
the Director and any other competent official.
On 20 April 1990 the applicants brought their complaints to the
attention of the Minister of Education.
On 14 November 1990 the applicants sued the administration before
the First Instance Civil Court of Rhodes (Polimeles Protodikeio
Rhodou). The second applicant asked for 41.109.200 GrDrs for actual
damages and loss of earnings she had incurred between 1984 and 1990 as
a result of the refusal of the administration to comply with the
decision of the Council of State. The first applicant asked for
30.025.200 GrDrs for actual damages and loss of earnings he had
incurred between 1988 and 1990 for the same reason. Each of them asked
for 50.000.000 GrDrs for non-pecuniary damage.
On 14 January 1991 the applicants addressed themselves again to
the Minister of Education.
On 25 April 1991 the Council of State by decisions Nos. 2185/91
and 2186/91 rejected the third part appeal lodged by the owners of
foreign language schools and their associations on 3 July 1989.
On 29 July 1991 the applicants addressed themselves once more to
the Minister of Education. On 25 October 1991 they sent a letter to the
Minister in charge of the Presidency of the Government (Ipourgos
Proedrias).
On 20 January 1992 the First Instance Civil Court of Rhodes by
decision 32/92 declared itself incompetent to examine the applicants'
action for damages of 14 November 1990, which had to be submitted to
an administrative court.
On 14 January 1993 the applicants were informed of a letter sent
by the Director of Secondary Education of Rhodes to the Ministry of
Education inquiring whether the applicants should be granted the
licence, in the light of the decision No. 2185/91 of the Council of
State.
On 3 May 1993 the applicants were informed of a further letter
sent by the Director of Secondary Education of Rhodes to the Ministry
of Education reminding the Ministry that the applicants' request for
a licence remained pending despite the fact that two years had already
passed since the publication of the decision of the Council of State.
The letter referred to three previous letters addressed to the Ministry
which remained unanswered.
On 22 October 1993 the criminal action lodged by the applicants
on 28 March 1990 was rejected by the First Instance Criminal Court of
Rhodes (Plimeleiodikeio Rhodou). The court considered that, although
the Director in refusing the applicants' requests had acted unlawfully,
the mens rea element of the offence prescribed in Article 259 of the
Criminal Code was not present.
Following the rejection of their action for damages by the civil
courts on grounds of lack of competence, the applicants re-introduced
their action before the administrative courts. The action was due to
be heard on 21 March 1994.
B. Relevant domestic law and practice
1. Articles 63 et seq. of the emergency law 2545/1940 regulate
matters relating to "frontistiria", a term which includes foreign
language schools. Article 68 para. 1 provides the following:
"Permission to set up `frontistiria' is granted to natural persons who
have the qualifications required in each particular case for
appointment to a post of primary or secondary school teacher in a state
school and teaching therein, or persons who have equivalent
qualifications". Article 18 para. 1 of the Code of Civil Servants,
which also applies in the case of primary and secondary education
teachers, stipulates that no person may be appointed to the civil
service unless he/she is a Greek national. As a result, it is forbidden
to grant foreigners permission to set up foreign language schools.
Article 7 of the Treaty of 25 March 1957 concerning the
establishment of the European Economic Community stipulates that
"within the field of application of the present Treaty, and without
prejudice to the special provisions thereof, any discrimination based
on nationality shall be forbidden". In particular, Article 52 of that
Treaty guarantees the freedom of establishment of nationals of a member
state in the territory of another member state and forbids any
discrimination based on nationality as far as the right to take up and
manage undertakings is concerned. This provision is "immediately
applicable" as from 1 January 1981 as long as there is no provision to
the contrary in the Act of Greece's accession to the European
Communities. The establishment of a foreign language school by a
private individual constitutes an economic activity and, therefore,
falls within the scope of Article 52 of the Treaty. As a result, the
above-mentioned Greek laws, insofar as they prohibit the establishment
of foreign language schools by Community nationals, are contrary to
Article 52 of the Treaty.
2. Article 95 para. 5 of the Greek Constitution creates an
obligation for the administration to comply with decisions of the
Council of State which set aside acts of the administration; all the
organs of the administration which are responsible for failure to
comply with such a decision incur liability, in accordance with the
law.
Article 50 para. 4 of the presidential decree 18/89 concerning
the Council of State provides that the administrative authorities, in
fulfilling their obligations under Article 95 para. 5 of the
Constitution, must comply with the decisions of the Council of State
by either taking positive measures or abstaining from any action which
is contrary to the decision, depending on the circumstances of each
case.
When the Council of State has quashed an administrative act, the
person who filed the recourse for annulment can apply again to the
competent administrative authority requesting it to comply with the
decision. The failure of the authority to take within three months the
required measures constitutes an unlawful failure to act within the
meaning of Article 45 para. 4 of decree 18/89, which may be challenged
by a second recourse for annulment before the Council of State.
Should the Council of State decide to quash the unlawful failure
to act and the public authority still refuse to comply, the person
affected has no further remedy before the Council of State, since the
administration's failure to take the required measures does not
constitute a new unlawful failure to act within the meaning of Article
45 para. 4 of decree 18/89.
Under Article 72 of the presidential decree 18/89 a special
committee composed of the Vice-Chairmen and five Councillors [full-
members (simvouloi)] of the Council of State has been set up to monitor
compliance by the administration with the decisions of the Council of
State. The committee may examine cases of failure to comply ex officio
or pursuant to an application by the person affected. Should the
Committee find that there has been unreasonable delay, failure or
refusal to comply, it draws up a report which is sent to the Prime
Minister and the Minister of Justice.
A third party whose interests are prejudiced by a decision of the
Council of State which quashes an act of the administration has the
right, under Article 51 of decree 18/89, to lodge a third party appeal
(tritanakopi).
3. Article 105 of the law introducing the Civil Code provides for
the award of compensation to persons who sustain losses as a result of
something done or omitted by an organ of the state in the exercise of
the powers invested in it, except where the legal rule which has been
breached serves to protect the general interest.
Article 1 para. 1 of law 1406/85 confers jurisdiction for the
adjudication of claims under Article 105 on the administrative courts.
According to Article 50 para. 5 of decree 18/89, the decisions
of the Council of State constitute res judicata between the parties in
any subsequent dispute before a court or administrative authority which
revolves around the administrative issue resolved by the Council of
State.
4. Under Article 259 of the Criminal Code, an employee of the state
who intentionally does not fulfil his civil service duties with the
purpose of providing to himself or to another person illegal profit or
harming the state or someone else is punished with imprisonment up to
two years, if his act or omission is not punishable under another
provision.
According to Article 85 para. 1 of the Civil Servants' Code, a
civil servant is liable towards the state for any compensation the
state might have to pay in respect of something he has done or omitted
in the performance of his duties, provided that he has acted with
intent or gross negligence. The employee is not liable towards third
persons.
Article 50 para. 1 of the presidential decree 18/89 provides,
however, that a employee of the state is personally liable towards
third persons in cases of non-compliance with a decision of the Council
of State which quashes an act of the administration.
5. Article 57 of the Civil Code protects the right of personality.
Article 59 provides for the payment of compensation when this right has
been breached.
COMPLAINTS
The applicants contend that the decisions of the Council of State
are not effective; although the Council of State has vindicated their
position five years ago, the administration fails to comply by
continuing to deny them the right to establish a foreign language
school. The applicants allege that the domestic proceedings are
unreasonably lengthy and ineffective and invoke Article 6 para. 1 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 January 1990 and registered
on 14 June 1991.
On 30 June 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on admissibility and merits.
The Government's observations were submitted on 10 January 1994,
after an extension of the time-limit fixed for this purpose. On
17 February 1994 the applicants submitted their observations in reply.
THE LAW
The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that the administration fails to comply with the judgment
of the Council of State; although the Council of State has vindicated
their position five years ago, the administration continues to deny
them the right to establish a foreign language school. The domestic
procedures concerning their right to establish a foreign language
school are unreasonably lengthy and ineffective.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations
....... everyone is entitled to a fair and public hearing
within a reasonable time by a .... tribunal".
1. As a preliminary point the Government contend that the applicants
have failed to observe the six months rule of Article 26 (Art. 26) of
the Convention. They submit that more than six months elapsed between
the judgments Nos. 1337/1989 and 1361/1989 of the Council of State of
9 and 10 May 1989 and the introduction of the application on 7 January
1990.
The applicants consider that the dates of the above-mentioned
decisions cannot count as the beginning of the six month period within
the meaning of Article 26 (Art. 26) of the Convention. The applicants
consider that they are faced with a situation of a continuous violation
stemming from the failure of the administration to grant them a licence
to establish a school of foreign languages. Moreover, since the
delivery of the decisions mentioned by the Government there have been
third party appeals on which the Council of State ruled on 25 April
1991.
The Commission recalls its previous case-law to the effect that
the failure of the state to pay sums due creates an ongoing situation
in which the six month rule does not apply (Nos. 11698/85, 11.12.86,
unpublished, and 11966/86, 8.12.88, unpublished). The Commission
considers that an ongoing situation has been created in the
circumstances of the present case, as a result of the failure of the
administration to comply with the judgment of the Council of State
which annulled the administrative decision refusing the applicant's
application for a licence to establish a foreign language school.
The Commission concludes, in these circumstances, that the
applicants have complied with the six months rule laid down in
Article 26 (Art. 26) of the Convention.
2. The Government submit further that the applicants have not
exhausted all domestic remedies. In particular, the Government refer
to various civil, criminal and disciplinary proceedings which the
applicants could have instituted against the individual civil servants
of whom the competent authorities were composed. The applicants have,
moreover, failed to pursue their claim for compensation against the
state. They have not lodged an appeal against the decision of
20 January 1992 of the First Instance Civil Court of Rhodes. They have
also failed to institute an action for compensation before the
administrative courts and to institute proceedings for compensation for
a violation of the right to personality. Furthermore, the applicants
have not availed themselves of an effective remedy they had under
national law against the failure of the administration to comply with
the first decision issued by the Council of State in their favour; they
failed to lodge an action for annulment of the administration's
unlawful failure to act. Finally, the applicants failed to seize the
special committee set up under Article 72 of the presidential decree
18/89 with their complaint.
The applicants question the effectiveness of the remedies
suggested by the Government. The criminal proceedings they instituted
against the Director of Education ended with his acquittal. Their
action for compensation was rejected by the civil courts as
inadmissible. A second action was lodged before the administrative
courts which is still pending. However, it is irrelevant to the present
application since the sole purpose of the action is the award of
compensation in respect of damage incurred until now and not the
enforcement of the judgment of the Council of State, which recognised
the applicants' right to establish a foreign language school. Insofar
as the second action of annulment before the Council of State is
concerned, the applicants believe that it would not have had any
practical effects, given the administration's persistent refusal to
grant them the licence. The same considerations render a recourse to
the committee set up under Article 72 of decree 18/89 ineffective,
especially since the only power of the Committee is to communicate a
report to the Prime Minister and the Minister of Justice. The
applicants do not regard the administration as being separate from the
Government which is clearly not willing to order the administration to
comply.
The Commission recalls that the obligation to exhaust domestic
remedies contained in Article 26 (Art. 26) of the Convention is limited
to making "normal use" of those remedies likely to be effective and
adequate to remedy the matters of which the applicant complains (No.
11208/84, Dec. 4.3.86, D.R. 46 p. 182). 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). Moreover, for a remedy to
be considered effective it must be capable of remedying directly the
situation complained of (No. 11660/85, Dec. 19.1.89, D.R. 59 p. 85).
Finally, if it cannot be shown that a remedy presents at least some
minimal prospect of success, the individual is not required to pursue
it (cf. eg. No. 8378/78, Dec. 14. 5. 80, D.R. 20 p.168).
In the light of these considerations, the Commission must first
examine whether the applicants should have brought a second recourse
before the Council of State asking for the annulment of the
administration's failure to comply with the first decision of the
Council of State, this remedy appearing to be capable of remedying
"directly" the alleged violation. The Commission notes, in this
connection, the clear and repeatedly manifested unwillingness of the
administration to grant the requested licences, which cannot be
dissociated from the failure of successive Ministers of Education to
act on the applicants' complaints. In this light and given the failure
of the administration to comply with the first decision of the Council
of State, the Commission considers that the applicants were dispensed
from lodging a second action for annulment before the Council of State.
Secondly, the Commission must examine whether the applicants'
action for compensation against the state which is currently pending
before the administrative courts could be considered an effective
remedy, the non-exhaustion of which would prevent the Commission from
examining their complaints.
The Commission recalls, in this connection, its case-law to the
effect that the possibility of obtaining compensation may in some
circumstances constitute an adequate remedy, in particular where it is
likely to be the only possible or practical means whereby redress can
be given to the individual for the wrong he has suffered (No. 12719/87,
Dec. 3.5.88, D.R. 56 p. 237). Applying this case-law, the Commission
rejected an application concerning the dismissal of police officers,
whose action for compensation was pending before the Greek courts, on
the basis that the compensation which could be awarded could be
substantial enough to remedy the alleged violations (No. 18598/91,
Dec. 18.5.94, unpublished).
However, the Commission has also considered that the compensation
machinery could only be seen as an adequate remedy in a situation where
the authorities had taken reasonable steps to comply with their
obligations under the Convention (No. 12719/87, Dec. 3.5.88, D.R. 56
p. 237). In the present circumstances, this is clearly not the case.
In the light of these considerations, the Commission does not
consider that it is barred from examining the applicants' allegations
by the fact that their action for compensation is still pending before
the administrative courts of Greece.
As regards, thirdly, the possibility of obtaining compensation
under the rules of the Civil Code protecting the right of personality,
the Commission notes that the Government have not produced any evidence
to the effect that this might constitute an adequate remedy in the
circumstances of the case.
Fourthly, the Commission considers that the possibility of
instituting civil, criminal or disciplinary proceedings against the
individual civil servants of whom the competent authorities were
composed cannot constitute an effective remedy in the circumstances of
the case. The Government have failed again to produce evidence to the
effect that individual civil servants may be held personally liable
under Greek law for implementing what appears to be a centrally decided
policy. If anything, the decision issued in respect of the criminal
action brought by the applicants against the Director of Education of
the Prefecture of Rhodes constitutes evidence to the contrary.
As regards, finally, the possibility of having recourse to the
committee set up under Article 72 of the presidential decree 18/89, the
Commission notes the limited powers of the committee which do not
differ significantly, in this respect and within the respective fields
of competence, from the powers of various organs supervising the
administration in other Convention countries. The Commission recalls,
in this connection, its case-law to the effect that a recourse before
such an organ cannot be considered an effective and adequate remedy
(No. 11192/84, Dec. 14.5.87, D.R. 52 p. 227).
In these circumstances, the Commission finds that the application
cannot be rejected under Article 27 para. 3 (Art. 27-3) for non-
exhaustion of domestic remedies pursuant to Article 26 (Art. 26) of the
Convention.
3. As regards the substantive issue under Article 6 para. 1
(Art. 6-1) of the Convention, the Government submit that the applicants
were given a fair and public hearing within the meaning of Article 6
(Art. 6) of the Convention before the Council of State. The issue of
compliance or not with a court decision must not be confused with the
entirely separate issue of the determination of a right by a court.
When the person concerned asks the administration to comply with a
court decision, he does not submit a new issue for examination.
Moreover, the execution of the decisions of the Council of State
quashing acts of the administration is a matter falling within the
domain of public law. In the light of all these considerations, the
Government submit that Article 6 (Art. 6) of the Convention does not
apply.
The applicants agree that they were given a fair and public
hearing. However, their main complaint is not that they were not given
a fair and public hearing but the fact that the administration
continues to refuse to comply with the decision of the Council of
State. They consider that this violates their right to effective
judicial protection within a reasonable time.
In the light of the parties' observations, the Commission
considers that the application raises serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention, and no other ground for
declaring it inadmissible has been established.
For these reasons the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
K. ROGGE S. TRECHSEL
Full & Egal Universal Law Academy