SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications no. 50530/99 and 50531/99
by Antonios IERONYMAKIS and Others and Despina PLEVRAKI
against Greece
The European Court of Human Rights (Second Section), sitting on 15 March 2001 as a Chamber composed of
MrA.B. Baka, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to application no. 50530/99 introduced on 2 November 1998 and registered on 24 August 1999, and to application no. 50531/99 introduced on 30 June 1999 and registered on 24 August 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are 104 Greek nationals whose names are held in the Court’s case-file. They are represented before the Court by Mr A. Bafakis, a lawyer practising in Heraklion (Crete).
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were hired by the Greek Air Forces and were put at the disposal of the American forces in Greece, in accordance with an agreement concluded between Greece and the United States.
In 1989 the Administrative Arbitration Court of Appeal (Δευτεροβάθμιο Διοικητικό Διαιτητικό Δικαστήριο) of Athens considered that the members of the Association of the Employees of the American Forces (Σύλλογος Εργαζομένων δια τας Δυνάμεις ΗΠΑ) were entitled to a pay rise (decision no. 39/1989).
On 9 October 1989 the Minister of Labour vested this decision with executory force (ministerial decision no. 17836/89). However, the applicants were never given the pay rise in question.
Between September 1993 and June 1994 the applicants were dismissed from their posts because the American base where they used to work closed down.
On 13 June 1997 the Legal Council of State considered, by majority, that the Greek Air Force was under no obligation to employ those dismissed from the American base. However, on 5 November 1997 the Deputy Minister of National Defence refused to accept the opinion of the Legal Council of State. On the contrary, he accepted the opinion of the minority to the effect that the persons concerned remained employees of the Greek Air Force.
The applicants remain unemployed.
B. Relevant domestic law and practice
Under the Greek legal system, the failure to conclude a collective labour agreement (συλλογική σύμβαση εργασίας) gives rise to the intervention of the Administrative Arbitration Courts. The final decisions of these courts are regulatory administrative acts (κανονιστικές διοικητικές πράξεις) which, following their approval by the Minister of Labour, have the effect of collective labour agreements. Their non-enforcement gives the interested employees an actionable claim against the State.
Several former employees of the American forces (about 150 out of 320) have brought civil actions before the ordinary courts seeking the readjustment of their salaries on the basis of decision no. 39/1989. The courts found in their favour (see, for example, decision no. 201/1989 of the First Instance Civil Court of Heraklion, upheld by decision no. 72/1993 of the Crete Court of Appeal). The State, which had originally appealed in cassation, withdrew its appeals and has already complied with the courts’ judgments.
COMPLAINTS
1. The applicants complain about the failure of the Greek authorities to employ them. They consider that the authorities are bound to do so because of the decision of 5 November 1997 of the Deputy Minister of National Defence and “decisions of the Greek courts”.
2. The applicants also complain about the failure of the Greek authorities to comply with decision no. 39/1989 of the Administrative Arbitration Court of Appeal.
THE LAW
1. The Court finds that because of the similarity of the factual and legal issues involved, all applicants being in a similar situation and their cases raising the same complaints, it is appropriate to join the applications.
2. The applicants complain about the failure of the Greek authorities to employ them. They consider that the authorities are bound to do so because of the decision of 5 November 1997 of the Deputy Minister of National Defence and “decisions of the Greek courts”.
The Court does not consider that an issue arises under the Convention concerning the failure of the authorities to employ the applicants. Although a Minister has decreed that they should do so, this is a matter outside the Court’s competence ratione materiae. Moreover, the applicants have failed to substantiate their allegation that there are other court decisions from which it transpires clearly that they remain State employees.
As a result, this part of the applications is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
3. The applicants also complain about the failure of the Greek authorities to comply with decision no. 39/1989 of the Administrative Arbitration Court of Appeal.
The Court will examine this complaint under Articles 6 § 1 of the Convention and 1 of Protocol No. 1.
Article 6 § 1 provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law...
Article 1 of Protocol No. 1 provides as follows:
“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.”
The Government raise two objections as to the admissibility of this complaint. In the first place, they contend that the applicants cannot claim to be victims within the meaning of Article 34 of the Convention. The Government also submit that the applicants have not exhausted domestic remedies because they did not institute civil proceedings seeking the readjustment of their salaries on the basis of decision no. 39/1989. According to the Government, this decision is a regulatory administrative act and its non-enforcement gives the interested employees an actionable claim against the State. In fact, several former employees of the American forces have brought civil actions before the ordinary courts which found in their favour. The State has already complied with the courts’ judgments. As to the merits the Government contest in substance the applicability of Article 6.
The applicants dispute the Government’s allegations.
The Court is not required to decide whether the facts which the applicants allege disclose any appearance of a violation of Articles 6 of the Convention and 1 of Protocol No. 1, since under Article 35 § 1 of the Convention it “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.
The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296‑A, p. 18, § 33, and the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996‑II, p. 571, § 33). Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (Civet v. France [GC], no. 29340/95, § 41, ECHR 1999‑VI).
In the instant case the Court notes that the remedy referred to by the Government fulfils the above requirements of a remedy necessary to exhaust under Article 35 § 1 of the Convention. The Court therefore finds that, by not instituting proceedings before the civil courts in order to ask for the readjustment of their salaries, the applicants have failed to exhaust domestic remedies. It follows that this part of the case is to be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications.
Declares the applications inadmissible.
Erik FriberghAndrás Baka
RegistrarPresident
Full & Egal Universal Law Academy