AS TO THE ADMISSIBILITY OF
Application No. 18996/91
by GARYFALLOU A.E.B.E.
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 24 October 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 12 October 1991
by GARYFALLOU A.E.B.E. against Greece and registered on 17 October 1991
under file No. 18996/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the Commission's decision of 7 September 1993 to communicate the
application;
- the observations submitted by the respondent Government on
11 November 1993 and the observations in reply submitted by the
applicant company on 31 March 1994;
- the additional observations submitted by the respondent
Government on 18 April 1995 and the applicant company on
23 June 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a private company, registered in Kavala, Greece.
Before the Commission the applicant company is represented by
Mr. P. Bernitsas and Ms. D. Mirasgezi, attorneys-at-law practising in
Athens.
The facts of the case, as they have been submitted by the
parties, can be summarised as follows:
A. Particular circumstances of the case
On 25 March 1986 the applicant company, an international
transporter, was ordered by the Deputy Minister of Commerce to pay a
fine of 500,000 drachmas for having violated certain rules concerning
import and export trade under law 599/1977.
On 9 April 1986, the applicant company challenged the fine before
the First Instance Administrative Court of Athens (Diikitiko
Protodikio). In its judgment of 8 April 1987 (No. 5214/1987) the court
considered that the action (prosfigi) lodged by the applicant company
did not give rise to a dispute coming within the competence of the
lower administrative courts (diikitiki diafora usias); it was in
reality an action for annulment (akirotiki diafora) coming within the
competence of the Council of State (Simvulio tis Epikratias). As a
result, it decided to refer the case to the Council of State.
The case was put before the Fourth Division of the Council of
State on 24 August 1987 and a hearing was initially fixed for
19 April 1988. After a series of adjournments, the case was heard on
8 January 1991.
In the meantime the Council of State, sitting in plenary, issued
decision No. 149/1990 in which it considered that there did not exist
any general principle or specific legal provision which provided for
the referral to the Council of State of actions for annulment which had
been wrongly introduced before the lower administrative courts.
On 16 April 1991 the Fourth Division of the Council of State,
following the decision of the Plenary, held that the applicant
company's action for annulment had not been introduced in accordance
with the law and decided to refrain from hearing the case (decision
No. 1260/1991).
As more than sixty days had passed from the original imposition
of the fine, the applicant company could not lodge a fresh action for
annulment.
On 11 October 1991 law 1968/1991 was promulgated allowing in
article 40 para. 2 for the re-introduction before the competent court
of legal actions which had been rejected by the Council of State or the
administrative courts on a number of grounds, including actions which
the Council of State had refrained from examining for lack of
competence.
The applicant company re-introduced its action for annulment
before the Council of State on 10 February 1992 and a hearing was fixed
for 18 October 1994. On that date the examination of the case was
adjourned until 30 May 1995 when a further adjournment was ordered.
B. Relevant domestic law
Law 1968/1991, promulgated on 11 October 1991, provides the
following:
Article 34 para. 1:
"When an administrative court considers itself incompetent
to hear either a dispute coming within the competence of
the lower administrative courts (diikitiki diafora usias)
or an action for annulment (akirotiki diafora) on the
ground that the dispute or action comes within the
competence of another administrative court or the Council
of State, it must refer the dispute or action to the
competent court. ......"
Article 40 para. 2:
"A remedy or a recourse which was rejected by the Council
of State or an administrative court as inadmissible on the
ground ..... that the lodging of the remedy or recourse had
been certified on the wrong document .... or that the
lawyer who had lodged the remedy or the recourse had not
been duly authorised to do so ..... may be re-introduced
within four months from the publication of the present law.
The same holds true for a remedy or a recourse which was
not examined by the Council or the administrative court for
lack of competence."
Since the promulgation of the above law, the Council of State has
delivered two decisions of principle concerning the constitutionality
of Article 40 para. 2.
In its decision No. 2000/1992 the Council of State, sitting in
plenary, examined an action for annulment which it had previously
declared inadmissible on the ground that the lawyer who had lodged it
had not been duly authorised to do so and which had been re-introduced
under Article 40 para. 2 of law 1968/1991. The Council of State noted
that Article 40 para. 2 allowed for the review of final court
decisions, without, however, amending the legal rules on the basis of
which these decisions had been issued. As a result, Article 40 para.
2 of law 1968/1991 could not be reconciled with the independence of the
judiciary and the principles of separation of powers and equality of
arms. The re-introduced action for annulment was rejected.
In its decision No. 1026/1993, however, the Council of State
considered that Article 40 para. 2 of law 1968/1991 was not
unconstitutional insofar as it allowed for the re-introduction of an
action which had been rejected on the ground that its lodging had been
certified on the wrong document. The Council noted that law 1968/1991
had amended the rules concerning the certification of the lodging of
an action for annulment.
COMPLAINTS
1. The applicant company initially complained under Article 6
para. 1 of the Convention of a violation of its right of access to a
court.
2. In a letter dated 16 January 1995 the applicant company also
complained under Article 6 para. 1 of its right to a hearing within a
reasonable time.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 October 1991 and registered
on 17 October 1991.
On 7 September 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 11 November 1993.
On 18 January 1994 the applicant company submitted its observations in
reply. These observations were received on 31 March 1994.
On 2 December 1994 the Commission decided to invite the parties
to a hearing on the admissibility and merits.
On 16 January 1995 the applicant company submitted the following:
"When the initial application was lodged it was clear that the
applicant was deprived of his right to be heard by a competent court.
Subsequently, ... law 1968/1991 granted the applicant the right to
apply once more for the same matter. The applicant lodged a new
recourse... Irrespective of the outcome of the judicial proceedings
before the Council of State the Greek Government failed to provide the
applicant with an effective remedy within a reasonable period of time
in violation of Article 6 of the Convention." In the light of the
above, the applicant company requested the Commission to clarify any
outstanding issues by means of a written procedure.
On 19 January 1995 the Commission decided to cancel the hearing
and to invite the parties to submit observations on the complaint
regarding the length of the proceedings.
Additional observations were submitted by the Government on
18 April 1995 and the applicant company on 23 June 1995.
THE LAW
1. The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention of a violation of its right of access to
a court.
Article 6 para. 1 (Art. 6-1) of the Convention provides that in
the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a hearing within
a reasonable time.
The Government submit that the applicant company has not
exhausted domestic remedies. Its action, having been re-introduced
within the time-limit provided for under Article 40 para. 2 of law
1968/1991, remains pending. There are no reasons to assume, on the
basis of the present case-law, that the Council of State will consider
that the provision on the basis of which the action has been re-
introduced is unconstitutional in the circumstances of the case. The
case must be distinguished from the case in respect of which the
Council of State issued decision No. 2000/1992. Article 34 para. 1 of
law 1969/1991 made the referral of a case to the competent court
obligatory and thus the legal rule which allowed for the original
rejection of the applicant company's action has been amended. In this
respect the applicant company's situation is comparable to that of a
litigant whose action was originally rejected on the ground that its
lodging had been certified on the wrong document. The Council of State
in its decision No. 1260/1991 considered that Article 40 para. 2 of law
1968/1991, insofar as it allowed for the re-introduction of the latter
type of actions, was not unconstitutional.
The applicant company argues that the chances of success of its
re-introduced action appear, in the light of decision No. 2000/1992 of
the Council of State, extremely reduced.
The Commission notes the present state of the case-law of the
Council of State concerning the constitutionality of Article 40 para.
2 of law 1968/1991 and considers that it has not been established on
the basis of the submissions of the parties that the applicant
company's action is bound to fail because of the unconstitutionality
of the provision under which it has been re-introduced. Moreover, there
is no indication that the applicant company has ever considered
abandoning the action it has re-introduced on the ground that it has
no prospects of success.
In these circumstances, the Commission considers that the
applicant company's complaint concerning lack of access to a court
under Article 6 para. 1 (Art. 6-1) of the Convention is premature (see,
mutatis mutandis, No. 10148/82, Dec. 14.3.85, D.R. 42 p. 98) and must
be rejected as manifestly ill-founded under Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant company also complains under Article 6 para. 1
(Art. 6-1) of the Convention of a violation of its right to a hearing
within a reasonable time.
The Government argue that Article 6 para. 1 (Art. 6-1) does not
apply in the proceedings at issue. The fine imposed was not criminal
in character and the underlying legal relationship was of a public law
nature. In any event, the complaint was first submitted on 16 January
1995 and the Commission is prevented by the six-month rule from
examining the length of the first set of proceedings which were
concluded on 16 April 1991. As regards the second set of proceedings
which the applicant company instituted on 10 February 1992, the
applicant has not exhausted domestic remedies as these proceedings are
still pending. If the Commission were ever to examine the substance of
the complaint, the Government submit that the applicant company is
responsible for the delays because of its original failure to lodge its
action before the competent court.
The applicant company submits that Article 6 para. 1 (Art. 6-1)
applies in the proceedings at issue which involve a determination of
a criminal charge within the meaning of that provision. In accordance
with the case-law of the domestic courts, the imposition of an
administrative penalty involves the disapproval of the person
concerned. The period to be taken into consideration starts on 24
March 1986 and the proceedings have accordingly lasted more than nine
years.
The Commission recalls that, in accordance with the Court's and
its own case-law, an applicant may complain under Article 25 (Art. 25)
of the Convention of the length of proceedings before their conclusion
(see, by implication, Eur. Court H.R., Neumeister judgment of 27 June
1968, Series A, no. 8, p. 38, para. 7; Nonnis v. Italy, Comm. Report
15.1.91, para. 28, Eur. Court H.R., Series A no. 223-D, p. 41). As a
result, the Government's argument that the applicant company has not
exhausted domestic remedies because it complained to the Commission
before the proceedings were concluded must be rejected. As regards the
question arising from the Government's other argument that the
Commission is only competent to examine the length of the proceedings
which the applicant company instituted on 10 February 1992, the
Commission considers that it is related to the substance of the
applicant company's complaint concerning the length of the proceedings.
This complaint, however, raises 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 ADMISSIBLE, without prejudging the merits of the case,
the applicant company's complaint regarding the length of the
proceedings;
unanimously,
DECLDECLARES INADMISSIBLE the remainder of the application.
Secretary Acting President
to the First Chamber of the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy