AS TO THE ADMISSIBILITY OF
Application No. 27418/95
by Antonios GERAKOPOULOS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 24 February 1995
by Antonios GERAKOPOULOS against Greece and registered on 29 May 1995
under file No. 27418/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
1 April 1996 and the observations in reply submitted by the
applicant on 29 November 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1921. He is a
mineralogist and resides in Athens.
The facts of the case as submitted by the applicant may be
summarised as follows.
On 7 September 1954 the applicant became the co-owner of a mine
in Evros (Greece).
On 7 July 1983, by decision No. 10/14/3/11048, the Minister of
Industry declared that the applicant and the co-owner company had lost
their rights on the mine on the ground that they had not fulfilled
their obligation under the Mining Code to undertake between 1978 and
1980 works at the mine of a value not less than 10.530.000 drachmas
(this amount was calculated on the basis of the surface of the mine
multiplied by 1.000.000 drachmas per year). The same decision stated
that the mine owners could appeal to the Administrative Court of Mines
(Dioikitiko Dikastirio Metqllion) within 30 days from its service. The
decision was served on the applicant on 12 August 1983.
Actions undertaken by the applicant
On 19 September 1983 the applicant lodged before the
Administrative Court of Mines an administrative appeal against decision
No. 10/14/3/11048, which was dismissed on 4 April 1984 on the ground
that it was out of time (decision No. 35/1984).
On 15 February 1985 the applicant lodged an appeal in cassation
(anairesi) against this decision.
On 21 October 1987, by decision No. 4374/1987, the Council of
State (Simvoulio tis Epikrateias) dismissed the applicant's appeal in
cassation as being ill-founded.
Actions undertaken by the co-owner company
On 27 July 1983 the co-owner company lodged an administrative
appeal against decision No. 10/14/3/11048 before the Administrative
Court of Mines.
On 8 May 1985 the applicant applied to join the proceedings as
an intervening third-party. The hearing took place on 3 July 1985.
On 4 December 1985, by judgment No. 37/1985, the Administrative
Court of Mines dismissed the applicant's intervention. It also rejected
the co-owner company's appeal on the ground that the mine at issue had
not been sufficiently exploited.
On 22 April 1986 the applicant, acting in his name and also on
behalf of the co-owner company, lodged an appeal in cassation against
this judgment.
On 21 October 1987, by decision No. 4375/1987, the Council of
State quashed the decision at issue on the ground that the intervention
of the applicant should have been allowed and referred the case to the
First Instance Administrative Court (Dioikitiko Protodikeio) of Athens
which had in the meantime taken over the competence of the
Administrative Court of Mines (Law No. 1406/1983).
On 29 September 1988, by decision No. 15035/1988, the First
Instance Administrative Court of Athens rejected the appeal lodged on
27 July 1983 as being ill-founded. The applicant's intervention was in
consequence also rejected.
On 25 July and 7 August 1989 the co-owner company and the
applicant respectively appealed to the Athens Administrative Court of
Appeal (Dioikitiko Efeteio).
On 19 April and 6 August 1991 the applicant filed additional
reasons for appeal.
The hearing was fixed for 7 February 1991 and then adjourned to
23 May 1991 at the request of the appellants. On 23 May 1991 the
hearing was again adjourned because the members of the Athens Bar were
on strike.
The case was heard on 19 September 1991.
On 16 January 1992, by decision No. 103/1992, the appeals were
dismissed. The Court held that the contested decision was not subject
to an ordinary appeal but only to an appeal in cassation.
On 21 May 1992 the applicant and the co-owner company lodged with
the Council of State an appeal in cassation against this judgment
arguing that, in declaring itself incompetent to examine their appeal,
the Athens Administrative Court of Appeal had violated the law.
On 12 March 1993 the applicant and the co-owner company filed
additional reasons for cassation.
The case was heard on 17 November 1993.
On 7 September 1994, by decision No. 2389/1994, the Council of
State upheld the contested decision and rejected the appeal in
cassation.
Relevant domestic law
A. According to the Mining Code, the minerals belong to public
ownership and are assigned by the State to any person, in accordance
with the provisions of the law. The main obligation of a mine owner is
the exploitation of the mine (Articles 102 and s.). When the competent
public service establishes that no exploitation or mining research has
been carried out in a mine in accordance with the provisions of the
law, it forwards the pertinent particulars to the Mines Board which,
after hearing the concerned parties, decides on the forfeiture of the
right of mine ownership (Article 121).
B. By virtue of Law No. 1406/1983 all administrative disputes
(dioikitikes diafores ousias,) except for actions for annulment
(akirotikes diafores), come within the competence of the lower
administrative courts (Taktika Dioikitika Dikastiria), which replaced
all special administrative courts (Eidika Dioikitika Dikastiria).
According to Article 10 of this law, as interpreted by the constant
case-law, no appeal lies against a decision issued by a lower
administrative court in a case which had been heard by a special
administrative court in first instance and by the Council of State on
appeal, and which is then remanded to the lower administrative court.
COMPLAINTS
1. The applicant complains that the forfeiture of his rights on the
mine in Evros amounts to a violation of the rights secured to him under
Articles 8 para. 1 of the Convention and 1 of Protocol No. 1.
2. The applicant further complains under Article 6 para. 1 of the
Convention of the length of the proceedings.
3. The applicant complains under Articles 6 para. 1, 13, 14 and 18
of the Convention that the Greek courts did not correctly apply the
domestic law in his case and that his right to a fair hearing by
impartial courts has been violated. In particular, the applicant
alleges that the Greek courts did not carefully consider his case and
applied their case-law in a way that was not favourable to him, which
proved that they were biased against him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 February 1995 and registered
on 29 May 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
1 April 1996 after an extension of the time-limit fixed for that
purpose. The applicant replied on 29 November 1996, also after an
extension of the time-limit.
THE LAW
1. The applicant complains that the forfeiture of his rights on the
mine in Evros amounts to a violation of the rights secured to him under
Articles 8 para. 1 (Art. 8-1) of the Convention and 1 of Protocol No.
1 (P1-1).
The Commission will examine this complaint under Article 1 of
Protocol No. 1 (P1-1) which reads 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 respondent Government argue on three separate grounds, namely
failure to comply with the six months rule and incompetence of the
Commission ratione personae and temporis, that the application is
inadmissible:
The Government first argue that the application is out of time
under Article 26 (Art. 26) of the Convention, which requires complaints
to be submitted to the Commission within six months from the date on
which the final decision was taken. They submit that the proceedings
undertaken by the applicant ended on 21 October 1987 when the Council
of State dismissed his appeal in cassation. The applicant, however, did
not introduce his application to the Commission until 24 February 1995,
i.e. more than seven years after the end of the proceedings.
As regards the proceedings which ended on 7 September 1994, the
Government submit that the applicant cannot be considered a "victim"
within the meaning of Article 25 (Art. 25) of the Convention, given the
fact that these proceedings were undertaken by the co-owner company and
their results, whatever they were, would have consequences only for
that company. The fact that the applicant participated in the
proceedings as an intervening third-party is of no importance for the
requirements of Article 25 (Art. 25), since the outcome of the
proceedings could not have affected the final loss of the applicant's
own property rights, a matter which has been settled since 1987.
The Government also point out that under the terms of the
declaration made by Greece recognising the right of individual
petition, the Commission is not competent ratione temporis to examine
applications relating to events which took place before
20 November 1985. Therefore, all complaints of the applicant referring
to actions which took place before this date should be dismissed as
inadmissible.
Alternatively, the Government submit that the application is
manifestly ill-founded.
The applicant rejects the arguments of the respondent Government.
The Commission notes that under Article 26 (Art. 26) of the
Convention it may only deal with a matter "within a period of six
months from the date on which the final decision was taken".
In the present case the Commission notes that the proceedings
undertaken by the applicant ended on 21 October 1987, which is
considerably more than six months before the date on which he submitted
his application before the Commission.
It follows that this part of the application must be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention and
that the Commission may only deal with the proceedings undertaken by
the co-owner company and in which the applicant participated as an
intervening third-party.
As regards the Government's objection that the applicant cannot
claim to be a victim of the Convention concerning the outcome of the
proceedings undertaken by the co-owner company, the Commission notes
that on 8 May 1985 the applicant applied to join these proceedings as
an intervening third-party. Both he and the co-owner company contested
decision No. 10/14/3/11048 by virtue of which they had lost their
property rights on the same mine. If this decision had been overturned,
the applicant's property rights would also have been affected.
In the light of the above, and given also the fact that the
Council of State allowed the applicant's intervention (decision
No. 4375/1987), the Commission cannot accept the Government's argument,
according to which the outcome of the proceedings could not affect the
applicant's rights, and therefore considers that the applicant can
claim to be a "victim" within the meaning of Article 25 (Art. 25) of
the Convention.
As regards the merits of the case, the Commission notes that
under Greek law property rights on mines can be assigned by the State
to any person provided, inter alia, that productive researches are
carried out in the mine. Otherwise, the law provides that the owner
loses his rights on the mine.
Accordingly, the Commission notes that in the present case the
applicant had only a conditional right to property which he lost
because he had not fulfilled his obligations under Greek law.
Therefore, the Commission considers that the applicant was deprived of
his possessions in the public interest and according to the conditions
provided for by law.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains of the length of the proceedings
and invokes Article 6 para. 1 (Art. 6-1) of the Convention which,
insofar as relevant, provides as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... within a reasonable time by a ...
tribunal ..."
In the present case the proceedings started on 8 May 1985 when
the applicant applied to join the proceedings as an intervening third-
party and ended on 7 September 1994. They therefore lasted nine years
and four months.
The Commission recalls that the period to be considered begins
on 20 November 1985, when the recognition by Greece of the right of
individual petition took effect; however, in assessing the
reasonableness of the time that elapsed after 20 November 1985, account
must be taken of the then state of proceedings (see Eur. Court HR, Foti
and others v. Italy judgment of 10 December 1982, Series A no. 56,
p. 18, para. 53). Therefore, the period to which the Commission's
examination relates is eight years, nine months and eighteen days.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed according to the circumstances of the case
and with reference to the following criteria: the complexity of the
case and the conduct of the applicant and of the authorities dealing
with the case (Eur. Court HR, Vernillo v. Italy judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission notes that the case concerned property rights on
a mine and necessitated a careful study by the competent authorities
of whether the mine at issue had been exploited according to the
applicable legal criteria. Therefore the Commission considers that the
case had a certain complexity.
As regards the conduct of the parties, the Commission recalls
that it should be borne in mind that in civil matters the exercise of
the right to a hearing within a reasonable time is subject to diligence
being shown by the party concerned (Editions Périscope v. France, Comm.
Report 11.10.90, para. 44, Eur. Court HR, Series A no. 234-B, p. 72).
In the present case the Commission notes that on three occasions
the applicant took several months to take the relevant procedural
steps: from 4 December 1985 to 22 April 1986 (more than four months);
from 29 September 1988 to 7 August 1989 (more than ten months); from
16 January 1992 to 21 May 1992 (more than four months). The Commission
also notes that the hearing before the Athens Administrative Court of
Appeal was adjourned at the request of the appellants, and this
adjournment caused a delay of more than seven months. It therefore
appears that the applicant contributed substantially to the length of
the proceedings.
The Commission recalls that only delays attributable to the State
may justify a finding of a failure to comply with the "reasonable time"
requirement (Eur. Court HR, H. v. France judgment of 24 October 1989,
Series A no. 162, pp. 21-22, para. 55). In the present case the
Commission has found basically two delays which could be attributed to
the Council of State, namely an eighteen months period from
22 April 1986 to 21 October 1987, and a period of almost ten months
from 17 November 1993 to 7 September 1994. As for the rest, the
chronology of the proceedings shows that the judicial authorities have
shown due diligence in the conduct of the proceedings.
Having regard to all the circumstances of the case and in
particular to the fact that within the period complained of the case
was heard by four different courts plus the Administrative Court of
Mines, the Commission concludes that, although some of the delays could
probably have been avoided, they are not sufficiently serious to
warrant the conclusion that the total duration of the proceedings is
excessive.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains under Articles 6 para. 1, 13, 14 and 18
(Art. 6-1, 13, 14, 18) of the Convention that the Greek courts did not
correctly apply the domestic law in his case and that his right to a
fair hearing by impartial courts has been violated. In particular, the
applicant alleges that the Greek courts did not carefully consider his
case and applied their case-law in a way that was not favourable to
him, which proved that they were biased against him.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its sole task is to ensure observance of the engagements
undertaken by the High Contracting Parties in the Convention. It is not
competent to examine applications concerning errors of law or fact
allegedly committed by the competent national authorities, to whom it
falls, in the first place, to interpret and apply domestic law. The
Commission is not competent to look into allegations concerning such
errors except where, and to the extent that, they seem likely to have
entailed a violation of the rights and freedoms guaranteed by the
Convention (No. 19890/92, Dec. 3.5.93, D.R. 74, p. 234).
In the light of all the material in its possession and, in so far
as the matters complained of are within its competence, the Commission
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
- by a majority,
DECLARES INADMISSIBLE the applicant's complaint concerning the
length of the proceedings;
- unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy