THIRD SECTION
DECISION
Application no. 29017/18
Vincenzo GIUDICE and Others
against Greece
The European Court of Human Rights (Third Section), sitting on 4 March 2025 as a Committee composed of:
Peeter Roosma, President,
Ioannis Ktistakis,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 29017/18) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 June 2018 by three Italian nationals, whose relevant details are listed in the appended table, represented by Mr D. Petrouskas, a lawyer practising in Samos;
the decision to give notice of the application to the Greek Government (“the Government”), represented by their Agent, Mrs N. Marioli, President at the State Legal Council, and their Agent’s delegates, Ms Z. Hatzipavlou and Ms A. Karagianni, respectively Senior Advisor and Legal Representative at the State Legal Council;
the parties’ observations;
noting that the Italian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicants’ alleged lack of access to court, following the dismissal of their civil action against two companies for failure to pay a security deposit for costs of proceedings (εγγύηση).
2. The first applicant is owner, captain and mechanic of a fishing ship named “LUISA” and the second and third applicants are members of its crew. In February 2004 their ship was involved in an accident with another ship named “CMA VGM ELBE” which resulted in the former’s sinking.
3. In July 2005 the applicants lodged an action for damages against the company which owned “CMA VGM ELBE” (“LACEY NAVIGATION Inc”), its representative in Greece (“DANAOS SHIPPING”), as well as the officer on duty D.Z. and the ship’s captain, C.T. The first applicant sought damages in the amount of 770,979.57 euros (EUR), the second applicant sought EUR 104,956.72 and the third applicant sought EUR 99,956.
4. On 19 September 2006 a first hearing of the case took place before the Piraeus Court of First Instance. The first and the second defendants (“the two companies”) raised a preliminary objection under Article 169 of the Code of Civil Procedure requesting the domestic court to order the applicants to pay a security deposit for the costs of the proceedings.
5. In response to that objection, the Piraeus Court of First Instance issued preliminary decision no. 5655/2006 of 24 November 2006 which suspended the proceedings against the two companies and ordered the applicants to pay a security deposit. The security deposit would have to be paid at the Loans and Funds Deposit (Ταμείο Παρακαταθηκών και Δανείων) and amounted to EUR 23,150 for the first applicant, EUR 3,150 for the second applicant and EUR 3,000 for the third applicant. The applicants were given a three-months deadline to deposit it starting with the service of the decision, on 3 May 2007.
6. On 26 November 2007, in the absence of any payment made by the applicants within the deadline set, the two companies requested the domestic court to consider the action against them withdrawn (η αγωγή έχει ανακληθεί), pursuant to Article 172 of the Code of Civil Procedure. Α hearing for the examination of the two companies’ request was scheduled before the Piraeus Court of First Instance on 27 May 2008.
7. On 20 May 2008 the applicants submitted before the same court a request for legal aid (ευεργέτημα πενίας). In conjunction with this, they requested to be exempted from the obligation to pay the security deposit. A hearing was scheduled also for 27 May 2008.
8. The Piraeus Court of First Instance then issued two separate decisions. As regards the applicants’ request for legal aid, it was rejected as inadmissible by decision no. 5711/2008 of 17 December 2008 for having been lodged out of time. The domestic court noted that the request was lodged in May 2008, while it should have been lodged no later than 20 July 2007, that is 15 days before the expiration of the initial deadline set for the security deposit’s payment on 3 August 2007. As regards the two companies’ request, it was granted by decision no. 5709/2008 of 17 December 2008. The latter found that the applicants’ action against the two companies should be regarded as withdrawn pursuant to Article 172 of the Code of Civil Procedure.
9. Following these developments, a hearing for the examination of the applicants’ initial action was scheduled on 19 January 2010. The applicants submitted, inter alia, that the obligation to pay the amounts ordered as security deposits violated their right of access to court under Article 6 of the Convention and requested that decisions no. 5655/2006 and 5709/2008 of the Piraeus Court of First Instance be repealed.
10. On 14 September 2010 the Piraeus Court of First Instance issued decision no. 5181/2010 by which it declared the action inadmissible with regard to the two companies. With regard to the remaining two defendants it was declared admissible and dismissed on the merits. With reference to the inadmissible part, it reiterated that the applicants’ action against the two companies had already been regarded as withdrawn by its decision no. 5709/2008 that was final and not subject to repeal.
11. The applicants appealed against judgment no. 5181/2010 reiterating their arguments on the admissibility of their action against the two companies. By decision 461/2014 of 25 June 2014, the Piraeus Court of Appeal upheld the first instance court’s inadmissibility decision, and granted the applicants’ appeal with respect to the third and fourth defendants (D.Z. and C.T.) and awarded them a total of EUR 329,190.50 as damages.
12. The applicants lodged an appeal on points of law against that decision as well as decisions nos. 5655/2006 and 5181/2010 of the Piraeus Court of First Instance. They reiterated the above grievances on the alleged violation of their right of access to court on grounds of the rejection of their action with respect to the two companies. On 27 November 2017 the Court of Cassation by decision no. 1925/2017 dismissed their appeal. As regards the first‑instance court’s decisions, it held that they were not subject to appeal on points of law. As regards the appeal court’s decision, it concluded that the latter addressed the applicants’ arguments relating to the dismissal of their action with respect to the two companies and rejected them with a clear reasoning.
13. The applicants complain under Article 6 § 1 of the Convention that their right of access to a court was infringed due to the dismissal of their civil action against the two companies for failure to pay the security deposit. As a result, they claim that while they were awarded EUR 329,190.50 by the domestic courts, it was not possible for them to enforce the judgment against the two individuals due to the latters’ lack of assets.
RELEVANT DOMESTIC LAW
14. The relevant Articles of the Code of Civil Procedure read as follows:
Article 172
“If the time-limit set for the security deposit has elapsed and no payment is made, the court, upon request of the party which requested the security, shall conclude that the action or intervention or remedy at issue has been withdrawn.”
Article 309
“Following their delivery, judgments deciding finally on an action or intervention shall not be repealed by the court which delivered them. Those not deciding finally may, either on the court’s own motion or upon request, made only during the hearing of the case and not independently, be repealed at any stage of the proceedings until a final decision on the matter is issued. The court is not obliged to respond to a motion to repeal even when it is submitted in an admissible manner.”
THE COURT’S ASSESSMENT
15. The Government maintained that the application should be rejected for non-exhaustion of domestic remedies, arguing that the applicants had not pursued their complaint through the appropriate channels in order to have it examined by the domestic courts. Inter alia, the Government argued that the applicants had failed to object to the two companies’ request for a security deposit and that they had failed to apply for legal aid in accordance with the rules provided in domestic law. Furthermore, the Government noted that the applicants had only requested that the decision at issue be repealed in the context of subsequent proceedings.
16. The applicants disagreed, arguing that they had used all appropriate steps until the final delivery of a decision of the Court of Cassation.
17. The Court does not find it necessary to examine the entirety of the arguments advanced by the parties since the application is in any event inadmissible for the following reasons.
18. The Court reiterates that, in the context of assessing whether an applicant has complied with Article 35 § 1 of the Convention, the requirements contained in that Article concerning the exhaustion of domestic remedies and the time-limit for lodging applications are closely interrelated. That implies, among others, that the ‘final decision’ from the date of which the time-limit for lodging an application starts running is the decision taken in respect to a remedy which is normal and effective with respect to the applicant’s complaint. Otherwise, an applicant could extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint at issue (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 130-32, 19 December 2017, and Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006).
19. In cases in which an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the time-limit for lodging an application (see, for example, Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006, and Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI).
20. The Court reiterates that the six-month rule is a public policy rule which, therefore, it can apply on its own motion, even if no such objection is raised by the Government (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).
21. Turning to the present case, the Court notes that the applicants’ complaints relate solely to the dismissal of their action as regards the two defendant companies which had requested a security deposit to be paid under Article 169 of the Code of Civil Procedure. Therefore, the interference complained of occurred with delivery of decision no. 5709/2008 of the Piraeus Court of First Instance on 17 December 2008, which concluded that the applicants’ action should be regarded as withdrawn with regard to the two companies pursuant to Article 172 of the Code of Civil Procedure (see paragraph 8 above).
22. As the Government pointed out, the applicants challenged decision no. 5709/2008 only in further proceedings (see paragraph 10 above). In the context of these, however, the domestic courts made it clear that such complaints were inadmissible, as decision no. 5709/2008 was a final decision and thus not subject to repeal (see paragraphs 10, 11 and 12 above). The Court notes that the interpretation retained by the domestic courts resulted from a clear legislative provision, namely Article 309 of the Code of Civil Procedure (see paragraph 14 above). Further, the applicants did not argue that the above procedural constraints were not clear or foreseeable to them. In view of the above, the Court considers that the applicants made use of remedies which were inappropriate to offer effective redress with regard to their complaint and therefore cannot be taken into account in calculating the six-month period (compare Jørgensen and Others v. Denmark (dec.), no. 30173/12, § 63, 28 June 2016).
23. As a result of the above considerations, decision no. 5709/2008 of the Court of Piraeus of First Instance delivered on 17 December 2008 must be considered the “final” decision at the domestic level with respect to the applicants’ complaint. Since that decision was rendered more than six months before the date of introduction of the application with the Court, namely on 14 June 2018, and it does not follow that there were any other subsequent events which could have a bearing on the running of the six month time-limit, it follows that the application has been introduced out of time and must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 March 2025.
Olga Chernishova Peeter Roosma
Deputy Registrar President
Appendix
List of applicants:
Application no. 29017/18
No.
Applicant’s Name
Year of birth
Representative’s name and location
Nationality
Place of residence
1.
Vincenzo GIUDICE
1955
Petrouskas Dimitrios
Samos
Italian
Augusta
2.
Carmelo EVOLI
1958
Petrouskas Dimitrios
Samos
Italian
Augusta
3.
Giuseppe ZUPPELLA
1971
Petrouskas Dimitrios
Samos
Italian
Catane