SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40433/98
by Theodora MOUSHOURI
against Greece
The European Court of Human Rights (Second Section), sitting on 15 June 2000 as a Chamber composed of
MrA.B. Baka, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 10 March 1998 and registered on 25 March 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Greek national, born in 1949 and living in Varkiza in Attika. She is represented before the Court by Mr M. Angelopoulos, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 October 1990 the applicant filed a suit against the X Club before the single-member first instance civil court (monomeles protodikio) of Athens about unfair dismissal submitting, inter alia, that her compensation had not been calculated correctly.
The case was heard on 14 January 1991.
On 21 March 1991 the court found in favour of the applicant declaring her dismissal null and void and ordering the defendant to pay her 630,000 drachmas, by way of salary arrears, and part of her costs and expenses. The applicant served the decision on the X Club on 28 May 1991.
On 28 June 1991 the X Club appealed. The appeal was heard on 29 October 1991.
On 26 November 1991 the Court of Appeal (Efetio) of Athens upheld the appeal and considered that there was no unfair dismissal. According to the court, the applicant had changed duties before her dismissal; as a result, the X Club, when calculating her compensation, was not obliged to take into consideration a special allowance attaching to her previous duties.
On 9 April 1992 the applicant appealed in cassation. A hearing was fixed for 30 March 1993. On 22 February 1993 the applicant submitted additional grounds of appeal. On 11 March 1993 the judge rapporteur submitted his report. On 30 March 1993 the court decided to adjourn the examination of the appeal at the parties’ request. The appeal was heard on 22 February 1994. On 31 March 1994 the Court of Cassation (Arios Pagos) quashed the judgment of the Court of Appeal considering that the latter had ignored some evidentiary material. The case was sent back to the Court of Appeal for re-examination.
On 25 April 1994 the applicant asked the Court of Appeal to fix a hearing. The case was due to be heard on 7 June 1994 but the lawyers were on strike. On 20 June 1994 the applicant asked the court to fix a new hearing date. On 15 November 1994 the court adjourned the examination of the case. On 10 January 1995 the applicant’s case was heard by the Court of Appeal, composed of different judges from those that had issued the judgment of 26 November 1991. On 13 February 1995 the Court of Appeal found in favour of the X Club considering that the applicant had accepted that she had changed duties before her dismissal and that she was not entitled to the special allowance. Although the applicant was entitled to another allowance, the X Club had not acted in bad faith in failing to take the latter into consideration when calculating her compensation. As a result, although the applicant could claim additional compensation, her dismissal was not null and void.
On 26 April 1995 the applicant appealed in cassation for the second time. The Court of Cassation heard the appeal on 26 September 1995 and on 21 November 1995 it quashed again the judgment of the Court of Appeal on the ground that its reasoning was contradictory, vague and inadequate. The case was sent back to the Court of Appeal for re-examination.
On 12 December 1995 the applicant asked the Court of Appeal to fix a hearing. The Court of Appeal heard the appeal on 13 February 1996 and on 21 May 1996 it found again in favour of the X Club because the applicant, prior to her dismissal, had accepted that she should not be receiving any of the allowances in question.
On 12 September 1996 the applicant appealed in cassation for a third time. The Court of Cassation heard the appeal on 18 February 1997 and dismissed it on 24 June 1997. The text of the jugement was finalised on 2 July 1997. It was signed by the President on 22 August 1997. The X Club served the judgment on the applicant on 12 September 1997.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length and outcome of the proceedings.
THE LAW
1.The applicant complains under Article 6 § 1 of the Convention about the length and outcome of the proceedings.
Article 6 § 1 of the Convention, in so far as relevant, provides the following:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
The Government argue that the application was submitted out of time. In their view and according to their interpretation of the Papachelas v. Greece judgment of 25 March 1999 (to be published in Reports 1999) and the admissibility decision of 7 October 1999 in application No. 43619/98 (unpublished), the six-month period should be calculated from 2 July 1997, the date of the finalisation of the text of the final judgment of the Court of Cassation. In their view, the present case is different from Worm v. Austria, where the Court found that the six-month limit starts on the date of notification (judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1534), because Greek law does not provide for an ex officio notification of judgments.
The applicant argues that the six-month period should be calculated from 12 September 1997, the date when she was notified of the judgment.
The Court recalls that, according to its case-law, where domestic law does not provide for service of the final domestic decision, the six-month period cannot start running earlier than from the date of the finalisation of the text of the judgment (Papachelas v. Greece judgment of 25 March 1999, op. cit.). Moreover, the Court has considered that parties to proceedings cannot be required to enquire day after day whether a judgment that has not been served on them has been delivered (Papageorgiou v. Greece judgment of 22 October 1997, Reports 1997-VI, p. 2277). Applying these principles to the Greek cases the Court has so far invariably calculated the six-month period from the date when the applicants obtained a copy of the final domestic judgments (see the above-mentioned Papageorgiou v. Greece and Papachelas v. Greece judgments and decision on the admissibility of application No. 43619/98).
In the present case, according to all the indications in the file, the applicant first obtained a copy of the final judgment on 27 September 1997. It is true that the text had been finalised on 2 July 1997. However, the Court considers that there is no indication that the applicant failed to make reasonable efforts to obtain a copy of the judgment earlier. The Court recalls in this connection that the finalised text of the judgment had been signed by the President of the Court of Cassation only on 22 August 1997. It follows that the applicant, by lodging the application on 10 March 1998, i.e. less than six months from 27 September 1997, complied with the time-limit set provided for in Article 35 § 1 of the Convention.
2.As regards the applicant’s complaint that the proceedings were unreasonable in length, the Government invite the Court to look behind their overall duration and take into account the particular circumstances of the case examining each stage of the proceedings separately. The Government point out that the applicant’s case was examined once by the first instance court, three times by the Court of Appeal and three times by the Court of Cassation. There were no periods of inactivity in the proceedings. There were only two adjournments, one of which was ordered following a request by the parties. Finally, the Government are not responsible for the delays caused by the lawyers’ strike.
The applicant invites the Court not to apply “Greek standards” when examining the reasonableness of the length of the proceedings. She considers that, every time that an appeal was lodged or a hearing was adjourned, the court authorities should have been able to fix the next hearing date much sooner than they actually did. It is on this basis that the applicant submits that the authorities should be held responsible for the delays between 5 October 1990 and 14 January 1991, 9 April 1992 and 30 March 1993, 30 March 1993 and 22 February 1994 and 25 April 1994 and 10 January 1995. In the applicant’s view, although the respondent Government are not responsible for the delays resulting from the lawyers’ strike, the domestic authorities should have made efforts to reduce its impact on the case-load. This did not happen in Greece. The applicant puts emphasis on the global duration of the proceedings and on what was at stake for her. However, she also points out that there were also delays during particular stages and this would be enough for the Court to find a violation.
The Court notes that the parties do not dispute that Article 6 § 1 of the Convention applied to the proceedings in question, which concerned the dismissal of a private-sector employee. The Court agrees that the proceedings involved a determination of the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention.
The Court notes that the proceedings started on 5 October 1990 and ended on 24 June 1997. They, therefore, lasted more than six years and eight months.
According to the case-law of the Court, the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant. Employment disputes call generally for expeditious decision (Thlimmenos v. Greece judgment of 6 April 2000, to be published in Reports of Judgments and Decisions 2000, § 60).
The Court considers that the present case was of a certain legal complexity. This must be one of the reasons why it had to be examined once by the first instance court, three times by the Court of Appeal and three times by the Court of Cassation.
Moreover, the Court considers that the duration of the proceedings is mostly explained by its procedural history. As a matter of fact, the Court notes that the only significant delays in the proceedings were those between 9 April 1992, when the applicant appealed in cassation, and 22 February 1994, when the appeal in cassation was heard, and between 25 April 1994, when the case returned to the Court of Appeal for the first time, and 10 January 1995, when it was actually heard by the same court during the particular procedural phase.
As regards the period between 9 April 1992 and 25 February 1994, the Court notes that the applicant only submitted her additional grounds of appeal in cassation on 22 February 1993 and that the hearing of 30 March 1993 had to be adjourned because the parties were not ready. This adjournment resulted in a delay of eleven months. Part of this delay must be imputed to the parties who requested the adjournment in the first place.
As regards the period between 25 April 1994 and 10 January 1995, the Court notes that the Court of Appeal had originally planned to re-hear the applicant’s case on 7 June 1994, i.e. within less than two months from the applicant’s request for a hearing date. However, on that date the lawyers were on strike. This caused a five-month delay for which, according to the Court’s case-law, the Government cannot be held responsible (see the Papageorgiou v. Greece judgment mentioned above, § 47). The same cannot be said of the two-month delay that resulted from the adjournment ordered by the Court of Appeal on 15 November 1994.
However, the Court considers that neither this delay nor the delay of the court authorities in fixing hearing dates after 9 April 1992 and 30 March 1993 warrants a finding that the proceedings were unreasonable in length.
The Court notes in this connection that the applicant herself did not always act in a manner that would have ensured the most expeditious examination of her case. Thus, in addition to requesting an adjournment on 30 March 1993, the applicant did not appeal in cassation against the decision of 26 November 1991 of the Court of Appeal before 9 April 1992. Similarly she waited for more than two months before appealing in cassation on 26 April 1995 against the second decision of the Court of Appeal of 13 February 1995. Finally, her third appeal in cassation was lodged on 12 September 1996, i.e. almost four months after the decision of 21 May 1996 of the Court of Appeal. The Court notes that the applicant did not claim that any of these delays were caused by the failure of the secretariat of the Court of Appeal to finalise the text of the relevant judgments in due course.
In the light of all the above, the Court considers that, even though the nature of the proceedings called for expeditious decision, it has not been shown that the domestic court authorities unduly prolonged the examination of the case. The principal reason for the length of the proceedings remains the fact that the case had to be examined once by the first instance court, three times by the Court of Appeal and three times by the Court of Cassation.
The Court, therefore, considers that there is no appearance of a violation of the applicant’s right to a hearing within a reasonable time under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 thereof.
3.As regards the applicant’s complaint that the outcome of the proceedings was unfair, the Court recalls its case-law to the effect that it is not competent to deal with applications alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, § 28). In the circumstances of the case, the Court considers that there is no appearance of a violation of Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Erik FriberghAndras Baka
RegistrarPresident
Full & Egal Universal Law Academy