AS TO THE ADMISSIBILITY OF
Application No. 18545/91
by Yüksel NURIOGLU
against Greece
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, 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 9 July 1991 by
Yüksel NURIOGLU against Greece and registered on 18 July 1991 under
file No. 18545/91;
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
14 June 1994 and the observations in reply submitted by the
applicant on 26 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen of Turkish ethnic origin born
in 1952 in Xanthi, Greece and currently residing in Xanthi. In the
proceedings before the Commission he is represented by Professor Tekin
Akillioglu, a lawyer practising in Ankara, Turkey.
The facts of the case, as they have been presented by the
parties, may be summarised as follows:
The applicant obtained a degree in pharmaceutics from a Turkish
university on 3 September 1979 and a licence to work as a pharmacist
in Greece from the Greek Ministry of Health on 28 April 1982.
I. Proceedings relating to the applicant's application for a licence
to establish a pharmacy in Xanthi
Considering that he fulfilled all the requirements under the law,
the applicant claims to have applied to obtain a licence to establish
a pharmacy in Xanthi on 20 October 1982, 2 December 1985 and 23 June
1987. According to the applicant, the competent administrative
authority, in casu the Health Directorate of the Prefecture of Xanthi,
refused on all three occasions to register his applications, claimed
to have lost the documents submitted therewith and never replied.
On 18 January 1988 the applicant lodged a fourth application for
a licence to establish a pharmacy in Xanthi, which was served this time
on the Health Directorate of the Prefecture by a court bailiff.
Not having received a reply within three months, as he was
entitled to by law, the applicant had recourse to the Council of State
(Simvulio Epikratias) on 29 April 1988. The recourse of the applicant
was placed before the Fourth Division of the Council which requested
the case-file from the competent administrative authority and fixed a
hearing for 29 November 1988. The administration not having sent the
file, the hearing was postponed initially to 18 April 1989 and then to
13 February 1990 on the same ground.
On 10 January 1990 the applicant lodged a further application to
the Prefecture of Xanthi for a licence to establish a pharmacy.
On 15 January 1990 the Council renewed its request for the case-
file. On 24 January 1990 the Prefecture of Xanthi sent a file, which,
however, related to a subsequent application submitted by the applicant
on 10 January 1990. As a result, the hearing of 13 February 1990 was
postponed to 9 October 1990. On 18 April 1990 the Council of State
contacted the Prefecture of Xanthi once again with a view to obtaining
the correct case-file.
On 24 May 1990 the applicant withdrew the application he had
submitted to the Prefecture of Xanthi on 10 January 1990. On 9 October
1990 he informed the Council of State of his intention not to pursue
the action he had lodged against the tacit refusal of the Xanthi
Prefecture to grant his application of 18 January 1988.
II. Proceedings relating to the applicant's application for a licence
to establish a pharmacy in Komotini
On 25 May 1990 the applicant lodged an application for a licence
to establish a pharmacy in Komotini, a town near Xanthi, which was
served on the Health Directorate of the Prefecture of Rodopi by a court
bailiff.
Not having received a reply within three months, as he was
entitled to by law, the applicant again had recourse to the Council of
State on 28 September 1990. The recourse of the applicant was placed
before the Fourth Division of the Council which requested the case-file
from the competent administrative authority and fixed a hearing for 14
January 1992.
On 5 November 1991 the Ministry of Health requested the Health
Directorate of the Prefecture of Rodopi to send the case-file together
with its views on the applicant's case, which the Ministry would then
submit to the Council of State. On 10 December 1991 the Prefecture of
Rodopi informed the Ministry that it had not examined the applicant's
application because the latter had failed to submit a certified
photocopy of the document which recognised the equivalence of his
degree to a degree obtained from a Greek University, although he had
been orally informed that the uncertified photocopy of the document
submitted could not be taken into consideration. On 20 December 1991
the Ministry submitted the answer of the Prefecture to the Council of
State.
The hearing of 14 January 1992 was, nevertheless, adjourned to
9 June 1992, as the Council of State considered that it needed more
evidence, which it requested from the Prefecture of Rodopi on
25 May 1992. The evidence not having been submitted in time, the
hearing was again adjourned to 20 October 1992.
Faced with further delays in the submission of the evidence by
the administration, the Fourth Division of the Council of State decided
to postpone the hearing once more until 30 March 1993 and ordered the
Ministry of Health to send the evidence required within one month. On
18 February 1993 the Prefecture of Rodopi submitted the evidence
expressing the view that it had not replied to the applicant's
application because two of the documents he had submitted in
translation, namely his university degree and a certificate that he had
completed his studies, had not been certified by a Greek consular
authority.
On 21 September 1993 the Council of State decided in favour of
the applicant. The Council considered that the Prefecture could not
rely on the lack of certification of the documents mentioned in its
replies of 10 December 1991 and 18 February 1993 to refuse the
applicant's application. According to the applicant, the licence has
so far not been granted.
COMPLAINTS
1. The applicant complains under Article 3 in conjunction with
Article 14 of the Convention that he is subjected to degrading
treatment, not being able to establish a pharmacy because he is of
Turkish ethnic origin.
2. The applicant complains under Articles 6 and 13 of the Convention
of a violation of his rights to effective access to the courts and to
a hearing within a reasonable time. He submits in this connection that
the administration failed on several occasions to submit the case-file
to the Council of State, that the Council of State did not take the
necessary steps to obtain the case-file and that the proceedings were,
as a result, very lengthy.
3. The applicant finally complains under Article 1 of Protocol No.
1 that he is deprived of his livelihood, as he is not allowed to
practise his profession.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 July 1991 and registered on
18 July 1991.
On 2 March 1994 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 written observations were submitted on 14 June
1994, after an extension of the time-limit fixed for that purpose. The
applicant replied on 26 August 1994.
THE LAW
1. The applicant complains under Article 3 in conjunction with
Article 14 (Art. 3+14) of the Convention that he is subjected to
degrading treatment, his applications to establish a pharmacy being
refused because of his Turkish ethnic origin.
The Government submit that the complaint is incompatible ratione
temporis in that the applicant's first application to establish a
pharmacy was submitted in 1982, i.e. at a time when Greece had not
recognised the Commission's competence to examine individual
applications against it. In the Government's opinion, although the
applicant's subsequent four applications were submitted after
20 November 1985, the date contained in Greece's declaration under
Article 25 (Art. 25) of the Convention, they do not bring the complaint
within the Commission's competence, as they refer to the initial
application of 1982. Alternatively, the Government argue that the
applicant has not exhausted domestic remedies. The Government
distinguish between the applicant's first three applications to
establish a pharmacy in Xanthi, his fourth application to establish a
pharmacy in the same city and his application to establish a pharmacy
in Komotini. As regards the first three applications the Government
submit that they were not submitted in the form prescribed by domestic
law, as they were not served by a court bailiff. Moreover, the
applicant did not appeal against the Prefecture's tacit refusal within
the time-limit prescribed by law. As regards the fourth application the
Government argue that the applicant did not exhaust domestic remedies
because he withdrew his appeal. As regards the application to establish
a pharmacy in Komotini, the Government submit that the applicant never
raised before the Council of State the complaints he is now raising
before the Commission.
The applicant submits that his complaints fall within the
Commission's competence ratione temporis, because they concern either
a continuous situation or a series of repeated violations. He also
claims that he has exhausted domestic remedies.
The Commission considers it unnecessary to examine whether the
facts complained of disclose a continuous violation, because it is in
any event competent ratione temporis to examine the applicant's
complaints concerning the refusal of his second, third, fourth and
fifth application which were all submitted after 20 November 1985, the
date figuring in Greece's declaration under Article 25 (Art. 25) of the
Convention. Neither does the Commission consider it necessary to
pronounce on the issue of exhaustion of domestic remedies. In fact, the
applicant has failed to substantiate his complaint that he was treated
in a discriminatory way due to his ethnic origin. Even assuming that
the attitude of the administrative authorities towards him may have
been experienced by the applicant as somewhat degrading, such treatment
remains below the level of severity required under Article 3 (Art. 3)
of the Convention (Eur. Court H.R., Costello-Roberts judgment of
25 March 1993, Series A no. 247, p. 59, para. 30).
As a result, even assuming that the applicant has exhausted
domestic remedies, this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains under Articles 6 and 13 (Art. 6, 13) of
the Convention of a violation of his rights to effective access to the
courts and to a trial within a reasonable time.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention guarantees the right to a hearing within a reasonable time
in the determination of a person's civil rights and obligations and
that Article 13 (Art. 13) of the Convention guarantees the right to an
effective remedy for alleged violations of the rights and freedoms set
forth in the Convention.
The Government submit that the complaint is incompatible ratione
temporis because the court proceedings complained of resulted from the
authorities' refusal to satisfy an application which was originally
submitted in 1982. In their opinion, the complaint is also incompatible
ratione materiae because Article 6 para. 1 (Art. 6-1) of the Convention
does not apply to disputes concerning claims under public law, such as
the applicant's claim to a licence to open a pharmacy. The Government
further submit that the applicant has not exhausted domestic remedies.
He withdrew his appeal against the refusal of his fourth application
to establish a pharmacy in Xanthi. Moreover, he submitted his
application to the Commission before the conclusion of the proceedings
concerning his application to establish a pharmacy in Komotini and did
not refer at any stage of these proceedings to a violation of the
Convention. As regards the substance of the complaint concerning the
last set of court proceedings, the Government argue that the applicant
had access to an impartial and independent tribunal established by law
which examined his appeal within a reasonable time. The Council of
State cannot be held responsible for the delays in the proceedings
which were all caused by the applicant's opponent. Finally, the
Government argue that the applicant cannot claim to be a victim of a
violation of Article 6 (Art. 6) of the Convention, because the outcome
of the proceedings was favourable for him.
The applicant submits that his complaints fall within the
Commission's competence ratione temporis for the reasons referred to
above. He further argues that the court proceedings complained of
involved a determination of his civil right to establish a pharmacy.
In the applicant's submission, he was forced to withdraw his
application from the Prefecture of Xanthi as well as his Council of
State appeal because of the authorities' procrastination. The
applicant, moreover, argues that the Convention gives him the right to
complain of the length of the proceedings before their conclusion and
that there are no remedies under Greek law for alleged violations of
the right to a hearing within a reasonable time. He attributes the
delays in the proceedings to deliberate obstruction by the
administrative authorities and lack of diligence on the part of the
Council of State.
The Commission considers that the court proceedings complained
of fall within its competence ratione temporis, since they were
initiated after 20 November 1985, the date figuring in Greece's
declaration under Article 25 (Art. 25) of the Convention.
The Commission further recalls that Article 26 (Art. 26) of the
Convention provides the following :
"The Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken."
The Commission notes that the applicant's appeal against the
tacit refusal of the Xanthi Prefecture to grant his application of
18 January 1988 to establish a pharmacy in that city was withdrawn on
9 October 1990. However, the present application was introduced on
9 July 1991. As a result, the applicant's complaints under Article 6
para. 1 (Art. 6-1) of the Convention concerning the proceedings
relating to his application for a licence to establish a pharmacy in
Xanthi were not submitted within the six months' period provided for
under Article 26 (Art. 26) of the Convention.
The Commission also considers that the applicant cannot claim to
be a victim of a violation of the right of effective access to the
courts under Article 6 para. 1 (Art. 6-1) of the Convention in
connection with the second set of proceedings he instituted against the
tacit refusal of the Komotini Prefecture to grant him a licence to
establish a pharmacy, insofar as the outcome of these proceedings was
favourable to him (see, mutatis mutandis, No. 10888/84, Dec. 3.12.86,
D.R. 50 p. 90 and 15831/89, Dec. 25.2.91, D.R. 69 p. 317).
The Commission considers, however, that the same cannot be said
in respect of the alleged violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a
reasonable time in the same set of proceedings. There is no indication
that the Council of State quashed the Prefecture's tacit refusal to
provide redress for the applicant's specific complaint, neither did the
Council of State acknowledge expressly the existence of the breach of
the right to a hearing within a reasonable time (see No. 8858/80,
Dec. 6.7.83, D.R. 33 p. 5).
The Commission further considers that the applicant's complaint
concerning the right to proceedings of a reasonable length cannot be
rejected for non-exhaustion of domestic remedies either. In accordance
with the Commission's case-law, the burden of proving the existence of
available and sufficient domestic remedies lies upon the State invoking
non-exhaustion (No. 11208/84, Dec. 4.3.86, D.R. 41 p. 182) and in the
present case the Government have limited themselves to arguing non-
exhaustion without specifying what remedies were available to the
applicant. The fact that the application was lodged before the
conclusion of the proceedings, cannot amount to non-exhaustion, as the
Government argue (see, by implication, Eur. Court H.R., Neumeister
judgment of 27 June 1968, Series A, no. 8, p. 38, para. 7).
The Commission has finally examined the parties' remaining
observations and it considers that this part of the application 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 being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other ground for declaring it
inadmissible has been established.
As a result, the Commission considers that the applicant's
complaint concerning the length of the proceedings relating to his
application for a licence to establish a pharmacy in Komotini must be
declared admissible.
3. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he is deprived of his livelihood, as he is not allowed to
practise his profession.
The Government submit that the complaint must be rejected either
as incompatible ratione temporis or for non-exhaustion of domestic
remedies. The applicant disagrees.
The Commission considers that the particular complaint falls
within its competence ratione temporis. However, the Convention does
not guarantee the right to practise a particular profession. As a
result, this part of the application must be rejected as incompatible
ratione materiae with the provisions of the Convention under Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the length of the
proceedings relating to his application for a licence to
establish a pharmacy in Komotini;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy