AS TO THE ADMISSIBILITY OF
Application No. 14486/88
by P.
against Greece
The European Commission of Human Rights sitting in private
on 7 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1988
by P. against Greece and registered on 19 December 1988 under file
No. 14486/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the writiten observations submitted by the
respondent Government on 11 June 1990;
Having regard to the observations in reply submitted by the
applicant on 25 June and 27 July 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties can be
summarised as follows.
The applicant is a Greek citizen resident in Athens. He is a
journalist and publisher. In the proceedings before the Commission the
applicant is represented by Mr. P. Bernitsas, a lawyer at the Athens Bar.
In 1964 the applicant entered into an agreement with the Greek
Radio and Television (Elliniki Radiofonia kai Tileorasi - ERT), a
public broadcasting enterprise which is under the control of the State
and is a legal entity under private law. The agreement provided that the
applicant would be employed as commentator on current economic issues.
In October 1981 the Board of Directors of the ERT informed the
applicant that it intended to restructure the information programmes
concerning issues on economic policy.
On 14 January 1982 the applicant was informed that he was
considered to have tacitly terminated his contract.
On 8 April 1982 the applicant lodged an action against the ERT
with the Athens First Instance Court (Monomeles Protodikeio) and
requested that the termination notice he received on 14 January 1982 be
declared null and void and that the defendant be obliged to re-employ
him and pay him 803,700 Drachmae for delayed salary.
On 23 September 1983 the Athens First Instance Court gave its
decision accepting the applicant's claims. It found in particular that
the applicant did not belong to the so-called "internal staff" of the
ERT and that he did not have to work in the premises of the ERT, but
that he was a kind of free-lance collaborator who, in order to execute
the work entrusted to him, ought to contact specialists on economic
issues and consult economic literature not available in the ERT
premises. The Court found that the reasons invoked by the ERT for the
termination of the agreement, namely the fact that the applicant did
not come to work at a fixed time during the two months preceding the
termination notice, could not constitute a violation of the agreement.
On 17 November 1983 the ERT appealed against the above
decision.
On 21 March 1984 the Athens Court of Appeal (Efeteio) quashed
the judgment of the Athens First Instance Court and rejected the
applicant's claims. It found that the applicant was obliged to come
to the ERT premises at short intervals and that he did not respect
this obligation during the two months preceding the termination
notice.
The applicant appealed (anairesi) to the Court of Cassation
(Areios Pagos) on 2 April 1984.
In his written pleadings he submitted, inter alia, that the
reasons invoked by the ERT for the termination of his contract, namely
the fact that he had not come to work at fixed hours, was only a
pretext. He noted that during the military regime he also had been
considered as having tacitly terminated his contract although the
reasons for his dismissal were obviously different. The applicant
concluded that he would leave to the discretion of the court, without
any comments, the appreciation of the attempt by his opponents to
introduce "new morals" into the social and judicial life of the country.
The Court of Cassation fixed the date of the hearing of the
case at 4 December 1984. However, the hearing was adjourned until
28 May 1985. On that date it was further adjourned because of the
general legislative elections. On 8 October 1985 the hearing was
again adjourned because of a lawyers' strike. It was finally held on
8 April 1986.
On 20 May 1986 the Court of Cassation annulled the decision of
the Court of Appeal. The Court found that the challenged decision did
not specify whether the applicant could be considered to belong to the
ordinary staff of the ERT. The Court referred the case to its fourth
chamber to decide on the merits of the applicant's action.
The fourth chamber of the Court of Cassation decided on
13 April 1987, after a hearing held on 13 February 1987, to examine the
applicant, the staff director of the ERT and two further witnesses.
The examination of the witnesses took place on 12 and 13 February,
and on 4 March 1988.
On 9 June 1988 the Court of Cassation gave its decision
rejecting the applicant's action.
COMPLAINTS
1. The applicant complains that the proceedings concerning his
action against the ERT were unreasonably lengthy and invokes Article 6
para. 1 of the Convention.
2. The applicant moreover alleges that he was dismissed for
political reasons and in particular for the ideas he expressed in his
comments on economic policy issues and finds that his dismissal
constitutes an interference with his right to freedom of expression.
Furthermore he claims that he was treated differently from his other
colleagues and alleges that he suffered discrimination.
The applicant invokes Article 10 of the Convention taken alone
and in conjunction with Article 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 December 1988 and
registered on 19 December 1988.
On 2 April 1990 the Commission decided in accordance with Rule
42 para. 2 (b) of its Rules of Procedure that notice should be given
to the Government of Greece of the application and that they be
invited to submit wrritten observations on the admissibility and
merits of the application.
The Government submitted these observations on 11 June 1990.
The applicant submitted observations in reply on 25 June and
27 July 1990.
THE LAW
1. The applicant complains of the length of the court proceedings
concerning his action against the ERT.
He invokes Article 6 para. 1 (Art. 6-1) of the Convention the
first sentence of which reads as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Government submit that any possible delays in the
proceedings complained of were essentially due to the conduct of the
parties. They also note that a certain delay was due to the general
elections of May 1985 and to a lawyers' strike later that year. These
are facts which cannot be imputed to the competent judicial
authorities. The Government also submit that the proceedings before
the Athens Court and the Court of Appeal were expeditious. The
proceedings before the Court of Cassation lasted more than three
years. In this respect they note that the Court of Cassation gave a
first judgment quashing the decision of the Court of Appeal and
examined subsequently the merits of the applicant's claim after having
heard several witnesses. Referring to the case-law of the European
Court of Human Rights, the Government conclude that in these
circumstances the length of the proceedings before the Court of
Cassation cannot be regarded as unreasonable.
The applicant emphasises the fact that his case was pending
before Greek courts for more than six years. He also notes that
according to Article 32 of Law 1545/1985 labour court proceedings
should be particularly expeditious.
The Commission considers that this part of the application
raises complex questions of fact and law which require an examination
of the merits. It follows that this part of the application cannot be
considered manifestly ill-founded and must, therefore, be declared
admissible, no other grounds for declaring it inadmissible having been
established.
2. The applicant also complains that he was dismissed for
political reasons and that this fact constitutes an unjustified
interference with his right to freedom of expression. He invokes
Article 10 (Art. 10) of the Convention taken alone and in conjunction
with Article 14 (Art. 14) of the Convention.
The Government submit that the applicant has not exhausted the
domestic remedies with regard to the above complaint. The applicant
contends that he submitted this complaint before the national courts
dealing with his case.
The Commission recalls that the mere fact that an applicant
has submitted his case to the various competent courts does not itself
constitute compliance with the provisions of Article 26 (Art. 26) of the
Convention, which requires that all domestic remedies must have been
exhausted according to the generally recognised rules of international
law. It is also required that the substance of the complaint made
before the Commission should have been raised during the proceedings
concerned.
In the present case the applicant has insinuated in the
domestsic proceedings that the termination of his contract was
motivated by political reasons. He did not, however, submit that his
dismissal infringed his right to freedom of expression although it was
possible for him to submit such complaint on the basis of Article 10
of the Convention, which directly applies in Greece, or on the basis
of equivalent guarantees under the Greek constitution. Therefore, he
did not raise, either in form or in substance, the complaint which he
now makes before the Commission. Moreover, an examination of the case
does not disclose the existence of any special circumstances which
might have absolved the applicant, according to the generally
recognised rules of international law, from raising his complaint in
the proceedings referred to.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and that this part
of the application must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejuding the merits of the
case, the complaint regarding the length of the proceedings.
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy