AS TO THE ADMISSIBILITY OF
Application No. 24960/94
by Theodoros PAPOULAKOS
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mrs. J. LIDDY, Acting President
MM. C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 15 April 1994 by
Theodoros PAPOULAKOS against Greece and registered on 22 August 1994
under file No. 24960/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek national, born in 1942 and residing in
Athens.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant studied law in Italy and graduated in February
1982. In May 1982 he was admitted as an avocat stagiaire to the Bar of
Rome, acquiring thereby the right to plead before the single member
first instance pretore courts of the Rome judicial district. The
applicant has been so far unsuccessful in his repeated attempts to pass
the examinations of admission to the Bar of Rome.
On 18 August 1986 and 11 November 1987 the applicant submitted
two applications to the Athens Bar to be admitted as a member. The
applicant relied on Article 52 of the treaty establishing the European
Economic Community, which guarantees the freedom of establishment,
arguing that he had the right to practise law in Italy. Having received
no reply, the applicant challenged the Bar's failure to respond before
the Council of State by lodging two requests for the annulment of the
Bar's implicit rejection of his applications on 15 September 1986 and
6 April 1988.
On 12 April 1989 the Council of State requested the Athens Bar
to submit to it the applicant's case-file. On 4 May 1989 the Athens Bar
replied that no such file existed in its archives. On 19 June 1990 the
Council of State renewed its request submitting to the Athens Bar
copies of the applicant's applications of 18 August 1986 and
11 November 1987. Two reminders were sent by the Council to the Bar on
18 October 1990 and 23 March 1991.
Having received no reply, the Council of State issued on
31 October 1991 an interim decision (No. 3002/91) ordering the Athens
Bar to notify the Council whether the applicant had lodged the
applications of 18 August 1986 and 11 November 1987 and, if so, to
submit to the Council the complete case-file.
On 9 January 1992 the applicant lodged a criminal complaint with
the Public Prosecutor of Athens against the President of the Athens
Bar. On 5 February 1992 the Bar of Athens notified the Council of State
that it had received the applicant's applications of 18 August 1986 and
11 November 1987, failing, however, to submit the case-file.
On 16 April 1992 the Council of State held that the Bar had
violated its legal obligations by failing to reply to the applicant's
application of 11 November 1987 (decision No. 1524/92). Given the
direct effect of Article 52 of the EEC Treaty, the Council considered
that the Bar should have either accepted the applicant's request or
rejected it in a reasoned manner.
On 29 July 1992 the applicant lodged a new application with the
Athens Bar submitting a copy of the Council of State's decision
No. 1524/92. He also lodged an application to the Council of State
under a special procedure for the correction of textual mistakes in
court decisions. The applicant argued that there was a textual mistake
in that the decision of 16 April 1992 did not recognise expressis
verbis his right to practise law in Greece.
On 30 July 1992 and on 15 February 1993 the applicant lodged with
the Public Prosecutor criminal complaints against the representatives
of the Athens Bar for failure to comply with the decision of the
Council of State.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that
he did not have a hearing within a reasonable time in the determination
of his right to practise law in Greece under Article 52 of the Treaty
establishing the European Economic Community.
2. The applicant further complains under Article 6 of the Convention
of the failure of the Athens Bar to comply with the decision of the
Council of State of 16 April 1992.
3. The applicant complains under Article 6 of the Convention of the
failure of the public prosecutor to institute criminal proceedings
against the representatives of the Bar further to the criminal
complaints the applicant had lodged against them.
4. The applicant complains that the refusal of the Athens Bar to
admit him as a member amounts to inhuman, degrading and discriminatory
treatment contrary to Articles 3 and 14 of the Convention.
THE LAW
1. The applicant complains that he did not have a hearing within a
reasonable time in the determination of his right to practice law in
Greece under Article 52 of the Treaty establishing the European
Economic Community. He invokes in this connection Article 6
(Art. 6) of the Convention.
The Commission recalls that Article 6 (Art. 6) of the Convention
provides that in the determination of his civil rights and obligations
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
It further recalls that, in accordance with the case-law of the
Court, Article 6 para. 1 (Art. 6-1) of the Convention extends only to
disputes over civil rights which can be said, at least on arguable
grounds, to be recognised under domestic law; it does not in itself
guarantee any particular content for civil rights in the substantive
law of the Contracting States (Boden judgment of 27 October 1987,
Series A no. 125, p. 39, para. 28). The Commission notes that Community
law forms part of domestic law in those Contracting States, such as
Greece, which are members of the European Union.
The Commission notes, however, that the applicant is not a full
member of an Italian Bar but an avocat stagiaire. This entitles him to
appear before certain Italian courts. However, his full admission to
the Bar is subject to further assessment after a period of training.
The Commission considers that, in these circumstances, the
applicant could not claim on arguable grounds the right to be
automatically admitted to full practice at the Athens Bar on the basis
of Community law. As a result, Article 6 para. 1 (Art. 6-1) of the
Convention does not apply to the dispute arising out of the failure of
the Athens Bar to consider his application and this complaint must be
rejected as incompatible ratione materiae with the provisions of the
Convention in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains under Article 6 (Art. 6) of the
Convention of the failure of the Athens Bar to comply with the decision
of the Council of State of 16 April 1992.
The Commission considers that the proceedings before the Council
of State which led to the decision of 16 April 1992 did not involve the
determination of a civil right under Article 6 (Art. 6) of the
Convention. As a result, this complaint must be rejected as
incompatible ratione materiae with the provisions of the Convention in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention of the failure of the public prosecutor to institute
criminal proceedings against the representatives of the Bar further to
the criminal complaints the applicant had lodged against them.
The Commission recalls that the right to institute criminal
proceedings against public officials is not guaranteed under the
Convention.
As a result, this complaint must be rejected as incompatible
ratione materiae with the provisions of the Convention in accordance
with Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains that the refusal of the Athens Bar to
admit him as a member amounts to inhuman, degrading and discriminatory
treatment contrary to Articles 3 and 14 (Art. 3, 14) of the Convention.
However, insofar as the matters complained of have been
substantiated and 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.
This part of the application must be, therefore, rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the First Chamber of the First Chamber
(M.F. BUQUICCHIO) (J. LIDDY)
Full & Egal Universal Law Academy