FINAL
AS TO THE ADMISSIBILITY OF
Application No. 14003/88
by Nicholas PHILIS
against Greece
The European Commission of Human Rights sitting in private
on 11 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. C. ROZAKIS
L. LOUCAIDES
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 24 June 1989
by Nicholas Philis against Greece and registered on 5 July 1988 under
file No. 14003/88;
Having regard to
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 9 May 1989 to adjourn the
examination of the applicant's complaints concerning the civil
proceedings and declare the remainder of the application inadmissible;
- the written observations submitted by the respondent
Government on 27 July 1989;
- the applicant's letter of 8 August 1989 by which he maintains
the arguments put forward in his initial pleadings;
Having deliberated
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant is a Greek citizen, born in 1937, and a
private consultant engineer, having had a technical bureau in Athens
since 1970. The applicant's two other applications concerning civil
proceedings in the context of litigation between him and the public
bodies Organismos Ergatikis Katoikias (Application No. 12750/87) and
Paidiko Nosokomeio Pentelis (Application No. 13780/88) are pending
before the Commission. The present application refers to civil
proceedings concerning litigation between the applicant and a certain
A.S., as well as criminal proceedings brought against the applicant.
In November 1980 A.S. assigned to the applicant a design
project concerning electromechanical installations in the town of
Amfilohia.
Following disagreement on the fee to be paid, the applicant
asked the Technical Chamber of Greece (TEE) on 30 June 1981 to sue
A.S. for the purpose of recovering the fee for the work he had carried
out. Pursuant to the provisions of the Royal Decree (Vassiliko
Diatagma) 30/1956 as modified by Royal Decree 188/1966, the TEE
is exclusively authorised to claim design project remuneration in
substitution for the engineer. By letters of 20 January 1982,
30 March 1983 and 13 January 1984 the applicant repeated his request.
On 16 December 1985 the TEE lodged an action against A.S. with
the Court of Athens (Monomeles Protodikeio Athinon). The applicant
did not join as co-plaintiff.
On 24 April 1986 the Court of Athens gave its decision accepting
a part of the TEE's claims.
The TEE and A.S. appealed against this decision. On 11 June
1987 the Athens Court of Appeal (Efeteio Athinon) found in favour of
the TEE and ordered A.S. to pay 139.336 Dr., plus the interest due on
that amount. However, a TEE claim concerning readjustment of the
applicant's remuneration in relation to inflation rates was rejected
because no specific amount was claimed in the action. This decision
became final on 1 September 1987.
By letter of 10 July 1987 the applicant complained to the TEE
that his case was not duly presented to the competent courts. He also
requested the TEE to take action for enforcement of the decision.
On 9 May 1988 the applicant complained again to the TEE.
Referring to his previous correspondence he claimed that the TEE
delayed the introduction of the action, that the calculation of the
fee claimed was erroneous, that the TEE failed to claim the specific
remuneration for the preparation of tenders and adjustment of
the amount of the fee in relation to inflation rates and that it
unreasonably delayed the enforcement procedure. He also requested
redress of the damage caused by negligence of the TEE.
On 6 July 1988 the TEE replied that in the applicant's case no
negligence could be imputed to the TEE and that in any event the
applicant had not shown that he had suffered any damage.
COMPLAINTS
1. The applicant complains that he has not been given a right to
a tribunal for his claims against A.S., since the TEE is exclusively
authorised to claim and receive the fee for design projects executed
by engineers. He points out that the amount claimed by the TEE was
erroneously calculated and that the TEE has failed to claim the
specific fee for the preparation of tenders. Moreover the applicant
complains of the fact that the TEE delayed the introduction of the
action against A.S. for four years and six months and submits that
this delay has increased the total length of his litigation with A.S.
which has exceeded seven years.
The applicant invokes Article 6 para. 1 of the Convention.
2. He also alleges that the TEE's conduct in the context of
this litigation deprived him of his remuneration claims. He invokes
Article 1 of Protocol No. 1 to the Convention, alleging that his
claims are "possessions" within the meaning of that provision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 June and registered on
5 July 1988.
The Commission examined the question of the admissibility of
the application on 5 and 9 May 1989. It decided to bring the
application to the notice of the respondent Government and invite them
to submit written observations on the admissibility and merits of the
complaints concerning the civil proceedings. The Commission declared
inadmissible certain complaints by the applicant relating to criminal
proceedings against him (cf. partial decision of 9 May 1989).
The Government submitted their observations on 25 July 1989.
By letter of 8 August 1989, the applicant referred in reply to his
previous submissions and arguments.
THE LAW
1. The applicant complains that due to the provisions of Royal
Decree 30/1956 he did not have effective access to a court. He
invokes Article 6 para. 1 (Art. 6-1) of the Convention, which in its
first sentence provides:
"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 Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention secures to everyone the right of access to a court to
determine any claim relating to his civil rights (cf. Eur. Court H.R.,
Golder judgment of 21 January 1975, Series A No. 18, p. 18, para. 36).
The Government have submitted that Greek law secures to the
applicant sufficient access to a court. They submit in particular
that the applicant is entitled to lodge an "oblique action"
(plagiastiki agogi) with the competent courts in case the TEE refuses
to institute proceedings. He can, moreover, sue his debtors,
exercising the TEE's procedural rights pursuant to Articles 730 and
following of the Civil Code (Astikos Kodix) concerning voluntary
agency (dioikisi allotrion). Furthermore, the applicant can,
according to the provision of Royal Decree 30/1956, bring an ancillary
interpleader action (prostheti paremvasi) and join the TEE in the
proceedings as co-plaintiff or co-defendant. Finally, the Government
submit that the applicant can introduce an action claiming indemnity
for the damages caused by an eventual refusal by the TEE to institute
proceedings.
The applicant contends that neither the ancillary interpleader
action he is entitled to lodge, nor the compensation action against
the TEE can be considered as guaranteeing him sufficient access to the
court. He moreover submits that the possibilities of bringing an
"oblique action" or of taking action against his debtors as a
"voluntary agent" (dioikitis allotrion) of the TEE are purely
theoretical.
The Commission considers that the case raises an issue as to
whether the applicant has access to a court for the determination of
his civil claims in relation to the design project he carried out for
A.S. The questions of fact and law in this respect are of such a
complex nature that their determination requires an examination of the
merits. It follows that this aspect of the application cannot be
considered manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. It must, therefore, be declared
admissible, no other ground for declaring it inadmissible having been
established.
2. The applicant also complains of the length of the proceedings
concerning his litigation with AS. He alleges in particular that the
proceedings commenced on 30 June 1981 when he requested the TEE to
lodge an action against A.S. In his view the proceedings lasted more
than seven years. The applicant invokes Article 6 para. 1 (Art. 6-1)
of the Convention.
The Commission notes that the conduct of the TEE before the
introduction of the action cannot be imputed to the competent judicial
authorities. It observes that the proceedings, as such, began on 16
December 1985 and ended by the decision of the Athens Court of Appeal
on 11 June 1987. The total length of the proceedings before both the
Court of Athens and the Athens Court of Appeal does not exceed 18
months. Having regard to the complexity of the case, the Commission
finds that this period cannot be considered to be unreasonably
lengthy.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains that due to the TEE's conduct
in the course of the proceedings, his claims were partially rejected.
He submits that the TEE's conduct affected his right to peaceful
enjoyment of his possessions. In this respect he alleges that his
claims should be regarded as "possessions" within the meaning of
Article 1 of Protocol No. 1 (P1-1) to the Convention.
The Commission has previously held that a "debt" can
constitute a "possession" for the creditor (No. 7742/76, Dec. 4.7.78,
D.R. 14 p. 146 and No. 7775/77, Dec. 5.10.78, D.R. 15 p. 143), but the
existence of such debt must have been established. In the present case
the part of the applicant's claims which has been rejected by the
domestic courts cannot be regarded as established and therefore it
cannot constitute a "possession" within the meaning of Article 1 of
Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES ADMISSIBLE without prejudging the merits, the
complaint regarding the access of the applicant to a court
with regard to his civil claims
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