EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 21782/93
Adman Raid
against
Greece
REPORT OF THE COMMISSION
(adopted on 18 April 1996)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15) 2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-27) 3
A.The particular circumstances of the case
(paras. 16-26) 3
B.Relevant domestic law
(paras. 27)4
III.OPINION OF THE COMMISSION
(paras. 28-44) 5
A.Complaint declared admissible
(para. 28)5
B.Point at issue
(para. 29)5
C.As regards Article 6 para. 1 of the Convention
(paras. 30-43) 5
1.The applicability of Article 6 para. 1 of the Convention
(paras. 31-36) 5
2. Compliance with Article 6 para. 1 of the Convention
(paras. 37-43) 6
CONCLUSION
(para. 44)7
APPENDIX :DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION 8
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a Greek citizen, born in 1945 and resident in Xanthi. He was represented before the Commission by Mr. T. Akillioglu, a lawyer practising in Ankara, Turkey.
3.The application is directed against Greece. The respondent Government were represented by their Agent, Mr. L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), and Mrs. M. Telalian, member of the Special Legal Service (Idiki Nomiki Ipiresia) of the Ministry of Foreign Affairs.
4.The case concerns the length of proceedings instituted by the applicant to challenge a decision of the Regional Board for Elementary Education of the Prefecture of Xanthi imposing on him the disciplinary penalty of one year's suspension from teaching. The applicant invokes Article 6 para. 1 of the Convention.
B.The proceedings
5.The application was introduced on 3 March 1993 and registered on 30 April 1993.
6.On 4 July 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.
7.The Government's observations were submitted on 12 December 1994 after an extension of the time-limit fixed for this purpose. These observations were received on 17 January 1995. The applicant replied on 9 March 1995. On 3 March 1995, the Commission granted the applicant legal aid for the presentation of his case.
8.On 26 June 1995 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention concerning the length of the proceedings. It declared inadmissible the remainder of the application.
9.The text of the Commission's decision on admissibility was sent to the parties on 19 July 1995. and they were invited to submit such further information or observations on the merits as they wished. No further submissions were received from the parties.
10.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.
C.The present Report
11.The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:
MM.S. TRECHSEL, President
H. DANELIUS
C.A. NØRGAARD
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs.G.H. THUNE
Mr.F. MARTINEZ
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. ŠVÁBY
G. RESS
A. PERENIČ
C. BÎRSAN
12.The text of this Report was adopted on 18 April 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
13.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
14.The Commission's decision on the admissibility of the application is annexed hereto.
15.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
16.In 1967 the applicant started working as a teacher in the minority primary school of Iliopetra in Thrace. In 1982 he moved to a minority primary school in Xanthi. He always provided his services on the basis of contracts governed by private law.
17.On 30 November 1983 the First Instance Civil Court (Monomeles Protodikio) of Rodopi, by way of interim measures, ordered the "Union of Turkish Teachers of Western Thrace" (hereafter the Union) to refrain from using the words "Turk" and "Turkish", inter alia, in any material printed by them (decision No. 206/83). On 12 December 1984 the Union was dissolved by the First Instance Civil Court of Xanthi (decision No. 300/84).
18.On 1 November 1985 a letter was sent by the Union to the minority schools of Thrace in which the Union was referred to by its full title and a local village by its Turkish name. At the time the applicant was a member of the Union's committee.
19.On 2 July 1986 the Minority Schools Office of the Prefecture of Xanthi instituted disciplinary proceedings against the applicant, whom it considered responsible for the distribution of the above-mentioned letter.
20.On 27 December 1986 the Court of Appeal (Efetio) of Rodopi upheld the decision of the First Instance Civil Court of Xanthi by which the Union had been dissolved. The Union appealed in cassation. On a date which has not been specified the Court of Cassation (Arios Pagos) issued an interim decision which gave suspensive effect to the Union's appeal (No. 361/87).
21.On 26 February 1987 the Regional Board for Elementary Education of the Prefecture of Xanthi, having heard the applicant in person, decided to impose on him the disciplinary penalty of one year's suspension from teaching in both public and private schools. The applicant was punished because "in his capacity as member of the committee of the Union of Muslim Teachers of Western Thrace, he printed and distributed a document .... in which he used the term 'Turkish teachers' .... and old Turkish names of villages .... in breach of international agreements, the laws of the Greek State and a recent .... decision of the Court of Appeal of Thrace." The decision of the Regional Board was communicated to the applicant by letter of 29 June 1987.
22.On 19 August 1987 the applicant challenged the decision of the Regional Board of 26 February 1987, as well as the letter of 29 June 1987, before the Council of State (Simvulio tis Epikratias). The applicant claimed that he could not have committed the disciplinary offence because, first, he was not authorised to sign documents issued by the Union, secondly, the disciplinary authorities had not shown him the letter of 1 November 1985, thirdly, the use of the term "Turkish teachers" was not in itself harmful to the interests of the State and, fourthly, the charges were vague. He further contended that he had been tried by an incompetent and not properly constituted organ and that the decision against him was not adequately reasoned. Finally, he argued that the disciplinary authorities had acted ultra vires, their real aim being the disruption of the normal functioning of the Union. The writ of appeal was filed by the applicant's counsel.
23.On 17 October 1991 the Council of State held a hearing on the applicant's appeal in which neither the applicant nor his counsel appeared.
24.On 5 March 1992 the Council of State declared the applicant's appeal inadmissible under Article 27 of the presidential decree 18/1989, reasoning as follows: "The writ of appeal was filed by counsel. However, the applicant's counsel did not appear at the hearing. Neither did the applicant appear to declare that he approved of the writ, nor did he submit before the hearing a notarial deed."
25.The decision of 5 March 1992 of the Council of State was notified to the applicant on 3 February 1993.
26.On 2 February 1994, i.e. one day before the expiry of the period of suspension, the Minority Schools Office of the Prefecture of Xanthi informed the applicant that he could not resume his duties in the school where he used to work, because there were no posts available. The Office indicated that the applicant could, nevertheless, reapply should a vacancy arise.
B.Relevant domestic law
27.Article 27 of the presidential decree 18/1989, which codified all legal provisions concerning the Council of State, reads as follows:
"1. The counsel's authority to act must be based on either a notarial deed or an oral declaration at a court hearing.
........
2. It is assumed that counsel acted on the authority of a litigant when filing the writ of appeal or taking various steps at the pre-trial stage, if the litigant is represented by counsel at the hearing, if the litigant declares in person at the hearing that he approves of the filing of the writ, or if a notarial deed is submitted. Otherwise, the appeal is rejected as inadmissible ....."
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
28.The Commission has declared admissible the applicant's complaint relating to the length of the proceedings.
B.Point at issue
29.The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.
C.As regards Article 6 para. 1 (Art. 6-1) of the Convention
30.Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:
"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ..."
1.The applicability of Article 6 para. 1 (Art. 6-1) of the Convention
31.The applicant submits that Article 6 para. 1 (Art. 6-1) of the Convention applies in the proceedings in question. Although he is assimilated in certain respects to a civil servant, he provides his services on the basis of a private law contract and his salary is paid by the Turkish community. Moreover, his suspension put his physical and social existence at risk and thus the proceedings involved a determination of his civil rights and obligations.
32.The Government contest the applicability of Article 6 para. 1 (Art. 6-1) of the Convention in the proceedings before the Council of State. Although the applicant provided his services on the basis of a private law contract, he was subject to the duties and responsibilities of a civil servant. As a result, the disciplinary proceedings against him could not give rise to a dispute over civil rights and obligations. Neither could it be argued that he faced a criminal charge, as this notion has been interpreted in the Court's and the Commission's case-law. Moreover, his failure to be represented at the hearing before the Council of State prevented the court from determining the dispute.
33.The Commission recalls that Article 6 para. 1 (Art. 6-1) extends to "disputes" (contestations) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the "result" of the proceedings must be "directly decisive" for the right in question (see Eur. Court H.R., Zander judgment of 25 November 1993, Series A no. 279, p. 38, para. 22).
34.The Commission notes that the applicant, who had always worked as a teacher in minority schools, instituted the proceedings in question to have annulled an administrative decision imposing on him the disciplinary penalty of one year's suspension from teaching. Although the Government argue that the applicant was subject to the duties and responsibilities of a civil servant, the Commission considers that the applicant's conditions of employment were different from those of a civil servant, in that they were governed by a private law contract. In this respect, the applicant's employment situation shows many similarities with that of the applicants in the cases of Preikhzas (Comm. Report 13.12.78, D.R. 16 p. 5) and Darnell (No. 15058/89, Dec. 10.4.91, D.R. 69 p. 306) where Article 6 (Art. 6) was held to apply in court proceedings instituted by the applicants to contest their suspension or dismissal.
35.Moreover, the Commission considers that no adverse inferences could be drawn as to existence of a "serious and genuine dispute", as the Government appear to argue, from the applicant's failure to appear or be represented at the hearing of 17 October 1991.
36.In these circumstances, the Commission finds that there existed a serious and genuine dispute over the applicant's civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
37.The applicant submits that there were many delays in the proceedings for which the judicial authorities were entirely responsible. The failure of his counsel to appear at the hearing of 17 October 1991 cannot provide an excuse.
38.The Government submit that Article 6 para. 1 (Art. 6-1) was not violated.
39.The Commission considers that the period to be taken into consideration begins on 19 August 1987, when the applicant lodged his action before the Council of State and ends on 3 February 1993 when the applicant was notified of the decision of the Council of State. The length of time to be examined under Article 6 para. 1 (Art. 6-1) of the Convention thus amounts to five years, five months and fifteen days.
40.The Commission recalls that the reasonableness of 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 and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
41.The Commission notes the existence of the following periods of inactivity imputable to the State: a first period of inactivity between 19 August 1987, when the applicant lodged his action and 17 October 1991, when the case came for hearing, a second period of inactivity between 17 October 1991 and 5 March 1992, when the Council of State pronounced its decision and a third period of inactivity between 5 March 1992 and 3 February 1993, when the applicant was notified of the decision. The Commission considers it understandable that the authorities might have felt a certain lack of urgency in the handling of the case after the hearing of 17 October 1991, because under domestic law the applicant's failure to appear or be represented at that hearing would and did result in the inadmissibility of his action. It also considers, however, that no convincing explanation has been advanced by the Government for the delay of four years, one month and twenty-eight days between the lodging of the applicant's action and the hearing.
42.The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).
43.In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.
CONCLUSION
44.The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy