AS TO THE ADMISSIBILITY OF
Application No. 35426/97
by Dimitra STAIKU
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 3 January 1997 by
Dimitra STAIKU against Greece and registered on 25 March 1997 under
file No. 35426/97;
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 citizen, born in 1943. She is a nurse
in the army and resides in Athens. In the proceedings before the
Commission she is represented by Messrs. V. Polichronopoulos and
P. Koukoulakos, both lawyers practising in Athens.
The facts of the case, as they have been submitted by the
applicant, can be summarised as follows:
On 5 October 1960 the applicant joined the armed forces. On
23 June 1967 she was dismissed because she got married within less than
five years from joining the army, which was at the time against the
regulations.
On 31 December 1984 the applicant was rehired in the armed
forces, her dismissal having been considered to constitute a breach of
her fundamental rights. On 25 January 1988 the applicant requested that
she should be promoted to the rank which she would have had if she had
not remained outside the armed forces between 23 June 1967 and
31 December 1984. On 17 February 1988 she received a negative reply.
On 17 March 1988 the applicant challenged the refusal of the
authorities to promote her before the Administrative Court of Appeal
(Diikitiko Efetio) which was competent to hear the dispute as a first
instance court. The administrative court heard the case on
20 January 1989. On 21 February 1989 the court upheld the refusal of
the authorities on the ground that the law which provided for the
rehiring of the applicant did not provide for her full rehabilitation
insofar as rank was concerned. The court further considered that the
provisions of the Constitution of 1975 which guaranteed the free
development of one's personality and protected marriage and motherhood
did not create an obligation for the legislator to redress
retrospectively and in full a breach which had occurred before the
entry into force of the Constitution. If the legislator wished to
provide such redress it remained free to set the modalities.
On 14 February 1990 the applicant appealed to the Council of
State (Simvulio Epikratias), invoking inter alia Article 12 of the
Convention. The Council held a hearing on 16 November 1995. On
28 June 1996 the Council rejected her appeal with the same reasoning
as the Administrative Court of Appeal. The applicant was notified of
this decision on 13 November 1996.
COMPLAINTS
1. The applicant complains under Article 12 of the Convention about
her dismissal from the army.
2. The applicant complains under Article 6 para. 1 of the Convention
about the length of the proceedings.
THE LAW
1. The applicant complains under Article 12 (Art. 12) of the
Convention about her dismissal from the army.
The Commission recalls that Greece has recognised the competence
of the Commission to examine individual applications concerning facts
which occurred after 19 November 1985. However, the applicant was
dismissed from the army on 23 June 1967.
It follows that this part of the application is incompatible
ratione temporis and that it must be rejected as incompatible with the
provisions of the Convention under Article 27 para. 2 (Art. 27-2)
thereof.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the proceedings she instituted to
challenge the refusal to promote her.
The Commission recalls that, according to the case-law of the
court, disputes relating to the recruitment, careers and termination
of service of civil servants are as a general rule outside the scope
of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court HR,
Neigel v. France judgement of 17 March 1997, para. 43). The applicant
is a civil servant and the proceedings she instituted before the
administrative courts concerned her career. As a result, Article 6
para. 1 (Art. 6-1) of the Convention does not apply.
It follows that this part of the application incompatible ratione
materiae and that it must be rejected as incompatible with the
provisions of the Convention under Article 27 para. 2 (Art. 27-2)
thereof.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy