SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50529/99
by TEKA LTD
against Greece
The European Court of Human Rights (Second Section), sitting on 6 September 2001 as a Chamber composed of
MrA.B. Baka, President,
MrC.L. Rozakis,
MrG. Bonello,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 15 July 1999 and registered on 24 August 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Teka Ltd, is a Bulgarian company registered in Sofia. It is represented before the Court by Mr P. Bitsaxis and Mrs E. Ioannidou, lawyers practising in Athens.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 1993 the applicant sold to a Greek company, Apco Control Valves, a machine for manufacturing valves, for the price of 89 000 US dollars (USD). It was agreed that part of the amount would be paid by two promissory notes issued in March 1994 in Salonica. However, Apco refused to pay the amount due.
On 5 July 1995 the applicant applied to the First Instance Court of Salonica, composed of one member, requesting the issuance of an order to pay. On 17 July 1995 the Court ordered Apco to pay to the applicant 53 700 USD plus interest.
On 8 September 1995 Apco lodged an appeal against the order to pay before the three-member First Instance Court of Salonica.
On 15 September 1995 Apco also requested a stay of execution of the order to pay. The First Instance Court of Salonica, composed of one member, granted the request on 9 October 1995, pending a final decision on the appeal before the three-member First Instance Court. It based its decision on the strong chances of success of the appeal.
The hearing before the three-member Court of First Instance was held on 17 December 1996. The Court deliberated on 4 February 1997 and on 17 April 1997 the Court delivered an interlocutory decision whereby it invited Apco to prove its allegations according to which the machine was defective. The decision provided that two witnesses for each party should be examined within three months from the service of the decision.
The President of the Court certified the interlocutory decision on 18 September 1997 and a copy of it was served by the applicant on Apco on 1 October 1997.
On 3 November 1997 the applicant invited Apco to allow an engineer of the applicant to inspect the machine. On 12 November 1997 Apco dismissed the request; it claimed that as the case was still pending before the courts an expert evaluation should be carried out according to the provisions of the Code of Civil Procedure.
As a result none of the two parties fixed a date for the examination of the witnesses and the time-limit lapsed without any witness being examined.
On 20 February 1998 the applicant invited the three-member Court of First Instance to hold a hearing in order for a final decision to be issued on Apco’s appeal. It contended that the appeal should be dismissed for lack of evidence.
The hearing took place on 22 January 1999. Apco invited the Court to adjourn the hearing for two months, so that the witnesses could be examined. On 8 April 1999 the Court decided to grant the request. The decision was served on Apco on 29 June 1999.
On 19 December 2000 the First Instance Court dismissed another application of the applicant to dismiss the appeal for failure to provide evidence.
The procedure is still pending.
B. Relevant domestic law
The relevant Articles of the Code of Civil Procedure read as follows:
Article 108
“The procedural acts are performed on the initiative and diligence of the parties, unless the law provides otherwise.”
Article 148
“1. The parties may agree to extend the time-limits fixed by the law or the judge, subject to the consent of the judge.
2. The extension, when it pertains to time-limits for the conduct of evidence proceedings, may be granted only twice and cannot exceed eight moths at a time.”
Article 229
“A copy of the action with the attached act for the fixing of the date of the hearing is served on the respondent with the diligence of the plaintiff.”
Article 230
“1. The provisions of Articles 228 and 229 apply to the fixing of any other date of hearing.
2. Any party is entitled to expedite the proceedings.”
Article 310
“Judgments are notified with the diligence of the parties.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings before the First Instance Court of Salonica. It submits that a simple commercial dispute, which should have been adjudicated according to Article 623 of the Code of Civil Procedure (providing for the prompt settlement of such disputes), and in which the applicant dispose of an executory title since 1995, is dragging out since more than four years and that the perspectives for the conclusion of the proceedings appear remote.
THE LAW
The applicant alleges a violation of Article 6 § 1 of the Convention, which 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 by [a] ... tribunal...”
The Government maintain that neither the applicant nor the respondent company submitted a request to expedite the proceedings before the three-member First Instance Court of Salonica. The Court, ruling according to the rules pertaining to ordinary proceedings (and not to summary proceedings of Article 623 of the Code of Civil Procedure) decided, by an interlocutory decision of 17 April 1997, to hear witnesses. The applicant could have obtained a copy of that decision as of the next day and take the necessary steps to have it finalised. However, the applicant notified the decision to the respondent company only on 1 October 1997. Moreover, it did not invite the judge rapporteur to fix a date for the hearing of the witnesses within the three-month time-limit. It did not either ask for an extension of the time-limits according to the provisions of Article 149 of the Code of Civil Procedure; both the First Instance Court and the judge rapporteur could have extended twice the time-limit for the examination of witnesses. On the contrary, the applicant filed a summons for the hearing on the appeal to take place, although no new evidence was available. The Court deliberated on 22 January and 8 April 1999 and decided to grant the respondent’s company request for an adjournment of two months instead of six months, as it could have done according to Article 149 § 4. In conclusion, the competent judicial authorities acted in a manner compatible with the requirement of Article 6 § 1 of the Convention. On the contrary, the applicant adopted a passive conduct by failing to fix timely the date for the hearing of witnesses and applied for the continuation of the hearing proceedings although the case was not yet ready for decision.
The applicant admits that his application for the issuance of a payment order was submitted nine months after the date on which the amount should have been paid by the respondent company, but claims that that period was consumed in the efforts to seek an extra-judicial settlement of the dispute. The First Instance Court of Salonica, composed of one member, should not have granted the request to stay the execution of the payment order. By adopting the interlocutory decision of 17 April 1997 and deciding that the burden of proof be borne by the respondent, the three-member First Instance Court of Salonica offered the possibility to the respondent to delay the delivery of a final judgment in the case. It was impossible for the applicant to take the initiative of the proceedings and adduce counter-evidence as long as the respondent refused to adduce evidence, notify the witnesses’ names and allow the applicant to inspect the machine. The Court should then have dismissed the respondent’s action for failure to prove the allegations made therein instead of rewarding the stalling tactics of the respondent by adjourning the proceedings for a second time. Thus the three month time‑limit, initially granted to the respondent in April 1997 has been extended for four years, without any signs as to when the final judgment will be delivered.
The Court notes that the proceedings started on 5 July 1995, when the applicant applied to the First Instance Court of Salonica, composed of one member, and are still pending.
The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Erik FriberghAndràs Baka
RegistrarPresident
Full & Egal Universal Law Academy