AS TO THE ADMISSIBILITY OF
Application No. 19634/92
by UNION OF AIR HOSTESSES AND ATTENDANTS,
Heraklis EFSTATHIOU and Fotios KYRIAKOGLOU
against Greece
The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
S. TRECHSEL
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
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
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 20 December 1990
by UNION OF AIR HOSTESSES and ATTENDANTS against Greece and registered
on 13 March 1992 under file No. 19634/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
11 November 1993 and the observations in reply submitted by the
applicants on 25 February 1994 and 10 January 1995;
Having deliberated;
Decides as follows:
THE FACTS
The present application has been introduced by the Union of Air
Hostesses and Attendants (hereinafter "the Union"), a trade union
registered under Greek law, its President Fotios Kyriakoglou and a
member, Heraklis Efstathiou, both Greek nationals. They are represented
before the Commission by Prof. G. Papadimitriou, an attorney-at-law
practising in Athens.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
1. The particular circumstances of the case
On 18 April 1989 the Union announced that its members were to
strike from 22 April until 8 May 1989.
On 24 April 1989, by Decree No Y302/1989 published in the
Official Gazette, the Prime Minister empowered the Minister of
Transport and Communications to "mobilise" (politiki epistratefsi) the
air hostess/attendant branch of employees of Olympic Airways. In the
preamble of this decision, reference was made to the need to avoid
disturbances in air traffic, which could result in jeopardising the
economic and social life of the country, as well as public health and
national interests. Pursuant to the decision of the Prime Minister, a
ministerial decree was issued on 25 April 1989 by the Minister of
Transport and Communications which required the "mobilisation" of the
said branch of employees from that date "until further orders".
On 25 April 1989 the second and third applicants were called, by
personal letters, to present themselves to work and assume their duties
in application of the above-mentioned mobilisation decree. It was
specified that if the applicants failed to comply with that order they
would have been sanctioned according to the relevant rules of domestic
law.
On 15 June 1989 the Union lodged an application for annulment
(aitisi akyroseos) with the Council of State (Symvoulio tis
Epikrateias), claiming that the aforementioned administrative acts were
contrary to the Greek Constitution, Articles 22 and 23 of which
guarantee the right to strike and prohibit any form of compulsory work.
The applicants also invoked Article 4 of the Convention.
On 17 June 1989 the Minister of Transport and Communications, by
a decision published in the Official Gazette, cancelled his previous
decree and lifted the mobilisation.
The hearing before the Council of State took place on 7 May 1991.
On 28 June 1991 the Council of State found that, given the fact
that the proclaimed strike would have lasted until 8 May 1989, the
effect of the challenged decisions expired ipso facto on 9 May 1989.
The Court found that on 15 June 1989, when the application for
annulment was lodged, the acts were already invalid. The Court stressed
that the meaning of the phrase "until further orders", which figured
in the ministerial decree, was that the competent minister could lift
the mobilisation before the strike ended and not that these
administrative acts remained in force after the end of the strike.
Given the fact that the relevant law only permits challenging of acts
still in force, the Council of State declared the application
inadmissible (judgment No 2099/1991).
2. Relevant domestic law and practice
a. Articles 22 and 23 of the Greek Constitution guarantee the right
to strike and prohibit any form of compulsory work. In particular,
Article 22 para. 3 of the Constitution provides as follows:
"Any form of compulsory work is prohibited. Special laws
shall determine the requisition of personal services in
case of war or mobilisation or to meet the defence needs of
the country or urgent social emergencies resulting from
disasters or liable to endanger public health, as well as
the offer of personal work to local government agencies to
satisfy local needs."
b. It ensues from Article 45 of Presidential Decree 18/1989 that an
application for annulment can only be lodged with the Council of State
against acts which are still in force.
c. Article 52 para. 2 of the Presidential Decree 18/1989 reads as
follows:
"A committee, established ad hoc by the Chairman of the
Council of State and composed of the Chairman or the member
of the Council who replaces him in accordance with the
applicable rules, the rapporteur of the case and another
member of the Council, may, at the request of the person
who filed the action for annulment, decide in chambers to
suspend the execution of the impugned act. Reasons must be
provided."
COMPLAINTS
1. The applicants allege that their mobilisation amounted to
compulsory labour in breach of Article 4 of the Convention.
2. Furthermore the applicants submit that the Council of State
avoided dealing with the genuine judicial impact of the administrative
acts in question, although they had come into force and had produced
legal effects on several levels. The applicants complained, therefore,
that the Council of State's judgment led to a denial of justice
contrary to Articles 6 para. 1 and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 December 1991 and registered
on 13 March 1992.
On 28 June 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on admissibility and merits.
The Government submitted their observations on 11 November 1993,
after one extension in the time-limit fixed for this purpose, and the
applicants' observations in reply were submitted on 25 February 1994,
after one extension in the time-limit fixed for this purpose.
On 7 December 1994 the Commission decided to invite the
applicants to submit further written observations on the admissibility
and merits of the application.
The applicants submitted their further observations on 10 January
1995.
THE LAW
1. The applicants allege that their mobilisation amounted to
compulsory labour in breach of Article 4 (Art. 4) of the Convention.
2. The applicants also submit that the Council of State avoided
dealing with the genuine judicial impact of the administrative acts in
question, although they had come into force and had produced legal
effects on several levels. The applicants complain, therefore, that the
Council of State's judgment led to a denial of justice contrary to
Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention.
a. The Government first submit that the Union cannot claim to be a
victim of a violation of Article 4 (Art. 4) of the Convention.
The applicants disagree.
Article 25 (Art. 25) of the Convention provides inter alia
that :
"The Commission may receive petitions (...) from any person, non-
governmental organisation or group of individuals claiming to be
a victim of a violation (...) of one of the rights set forth in
this Convention (...)."
The Commission considers that the applicant Union meets the first
of these conditions, in that in Greek domestic law it is an association
of persons with common interests constituting a professional union. As
such, this union falls into one of the categories of applicants
mentioned in Article 25 (Art. 25) of the Convention, namely that of a
non-governmental organisation (see N° 9900/82, dec. 4.5.83, D.R. 32,
p. 261).
As regards the second condition, the Union considers itself to
be a victim, within the meaning of Article 25 (Art. 25), in that it was
compelled to compulsory labour.
In the Commission's view an applicant cannot claim to be the
victim of a breach of one of the rights or freedoms protected by the
Convention unless there is a sufficiently direct connection between the
applicant and the injury he maintains he suffered as a result of the
alleged breach (N° 10733/84, dec. 11.3.85, D.R. 41, p. 211).
It is clear, however, in the present case, that it is not the
applicant Union, as such, which is the victim of the alleged
infringment of the right guaranteed by Article 4 (Art. 4) of the
Convention. It is not the association itself, in fact, which could be
compelled to compulsory labour, but each of its members as individuals.
It follows that, as regards the alleged violation of Article 4
(Art. 4), the applicant Union cannot claim to be the victim of a
violation of the Convention.
This part of the application is therefore incompatible ratione
personae with the provisions of the Convention and must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
As regards the second and third applicants the Commission notes
that, given the fact that they had been personally invited to assume
their duties during the mobilisation, they can claim to be victims of
a violation of Article 4 (Art. 4) of the Convention.
b. Furthermore, the Government submit, in respect of Article 26
(Art. 26) of the Convention, that the applicants have not properly
exhausted domestic remedies. In this connection, they explain that by
appealing to the Council of State after the end of their strike, the
applicants made it impossible for the Council of State to decide on
their application.
The Government further submit that the applicants did not request
the Council of State to suspend the execution of the decision requiring
the mobilisation.
The applicants reply that they have lodged their application
while the attacked administrative acts were in force. They stress that
they could not possibly know when the mobilisation ended, since this
was a matter decided by the administration.
The applicants further submit that a request for the suspension
of the execution of an administrative act cannot, as a matter of
principle, be considered to be a remedy within the meaning of Article
26 (Art. 26) of the Convention.
The Commission recalls that under Article 26 (Art. 26) of the
Convention the Commission may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
The Commission further recalls that according to its constant
case-law there is no exhaustion of domestic remedies where a domestic
appeal is not admitted because of a procedural mistake (N° 10107/82,
dec. 12.7.84, D.R. 38, p. 90).
In the present case, the Commission notes that the applicants
failed on several occasions to seek the timely protection of the
judicial authorities: the applicants did not apply to the Council of
State for a suspension of the execution of the decision requiring the
mobilisation. Moreover, in its judgment of 28 June 1991, the Council
of State declared the applicants' application inadmissible because it
had been filed too late. This decision has been taken according to the
relevant domestic law and the Commission notes that the applicants
failed to establish why they did not file their application before the
end of their strike.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and that their
complaints under Articles 4 (Art. 4) (as regards the second and third
applicants), 6 para. 1 and 13 (Art. 6-1, 13) must be rejected under
Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy