Hudoc reference REF00000766
Document type Judgment (Merits and just satisfaction)
Title CASE OF PAFITIS AND OTHERS v. GREECE
Application number 00020323/92
Date 26/02/1998
Respondent Greece
Conclusion Violation of Art. 6-1 ; No violation of Art. 6-1 ; Non-pecuniary damage - financial award ; Costs and expenses award - domestic proceedings
Published in Reports 1998-I
Keywords CIVIL PROCEEDINGS ; REASONABLE TIME
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EUROPEAN COURT OF HUMAN RIGHTS
CASE OF PAFITIS AND OTHERS v. GREECE
(163/1996/782/983)
JUDGMENT
STRASBOURG
26 February 1998
The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Stra?e 449, D-50939 Koln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.
List of Agents
Belgium: Etablissements Emile Bruylant (rue de la Regence 67,B-1000 Bruxelles)
Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)
The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage)
SUMMARY1
Judgment delivered by a Chamber
Greece – length of proceedings in the Supreme Administrative Court and the civil courts
I. Article 6 § 1 of the Convention
A. Applicability
Purpose of proceedings to settle a dispute (contestation) over civil rights and obligations: applicants, as shareholders of a bank, could arguably claim right under Greek and European Community legislation to vote on increase in its capital and thus participate in decisions concerning value of their shares.
Conclusion: Article 6 § 1 applicable (unanimously).
B. Compliance
1. General considerations concerning all the sets of proceedings complained of
Dispute raised serious questions of Greek and European Community law – outcome would have important repercussions not only for parties to various sets of proceedings but also for country’s economy in general – complexity alone not sufficient to justify such lengthy delays as occurred in case.
Apart from complexity of case – and conduct of parties and judicial authorities – three additional factors contributed to prolongation of proceedings, namely:
– proceedings before Court of Justice of European Communities: Court could not take these into consideration; to do so would adversely affect system instituted by Article 177 of EEC Treaty and work against aim pursued in substance in that Article;
– strike by members of Athens Bar: in calling on its members to withdraw their services, Bar was taking action designed to protect their professional interests, not exercising one of functions of a public authority; delays caused by strike could not therefore be attributed to State;
– close connection between the different sets of proceedings: in circumstances of case fact that proceedings in certain actions were stayed and relinquishment of jurisdiction by Fourth Division of Supreme Administrative Court in favour of plenary court were compatible with fair balance to be struck between various aspects of principle of the proper administration of justice.
Delays due to above three factors therefore beyond jurisdiction of domestic legal system.
2. Considerations specific to each set of proceedings
(a) Proceedings for judicial review in Supreme Administrative Court, brought by some of the applicants
Start: application to court.
End: judgment.
Total: five years, four months and sixteen days.
Seven adjournments ordered by Supreme Administrative Court of its own motion.
Conclusion: violation (unanimously).
(b) Proceedings concerning action no. 10429/1986
(i) In so far as action brought by some of the applicants
Start: application to Athens District Court.
Still pending in Court of Cassation.
Proceedings stayed for about five years pending outcome of judicial review proceedings.
Proceedings detrimentally affected by delays noted in Supreme Administrative Court.
Conclusion: violation (unanimously).
(ii) In so far as action brought by certain other applicants
Application lodged with court on 12 May 1992.
Most of delays since then due to proceedings before Court of Justice of European Communities and strike by members of the Athens Bar.
Conclusion: no violation (unanimously).
(c) Proceedings concerning action no. 5220/1989
Start: application to Athens District Court.
Still pending in Court of Cassation.
Only a delay of five months imputable to District Court.
Conclusion: no violation (eight votes to one).
(d) Proceedings concerning action no. 11301/1990
Start: application to Athens District Court.
Still pending in Court of Cassation.
Only a delay of five months imputable to District Court.
Conclusion: no violation (eight votes to one).
(e) Proceedings concerning action no. 6137/1991
Start: application to Athens District Court.
Still pending in Court of Cassation.
Only a delay of seven months imputable to District Court.
Conclusion: no violation (eight votes to one).
(f) Proceedings concerning action no. 5055/1993
Start: application to Athens District Court.
Still pending in Court of Cassation.
District Court adjourned case pending outcome of reference to Court of Justice of European Communities.
Conclusion: no violation (unanimously).
(g) Proceedings concerning action no. 23/1994
Start: application to Athens District Court.
Still pending in Court of Cassation.
Until date when District Court gave judgment, proceedings had lasted one year and twenty-eight days; such a period cannot be regarded as excessive.
Conclusion: no violation (unanimously).
(h) Proceedings concerning action no. 45/1994
Start: application to Athens District Court.
Still pending in Court of Cassation.
No delay imputable to District Court.
Conclusion: no violation (unanimously).
(i) Proceedings concerning action no. 7968/1994
Start: application to Athens District Court.
Still pending in Court of Cassation.
Hearing put back on account of related subject matter of another case – District Court decided to stay proceedings pending judgment of Court of Justice of European Communities and its own judgments in the previous cases.
Conclusion: no violation (unanimously).
II. ARTICLE 50 OF THE CONVENTION
A. Damage
Overall sum awarded for non-pecuniary damage.
B. Costs and expenses
Numerous adjournments caused applicants to incur costs which were not inconsiderable.
Overall sum awarded.
Conclusion: respondent State to pay six of the applicants specified sums (unanimously).
court’s CASE-law referred to
12.10.1992, Boddaert v. Belgium; 31.10.1995, Papamichalopoulos and Others v. Greece (Article 50)
In the case of Pafitis and Others v. Greece1,
The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A2, as a Chamber composed of the following judges:
Mr Thor Vilhjalmsson, President,
Mr F. Golcuklu,
Mr B. Walsh,
Mr N. Valticos,
Mr A.N. Loizou,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr P. Jambrek,
Mr P. Van Dijk,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 25 October 1997 and 30 January 1998,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the Greek Government (“the Government”) on 9 December 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 20323/92) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by one hundred and thirty-two natural or legal persons of that State on 30 June 1992. Only thirty-five of those have the status of applicants before the Court (see paragraph 83 below). Having initially been designated by their initials during the proceedings before the Commission, they subsequently consented to the disclosure of their identities. The names of the applicants before the Court are as follows:
Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, Mrs A. Gogora, Mr M. Iliadis, the Investment and Shipping Enterprises Establishment company, Mr P. Kallifatidis, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr P. Kouniniotis, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, Mr G. Papadimitroulas, the Parthenon company, Mr G. Poulis, the Sterea company, Mr T. Therapiotis, Mr A. Toskos, Mr P. Toskos, Mr T. Triantafyllidis, Mrs E. Tsekoura, Mr J. Tsekouras, Mr K. Vayiotis, Mrs P. Vossinaki, Mr N. Vossinakis, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos.
The Government’s application referred to Articles 44 and 48 of the Convention. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio Mr N. Valticos, the elected judge of Greek nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 20 January 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Golcuklu, Mr B. Walsh, Mr A.N. Loizou, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr P. Jambrek and Mr P. van Dijk (Article 43 in fine of the Convention and Rule 21 § 5).
As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence on 25 February 1997, the Registrar received the memorials of the applicants and the Government on 11 and 20 June 1997 respectively. On 17 September 1997 the applicants filed an additional memorial on the application of Article 50 of the Convention.
4. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 October 1997. The Court had held a preliminary meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr V. Kondolaimos, Adviser,
State Legal Council, Delegate of the Agent,
Mrs V. Pelekou, Legal Assistant,
State Legal Council, Counsel,
Mr M. Bakhas, Technical Adviser,
Ministry of Finance, Adviser;
(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicants
Mr P.H. Dukaris, of the Athens Bar,
Mrs S. Spiliotopoulos-Koukouli, of the Athens Bar,
Mr E.P. Spiliotopoulos, Professor,
University of Athens, Counsel.
The Court heard addresses, and replies to its questions, from Mr Rozakis, Mr Dukaris, Mrs Spiliotopoulos-Koukouli, Mr Spiliotopoulos and Mr Kondolaimos.
On the day of the hearing the applicants produced various documents, on their own initiative. The President gave the Government leave to reply, which they did on 24 November 1997.
5. Subsequently Mr Thor Vilhjalmsson, substitute judge, replaced Mr Ryssdal, who was unable to take part in the further consideration of the case (Rules 22 § 1 and 24 § 1).
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
6. The Bank of Central Greece (“the BCG”) is a company incorporated under Greek law, whose head office is in Athens. On 13 September 1984 its capital amounted to 670,000,000 drachmas (GRD), divided into 670,000 shares of a nominal value of GRD 1,000 each.
7. On 13 September 1984 the Governor of the Bank of Greece, exercising the powers conferred on him by Presidential Decree no. 861/1975, ratified by Law no. 236/1975, in conjunction with Law no. 1266/1982, placed the BCG under the control of a temporary administrator (Prosorinos Epitropos). The Governor took this decision in the light of the following circumstances: (1) the result of an inquiry conducted by the competent authorities of the Bank of Greece, who had concluded that a series of illegal transactions had been carried out by the BCG’s directors; (2) the fact that the BCG’s directors had attempted to obstruct the inquiry; and (3) “the urgency of the situation, the public interest and that of the BCG, its shareholders and the third parties concerned”. Pursuant to paragraph 2 of this decision of the Governor of the Bank of Greece (decision no. 397/13.9.84), from the time when decision no. 397/84 was published in the Official Gazette (Efimerida Kyvernisseos), the BCG’s organs lost all their previous powers, which were transferred, together with responsibility for the bank’s administration, to the temporary administrator. The latter was ordered to submit to the Governor of the Bank of Greece, within two months, a detailed report on the BCG’s finances, accounts and management.
8. On 13 November 1984 the temporary administrator (Mr I. Oikonomopoulos) submitted his report and tendered his resignation, with effect from 18 December 1984. On that date the Governor of the Bank of Greece appointed a second temporary administrator (Mr I. Papakonstantinos), who submitted his report on 28 January 1985.
9. On 28 July 1986 the Governor of the Bank of Greece invited the BCG to increase its capital within ninety days to GRD 1,500,000,000, by issuing new fully paid-up shares. On 29 July 1986 the temporary administrator, exercising powers normally conferred at the general meeting of shareholders, decided, by decision no. 70/86, to increase the BCG’s capital to GRD 1,700,000,000, at the same time amending the relevant provision (Article 6) of its articles of association. By a notice published in a daily newspaper, the BCG invited its shareholders to exercise by 27 August 1986 the option to purchase the new shares which they were guaranteed under the articles of association and to pay one quarter of the value of these shares within two months (first increase in capital).
10. On 24 September 1986 the temporary administrator adopted decision no. 71/86, modifying decision no. 70/86. The only notable change was that those who were interested in purchasing the new shares were invited to pay for them in full by 27 October 1986. Considering that this new decision
introduced only “changes of form”, the temporary administrator expressly provided therein that it was to apply retrospectively from the date of publication of decision no. 70/86. As a result, in accordance with the decision’s express wording, the time-limit for exercising the shareholders’ option was still 27 August 1986. The applicants did not exercise that option.
11. On 2 October 1986 the Governor of the Bank of Greece approved decision no. 71/86 and on 7 October 1986 the Prefect of Athens approved the necessary amendment to the BCG’s articles of association. On 31 October 1986 the temporary administrator decided to allocate the new shares to: (a) G. Koskotas, (b) “Edrassi – X. Psallidas Ate”, (c) G. Galanopoulos, (d) M. Maissis and (e) D. Mitropoulos. However, Mr G. Koskotas became the BCG’s majority shareholder (with 1,025,565 of the 1,030,000 shares).
12. On 1 November 1986 the Governor of the Bank of Greece appointed a new temporary administrator (Mr S. Kalamitsis), on the ground that the previous one had contravened the law in his decision as to how the new shares were to be allocated.
13. On 5 November 1986 the new temporary administrator rescinded the decision taken by his predecessor on 31 October 1986 and decided to allocate the shares previously transferred to Mr G. Koskotas to the Agricultural Bank of Greece, a public-sector company, which accordingly became the BCG’s majority shareholder. However, existing shareholders were not invited to exercise their option.
14. On 13 November 1986 the Governor of the Bank of Greece appointed an administrator to run the BCG, stipulating in the appointment decision that the administrator was to hand over management to an elected board of directors as soon as possible. On 15 February 1987 a new board of directors was elected by the general meeting of BCG shareholders.
15. On 16 February 1987 Parliament enacted Law no. 1682/1987, pursuant to which a number of administrative decisions concerning the BCG, including all those mentioned above, acquired the force of law. Law no. 1682/1987 also amended the articles of association of the Agricultural Bank of Greece, which had been laid down by a previous law, so as to enable it to take part in the increases in the share capital of other banks.
16. On 14 June 1987 the general meeting of BCG shareholders decided to increase the capital to GRD 3,300,000,000 (second increase).
17. On 1 June 1989 Parliament enacted Law no. 1858/1989, which applied retrospectively and established an authoritative interpretation of Presidential Decree no. 861/1975. According to this interpretation, temporary administrators had the power to increase the capital of the banks they had been appointed to run.
18. On 11 June 1989 the BCG’s capital was increased by a further GRD 125,000,000 (third increase).
19. On 30 September 1990 the general meeting of BCG shareholders decided to apply to have its shares listed on the Athens stock exchange, to increase its capital by GRD 1,282,250,000, to offer the new shares for sale on the stock market and to amend Articles 6 and 7 of the BCG’s articles of association accordingly (fourth increase).
20. On 9 November 1990 the Monetary and Financial Affairs Committee (Epitropi nomismaton kai pistotikon thematon) of the Bank of Greece approved the above-mentioned amendment of the BCG’s articles of association. On 11 December 1990 the Capital Market Committee (Epitropi kefaleagoras) authorised the BCG to allocate the new shares by offering them for sale on the stock market.
21. On 22 June and 22 October 1993 the BCG’s capital was increased by GRD 256,250,000 (fifth increase).
22. On 29 July and 17 August 1994 the BCG’s capital was increased by GRD 8,055,000,000 (sixth increase).
B. Judicial proceedings to challenge the increases in capital
1. The proceedings in the Supreme Administrative Court
23. On 1 December 1986 some of the applicants challenged in the Supreme Administrative Court decisions nos. 854/2.10.86 and 21543/7.10.86 by which the Governor of the Bank of Greece and the Prefect of Athens had approved the first increase in the BCG’s capital. In their application for judicial review they alleged that the temporary administrator was not empowered under Greek law to order an increase in capital, which should have been done by a resolution of the general meeting of shareholders.
24. On 10 December 1986 the President of the Fourth Division of the Supreme Administrative Court decided to hear the case on 2 June 1987.
25. On 2 June 1987 the Fourth Division of the Supreme Administrative Court decided of its own motion to adjourn until 27 October 1987 consideration of the application for judicial review lodged on 1 December 1986. On 27 October 1987 the Supreme Administrative Court decided of its own motion to adjourn the case until 2 February 1988 and later until 19 April 1988. According to the Government, the reason for all these adjournments was the importance and complexity of the legal questions which the reporting judge had to consider.
26. On 19 April 1988 the Fourth Division of the Supreme Administrative Court heard the application for judicial review. On 14 June 1988 it held, in decision no. 2668/88, (a) that the temporary administrator had not been empowered under Greek law to order the increase in capital of 24 September 1986; (b) that Law no. 1682/1987 could not be taken into account because it had been enacted after the application for judicial review had been made, contrary to the constitutional principle of the separation of powers; (c) that the two applicants could not challenge the administrative decisions in question because before 13 September 1984 they had held less than 5% of the capital; and (d) that because of its importance the case should be referred to the plenary court.
27. On 12 September 1988 the President of the Supreme Administrative Court decided that the application for judicial review would be heard on 2 December 1988. On that date the Supreme Administrative Court decided of its own motion to adjourn the case until 12 May 1989 and later until 6 October 1989. On the latter date the Supreme Administrative Court decided of its own motion to adjourn the case until 9 February 1990 and later until 27 April 1990. According to the Government, all these adjournments were prompted by the same considerations as those referred to above.
28. On 27 April 1990 the Supreme Administrative Court decided of its own motion to adjourn consideration of the application for judicial review until 26 October 1990. According to the applicants, this adjournment was accepted by all the parties. The Government maintained that it was requested by the applicants and supplied a certificate to that effect from the registry of the Supreme Administrative Court.
29. On 26 October 1990 the Supreme Administrative Court again decided to adjourn the case, this time until 8 March 1991. According to a certificate from the registry of the Supreme Administrative Court, the court decided of its own motion to adjourn the hearing. According to the Government, record no. 41/1990 of the plenary court proves that the applicants requested the adjournment concerned pending the judgment of the Court of Justice of the European Communities in a similar case and that the respondents opposed that request. The reporting judge considered that the case should be adjourned.
30. On 8 March 1991 the Supreme Administrative Court decided of its own motion to adjourn consideration of the application for judicial review until 17 May 1991. On that date it once again adjourned the case, until 11 October 1991. The applicants maintained that all parties had been present at the hearing on 17 May 1991 and that they had requested that the case be tried. However, as the respondents objected, the Supreme Administrative Court had adjourned the case of its own motion. According to the
Government, the case could not be heard on 17 May 1991 because of a strike by lawyers, as attested by a certificate issued by the Athens Bar Association. They also submitted in that connection a certificate from the registry of the Supreme Administrative Court, dated 31 October 1995.
31. On 11 October 1991 the application for judicial review came before the Supreme Administrative Court. However, the National Union of Bank Employees (OTOE), which had intervened in the proceedings, requested an adjournment. The Supreme Administrative Court allowed this request and adjourned the case until 22 November 1991. According to the applicants, the request was supported by the respondents, whereas they themselves had insisted that the hearing should take place. The State authorities had themselves requested this adjournment, as was proved by, inter alia, a written request submitted on 26 September 1991 by the Minister for Economic Affairs, who had intervened in the proceedings concerning the application to the Supreme Administrative Court for judicial review.
32. On 22 November 1991 the application lodged on 1 December 1986 was finally considered. On 17 April 1992, in judgment no. 1544/1992, the plenary of the Supreme Administrative Court dismissed the application. It observed that, pursuant to Law no. 2190/1920, a decision taken by the general meeting of shareholders of a company set up in accordance with that Law could be challenged only by shareholders who held at least 5% of the capital, had been present at the meeting when the decision was taken and had opposed it. Parliament had had good reasons to restrict the right of access to the courts in such a way. The right to challenge decisions of the general meeting should be vested only in shareholders who were closely associated with the company’s activities, in which small shareholders were usually not interested. In addition, the company’s competitors could very easily acquire a small number of shares and attempt to harm its interests. The same restrictions applied to the right of access to a court for the purpose of challenging administrative decisions approving those of the general meeting of shareholders. Shareholders who held less than 5% of the capital could challenge an administrative decision of this type only if they could prove that it affected them personally. An increase in the company’s capital could not in itself harm the interests of a shareholder who held less than 5% of the capital. Moreover, the same rules were applicable where the decision to increase the capital had been taken by a temporary administrator. In the instant case, on 29 July 1986 the applicants had held 3.35% of the BCG’s capital (one having 0.37% and the other 2.98%) and would therefore not have been able to challenge the increase in capital if it had been decided upon by a resolution of the general meeting of shareholders. The applicants could not rely on the fact that they now held a lower proportion of the shares in order to establish that their personal interests had been harmed by the decision to increase the capital. Nor had they pleaded any other fact which could warrant such a conclusion. Accordingly, the Supreme Administrative Court decided by a majority to dismiss the application for judicial review, on the ground that the applicants did not have locus standi.
2. The proceedings in the civil courts
(a) The judicial proceedings concerning actions nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991 and 5055/1993
33. On 22 December 1986 some of the applicants brought action no. 10429/1986 against the BCG and others in the Athens District Court, seeking a declaration (a) that the first increase in capital was null and void on the ground that the second temporary administrator (Mr I. Papakonstantinos) had not been empowered under Greek law to take such a decision, which was the prerogative of the general meeting of shareholders, and (b) that the allocation of 1,030,000 new shares to the defendant shareholders by the third temporary administrator (Mr S. Kalamitsis) had been unlawful and was null and void, and that in law it had not conferred on any of these persons the status of shareholder, a right to attend general meetings of BCG’s shareholders or any other right vested in its shareholders. A hearing was listed for 4 February 1987.
34. However, on 14 January 1987 two of the applicants withdrew from action no. 10429/1986. In their notice of discontinuation (no. 1025/1987), they declared to the court that they expressly, unreservedly and irrevocably recognised as absolutely legal, valid and unchallengeable all the transactions carried out by the two temporary administrators concerned (see paragraph 33 above).
35. On 4 February 1987 the Athens District Court decided to adjourn consideration of action no. 10429/1986 until 18 February 1987. According to the applicants, this adjournment was ordered at the defendants’ request.
36. On 18 February 1987 the Athens District Court tried action no. 10429/1986. In its decision no. 3427/87 of 29 April 1987, the court decided to stay the proceedings pending delivery of the Supreme Administrative Court’s judgment on the related application for judicial review lodged on 1 December 1986 (see paragraph 23 above). According to the applicants, the court took this decision at the defendants’ request. On the other hand, the Government referred to the text of the decision, which stated that it was necessary to adjourn consideration of action no. 10429/1986 because its outcome depended on the validity of the appointment of the third temporary administrator (Mr S. Kalamitsis) and the legality of the decision taken by the previous temporary administrator (Mr I. Papakonstantinos) on the increase in capital, these being matters in issue in another case then pending in the Supreme Administrative Court (Article 249 of the Code of Civil Procedure).
37. On 13 June 1989 some of the applicants brought action no. 5220/1989 against the BCG in the Athens District Court, seeking a declaration that the second increase in capital had been in breach of Greek law and was null and void. They argued that, because the first increase in capital was not legally valid, the general meeting of shareholders which had passed the resolution authorising the second increase had not been duly and properly constituted. A hearing was listed for 11 October 1989.
38. On 11 October 1989 the Athens District Court decided to adjourn consideration of action no. 5220/1989 until 31 January 1990. According to the applicants, this adjournment was ordered at the defendant’s request.
39. At the hearing on 31 January 1990 the case was not called because it had not been placed on the court’s list, as certified by its registrar. According to the Government, this delay was imputable to the applicants, who had not taken the necessary steps to have their action placed on the court’s list.
40. On 23 November 1990 some of the applicants brought action no. 11301/1990 against the BCG in the Athens District Court, seeking a declaration that the fourth increase in capital (resolution of the general meeting of shareholders on 30 September 1990 – see paragraph 19 above) had been in breach of Greek and European Community law and was null and void. Again it was contended that the first increase and the allocation of the 1,030,000 new shares to new shareholders – ordered by the then temporary administrator – had been unlawful and were null and void. A hearing was set down for 5 June 1991.
41. On 5 June 1991 the Athens District Court’s hearing on action no. 11301/1990 was adjourned because of a lawyers’ strike on that day.
42. On 7 June 1991 some of the applicants brought action no. 6137/1991 against the BCG in the Athens District Court, seeking a declaration that the third increase in capital (resolution of the general meeting of shareholders on 11 June 1989) had been in breach of Greek and European Community law and was null and void. They put forward the same arguments as had been used in the previous civil cases. A hearing was set down for 2 October 1991.
43. On 23 July 1991 the plaintiffs in actions nos. 10429/1986 (concerning the first increase in capital), 5220/1989 (concerning the second increase) and 11301/1990 (concerning the fourth increase), including some of the applicants, asked the Athens District Court to fix a new hearing date for these cases. The court decided to hear the cases on 18 December 1991.
44. On 2 October 1991 the Athens District Court decided to adjourn consideration of action no. 6137/1991 (concerning the third increase in capital) until 18 December 1991.
45. On 18 December 1991 the Athens District Court decided to adjourn consideration of actions nos. 10429/1986, 5220/1989, 11301/1990 and 6137/1991 until 1 April 1992 and on the latter date it ordered a further adjournment until 27 May 1992. According to the Government, these adjournments were necessary in view of the fact that the Supreme Administrative Court had not yet given judgment on the application for judicial review, a precondition that had been laid down in the decision (no. 3427/87) to adjourn consideration of the first action (no. 10429/1986).
46. On 12 May 1992 some of the applicants intervened in the proceedings concerning action no. 10429/1986, supporting the plaintiffs. A hearing was set down for 27 May 1992.
47. On 27 May 1992, although the Supreme Administrative Court’s judgment no. 1544/1992 had been delivered on 17 April 1992 (see paragraph 32 above), the hearing arranged for trial of all the actions was adjourned because of another strike by members of the Athens Bar.
48. On 29 July 1992 the plaintiffs, including some of the applicants, asked the Athens District Court to fix a new hearing date for actions nos. 10429/1986, 5220/1989, 11301/1990 and 6137/1991. The court decided to consider these actions on 11 November 1992.
49. On that date, however, the hearing in respect of the four pending actions was adjourned on account of the strike by Athens lawyers. On 16 December 1992 the plaintiffs asked for a new hearing date to be fixed and the court decided to hear these cases on 17 January1993. The applicants asserted in their memorial to the Court that their object in taking out all the above-mentioned summonses (klissis) had been to expedite the proceedings in the civil courts (Article 230 of the Code of Civil Procedure).
50. On 27 January 1993 the Court again decided to adjourn consideration of actions nos. 10429/1986, 5220/1989, 11301/1990 and 6137/1991 until 12 May 1993.
51. In the meantime, on 5 May 1993, some of the applicants brought action no. 5055/1993 in the Athens District Court, in support of the actions brought on 22 December 1986 (no. 10429/1986) and 12 June 1989 (no. 5220/1989). In their third-party action they sought a declaration that the decisions concerning the first and second increases in capital had been taken in breach of Articles 25 § 1 and 29 of the Second Directive of the Council of the European Communities (Directive 77/91/EEC). A hearing was set down for 12 May 1993.
52. On that date the Athens District Court tried cases nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991 and 5055/1993.
53. On 3 August 1993 the Athens District Court gave its judgment no. 5785/1993 on the above-mentioned cases. Considering that some of the applicants had not given the lawyers who had appeared in court to represent them valid authority to act, it gave judgment against them. It also decided not to entertain the applicants’ arguments concerning the impossibility in practice of exercising their option, since they had not been raised in time. It likewise dismissed the four actions in so far as they concerned the allegation that the decisions concerning the increases in capital had not been taken in accordance with Greek law. However, the court referred to the Court of Justice of the European Communities, for a preliminary ruling, the questions of Community law raised by the cases. It reserved its decision on the defendants’ objection concerning the plaintiffs’ abuse of rights (Article 281 of the Greek Civil Code) until it had learned how the Court of Justice of the European Communities had applied European law. On 22 February 1996 the Luxembourg Court gave notice that it would give judgment on 12 March 1996.
(b) The judicial proceedings concerning actions nos. 23/1994, 45/1994 and 7968/1994
54. On 3 January 1994 some of the applicants brought action no. 23/1994 against the BCG and others, asking the Athens District Court to refer another question to the Court of Justice of the European Communities for a preliminary ruling, namely whether the objection based on Article 281 of the Greek Civil Code, concerning abuse of rights, could render inapplicable the provisions of Community law, those being, in the instant case, Articles 25 and 29 of Directive 77/91/EEC on companies. The hearing to consider their action was set down for 16 February 1994.
55. On 4 January 1994 some of the applicants brought action no. 45/1994 in the Athens District Court, seeking a declaration that the fifth increase in capital (resolutions of 22 June and 22 October 1993) had been in breach of Greek and Community law and was null and void. The arguments submitted were the same as in the previous actions. The hearing was likewise set down for 16 February 1994.
56. On 9 February 1994 the Ministry of Finance intervened in the proceedings concerning action no. 45/1994. A hearing was set down for 25 May 1994.
57. Although the Athens Bar had called on its members to strike, the applicants’ lawyers informed the defendants on 15 February 1994 that the Bar had authorised them to appear in the Athens District Court on 16 February 1994 to request an adjournment of cases nos. 23/1994 and 45/1994. On 16 February 1994 the court did adjourn these cases until
25 May 1994. According to the applicants, that decision was taken at the defendants’ insistent request.
58. On 22 February 1994 the applicants asked the court to consider actions nos. 23/1994 and 45/1994 on 16 March 1994. Their request was granted.
59. Although the Athens Bar had called on its members to strike, the applicants’ lawyers informed the defendants on 11 March 1994 that the Bar had authorised them to appear in the Athens District Court on 16 March 1994. On 15 March 1994, however, the Athens Bar decided to rescind that authorisation. According to the applicants, this decision was taken at the request of the Governor of the Bank of Greece, who had intervened in the proceedings. The hearing listed to take place on 16 March 1994 in cases nos. 23/1994 and 45/1994 was, in the event, adjourned.
60. On 3 March 1994 the union of BCG employees intervened in the proceedings concerning action no. 45/1994. A hearing was set down for 25 May 1994.
61. On 25 May 1994 the hearing concerning action no. 23/1994 was cancelled because the plaintiffs had not taken the necessary steps to have the case placed on the court’s list. According to the applicants, their lawyers were not present at the hearing on 25 May 1994 because the Athens Bar had again called on its members to strike and their opponents had used improper manoeuvres to obtain the cancellation of the hearing concerning action no. 23/1994 and the adjournment of case no. 45/1994.
On 25 May 1994 case no. 45/1994 was adjourned until 1 February 1995.
62. On 12 July 1994 the applicants asked the court to fix a new hearing date in order to expedite the proceedings relating to actions nos. 23/1994 and 45/1994. The court set down a hearing for 18 July 1994. However, the applicants did not appear on that day and consideration of these actions was adjourned.
63. On 24 August 1994 the applicants asked for a new hearing date to be fixed for their third-party action no. 23/1994 and the Athens District Court decided to resume consideration of the case on 2 November 1994.
64. On 5 September 1994 the applicants asked for an earlier date to be fixed for the hearing in their action (no. 45/1994) concerning the fifth increase in the BCG’s capital. The court decided to hear the case on 2 November 1994.
65. In the meantime, on 26 September 1994, some of the applicants brought action no. 7968/1994 against the BCG and others in the Athens District Court seeking a declaration that the sixth increase in capital had been in breach of Greek and Community law and was null and void. The
arguments submitted were the same as in the previous actions. A hearing was likewise set down for 2 November 1994.
66. On 2 November 1994, at the defendants’ request, the court decided to adjourn the hearing concerning action no. 45/1994 until 1 February 1995; it also adjourned to the same date consideration of action no. 7968/1994. Still on 2 November 1994 it tried case no. 23/1994. Its judgment was given on 31 January 1995. The court held that it could not rule on that part of the action which concerned the claim submitted by Mr G. Papadimitroulas, on the ground that he had not been one of the applicants who had asked the court, on 7 November 1994, to resume consideration of the case. The court decided to dismiss the claims of the other applicants concerned, holding that the action raised no problem regarding the interpretation of Community law and that the Greek courts alone had jurisdiction to rule on the defendants’ objection concerning the plaintiffs’ abuse of rights (Article 281 of the Civil Code).
67. On 7 November 1994 the Athens District Court, at the applicants’ request, decided to resume consideration of actions nos. 45/1994 and 7968/1994 on 14 December 1994. According to the Government, it was not legal to bring the trial in the present case forward in this way.
68. On 30 November and 12 December 1994 the applicants’ lawyer complained to the Athens Bar of the improper manoeuvres allegedly used by the defendants’ lawyers on 25 May 1994.
69. On 7 December 1994 the applicants again asked the court to try action no. 7968/1994 on 14 December 1994.
70. On 14 December 1994 the Athens District Court decided to adjourn consideration of the pending actions nos. 45/1994 and 7968/1994 until 1 February 1995.
71. On 1 February 1995 the Athens District Court heard these two cases. In a decision (no. 5883/1995) of 29 May 1995 it ordered a stay of the proceedings concerning actions nos. 45/1994 and 7968/1994 pending the judgment of the Court of Justice of the European Communities on the questions for a preliminary ruling submitted to it on 3 August 1993 and the court’s own judgment on the previous actions nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991 and 5055/1993. The court was obliged to order this adjournment because the last two actions, nos. 45/1994 and 7968/1994, challenging the fifth and sixth increases in the BCG’s capital, had the same factual and legal basis as the first five of the above-mentioned actions. It was therefore necessary to adjourn the cases until the conclusion of the proceedings on the first five actions, which raised exactly the same issues.
(c) The judgment of the Court of Justice of the European Communities and the subsequent proceedings
72. On 6 June 1995 the Court of Justice of the European Communities held a hearing on the questions for a preliminary ruling referred to it by the Athens District Court on 3 August 1993.
73. On 12 March 1996 it gave judgment on the reference for a preliminary ruling, holding that an increase in the capital of a bank constituted in the form of a public limited liability company by administrative measure was contrary to Article 25 of the Second Directive on companies, which guaranteed each shareholder the right to vote on the issue. It also rejected the BCG’s new board of directors’ argument that the applicants’ civil action constituted an abuse of rights, declaring: “… the uniform application and full effect of Community law would be undermined if a shareholder relying on Article 25 § 1 of the Second Directive were deemed to be abusing his rights merely because he was a minority shareholder of a company subject to reorganization measures or had benefited from the reorganization of the company. Since Article 25 § 1 applies without distinction to all shareholders, regardless of the outcome of any reorganization procedure, to treat an action based on Article 25 § 1 as abusive for such reasons would be tantamount to altering the scope of that provision.”
74. On 20 March 1996 the applicants again asked the Athens District Court to fix a hearing date for all their actions. A hearing was listed for 25 September 1996. However, this summons to fix an earlier hearing was never served on the defendants.
75. On 28 March 1996 the applicants, by two further summonses, (nos. 1302 and 1303/96), asked the Athens District Court to bring forward the date of the hearing for all their actions, on the ground that the Court of Justice of the European Communities had given an ad hoc interlocutory decision on certain legal aspects of the case. A hearing was set down for 29 May 1996.
76. On 16 April 1996 the court decided, in response to a summons (klissis) from the defendants, to resume consideration of actions nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991 and 5055/1993 on 25 September 1996.
77. On 21 May 1996 seventy-four former shareholders lodged an additional third-party application in support of the BCG. The Athens District Court decided to hear the case on 25 September 1996.
78. On 29 May 1996 the court adjourned the cases pending before it until the hearing on 25 September 1996, the date already fixed for consideration of the third-party application lodged in support of the BCG. It ruled that this application had not been lodged in order to prolong the proceedings.
79. In the event, it was not possible to hold the hearing on 25 September 1996, as the Greek courts did not sit between 18 and 25 September 1996 on account of a general election.
80. Following two summonses (nos. 3047/96 and 3048/96) taken out by the applicants on 12 September 1996, the Athens District Court tried cases nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991, 5055/1993 and cases nos. 45/1994 and 7968/1994 on 13 November 1996. On 27 February 1997 final decisions nos. 1499/1997 and 1500/1997, which dismissed all these actions, were published. The applicants asserted that the court dismissed all their claims “without taking into account the decisions of the Court of Justice of the European Communities” and that this, which was unprecedented in Greek law, constituted a serious breach of Community law. They asserted that the defendants – represented by the Minister for Economic Affairs and other parties under his control – had asked the Athens District Court in their written submissions to ignore completely the Luxembourg Court’s ad hoc judgment.
81. However, the proceedings in the civil courts are still pending on account of an appeal (anairessi) to the Court of Cassation lodged by the applicants.
PROCEEDINGS BEFORE THE COMMISSION
82. The one hundred and thirty-two applicants applied to the Commission on 30 June 1992. They alleged a number of violations of Articles 6 § 1, 13 and 25 of the Convention and Article 1 of Protocol No. 1.
83. On 18 January 1996 the Commission (First Chamber) declared the application (no. 20323/92) admissible in so far as it concerned the complaints of thirty-five of the applicants relating to the length of the proceedings in the Supreme Administrative Court and the Athens District Court and declared the remainder of the application inadmissible. In its report of 4 September 1996 (Article 31), it expressed the unanimous opinion that Article 6 § 1 of the Convention had been breached in two of the nine sets of proceedings complained of. The full text of the Commission’s opinion is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
84. In their memorial the Government asked the Court to “dismiss the application before it”.
85. At the hearing the applicants asked the Court to hold that Article 6 of the Convention had been breached “in all the civil proceedings, not just in those where the Commission [had] found a violation”.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
86. The applicants complained of the length of the proceedings in the Supreme Administrative Court and the Athens District Court. They alleged a breach of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…”
A. Applicability of Article 6 § 1
87. The Court notes that, when they applied to the Supreme Administrative Court, the applicants were seeking annulment of the decisions of the Governor of the Bank of Greece and the Prefect of Athens approving the first increase in the capital of the Bank of Central Greece (“the BCG”). In addition, in their eight actions in the Athens District Court, they challenged the lawfulness under Greek and European Community law of the six increases in the BCG’s capital – on the ground that they had not been ordered by a duly constituted general meeting of shareholders – or requested the court to refer to the Court of Justice of the European Communities for a preliminary ruling a question connected to the reference for a preliminary ruling of 3 August 1993.
Like the Commission, the Court considers that the purpose of the proceedings in question was to settle a dispute (“contestation”) over the applicants’ “civil rights and obligations”, since, as BCG shareholders, they could arguably claim under Greek and European Community legislation the right to vote on the increase in the bank’s capital and thus participate in decisions concerning the value of their shares.
Article 6 § 1 is therefore applicable in the case.
B. Compliance with Article 6 § 1
88. According to the Government, neither the Greek courts nor the applicants’ opponents could be considered responsible for the delays which occurred between 22 December 1986, when the applicants brought their first action in the Athens District Court, and 12 March 1996, when the Court of Justice of the European Communities gave judgment: a delay of five and a half years had been due to the proceedings in the Supreme Administrative Court, another, of one year, to the strike by members of the Athens Bar and a third, of two years and eight months, to the proceedings concerning the reference to the Luxembourg Court for a preliminary ruling.
The outcome of all the actions in which the applicants challenged the lawfulness of the decisions of the general meeting of shareholders depended on the District Court’s view of the validity of the first increase in the BCG’s capital. All of the delays which had held up consideration of these actions were without significance because the court would in any case have adjourned trial until its judgment on the first action had become final.
On 18 February 1987 the District Court decided, in accordance with Article 249 of the Code of Civil Procedure, to reserve judgment until the Supreme Administrative Court had ruled on the applicants’ application for judicial review. As a result, from the beginning of the proceedings in the District Court (on 22 December 1986) to the end of the proceedings in the Supreme Administrative Court (on 17 April 1992), the Greek courts and the State bore no responsibility whatsoever, irrespective of the reasons – and these were in any event valid – for which the proceedings conducted during that period had been adjourned. It was the applicants who had first applied to the Supreme Administrative Court and they could accordingly not complain of delays caused by the proceedings in that court. The Supreme Administrative Court had to review the conformity of certain provisions of banking legislation with the Greek Constitution and with Community law; the nature of the case and its major importance fully justified the adjournments ordered by the Supreme Administrative Court of its own motion. It was indeed the first time in the history of the Greek courts that it had been required to determine such issues, whose consequences were not limited to the relations between the opposing parties but affected the economy of the entire country.
Furthermore, the delivery of the Supreme Administrative Court’s judgment had coincided with the long strike by members of the Athens Bar, which had delayed trial of the applicants’ first civil action by about a year.
Lastly, it was the applicants who had asked the District Court to refer a question to the Court of Justice of the European Communities for a preliminary ruling. But the Court of Justice had not delivered its judgment until 12 March 1996, which meant that, even if the applicants’ civil actions had been heard before that date, the court would certainly have stayed the proceedings until the Court of Justice had given its ruling.
89. The applicants submitted that, in all the domestic proceedings, their opponents had been the Bank of Greece, the Agricultural Bank and the BCG, all owned or controlled by the State; their conduct could thus be equated with that of the State.
Out of a total of twelve adjournments before the Supreme Administrative Court, eleven were imputable to the State. The size of the file, which had been mentioned by the Government, could not give a serious indication of the complexity of the case. The argument relating to the reporting judge’s heavy workload in fact confirmed the State’s responsibility. Lastly, it had been unnecessary and unjustified for the Fourth Division of the Supreme Administrative Court to relinquish jurisdiction in favour of the plenary court.
From the procedural point of view, the decision of the Governor of the Bank of Greece and the Prefect of Athens to approve the increase in the BCG’s capital was an individual administrative decision which had been contested by the applicants by means of their application to the Supreme Administrative Court for judicial review; for as long as that decision had not been set aside, the Athens District Court had the power and the duty to review its lawfulness, independently of the judicial review proceedings, and – if it found it to be unlawful – to declare it null and void.
The strike by members of the Athens Bar could not validly be pleaded, since an adjournment for such a reason was certainly not compulsory; even if all the parties were not present in the courtroom, the courts had discretion whether to proceed with the hearing, and in any case no lawyer was in any danger of being penalised by the Bar Association’s disciplinary council for ignoring the Bar’s call to strike.
90. The Commission expressed the opinion that there had been a violation of Article 6 § 1 of the Convention in the judicial review proceedings in the Supreme Administrative Court and in the proceedings relating to action no. 10429/1986 (in so far as this had been brought by some of the applicants only) in the Athens District Court, but not in the other proceedings.
1. General considerations concerning all the sets of proceedings complained of
91. The Court does not question the complexity of the case or the importance of what was at stake for the parties to the proceedings in issue. It accepts the Government’s submission that the dispute the Supreme Administrative Court and the Athens District Court were required to settle raised serious questions regarding the interpretation of Greek and European Community law and that the outcome would have important repercussions not only for the parties to the various sets of proceedings but also for the country’s economy in general. However, the dispute’s complexity alone is not sufficient to justify such lengthy delays as occurred in the present case.
More decisive in that respect is the conduct of the parties and of the relevant judicial authorities.
92. The applicants and the Government blamed each other for numerous adjournments in the nine sets of proceedings complained of. The Government complained of procedural sharp practice on the applicants’ part, particularly the fact that they had registered the actions on the District Court’s list reserved for cases in which the preparations for trial were complete. On the other hand, the applicants stressed all the efforts they had made to have the hearing dates brought forward.
93. The Court observes that only delays imputable to the relevant judicial authorities can justify a finding that a reasonable time has been exceeded, contrary to the Convention. Even in legal systems applying the principle that the procedural initiative lies with the parties, the latter’s attitude does not absolve the courts from the obligation to ensure the expeditious trial required by Article 6 § 1.
94. Apart from the complexity of the case – and the conduct of the parties and the judicial authorities, which will be considered below – the Court notes that in the present case three additional factors contributed to the prolongation of the proceedings concerned. These were the reference to the Court of Justice of the European Communities for a preliminary ruling, the strike by members of the Athens Bar for nearly a year (see paragraph 96 below) and the close connection between the nine sets of proceedings.
95. As regards the proceedings before the Court of Justice of the European Communities, the Court notes that the Athens District Court decided on 3 August 1993 to refer a question to the Court of Justice, which gave judgment on 12 March 1996. During the intervening period the proceedings in the actions concerned were stayed, which prolonged them by two years, seven months and nine days. The Court cannot, however, take this period into consideration in its assessment of the length of each particular set of proceedings: even though it may at first sight appear relatively long, to take it into account would adversely affect the system instituted by Article 177 of the EEC Treaty and work against the aim pursued in substance in that Article.
96. As regards the strike by members of the Athens Bar, this lasted from 20 May 1992 to 8 March 1993 and started again on 28 June 1993. The Court is aware of the damaging consequences of such a long strike; not only does it aggravate the judicial system’s structural problems, by adding to the courts’ backlog of business, but it also affects the rights and interests of those whom lawyers have a solemn duty to protect, namely litigants, who find that their cases are held up by one extra delay after another. However, notwithstanding the Bar’s legal personality under public law, it is essentially a professional association; in calling on its members to withdraw their services it was taking action designed to defend their professional interests, not exercising one of the functions of a public authority. The delays caused by the strike cannot therefore be attributed to the State.
97. On the question of the close connection between the different sets of proceedings, the Court notes that the Athens District Court adjourned a number of the cases concerned (in particular those relating to actions nos. 45/1994 and 7968/1994) in order to await the outcome of those relating to actions nos. 10429/1986, 5220/1989, 11301/1990, 6137/1991 and 5055/1993 and that the Fourth Division of the Supreme Administrative Court relinquished jurisdiction in favour of the plenary court. In that connection, the Court observes that, although Article 6 of the Convention requires judicial proceedings to be conducted expeditiously, it also lays down the more general principle of the proper administration of justice. In the circumstances of the case, the fact that the proceedings in these actions were stayed and the reference to the plenary court were compatible with the fair balance which has to be struck between the various aspects of this fundamental requirement (see the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82, § 39).
The delays due to the above three factors were therefore beyond the jurisdiction of the domestic courts in general and the Supreme Administrative Court and the Athens District Court in particular. The Court will accordingly take into consideration only the delays that the latter could, in one way or another, have avoided or reduced.
2. Considerations specific to each set of proceedings
(a) The proceedings for judicial review in the Supreme Administrative Court, brought by Mr T. Frangos, Mr C.P. Pafitis and Mr P. Pafitis
98. These proceedings began on 1 December 1986 and ended on 17 April 1992 with the judgment of the plenary court, in whose favour the Fourth Division had relinquished jurisdiction on 14 June 1988. They therefore lasted five years, four months and sixteen days.
There is no doubt that this was a very lengthy period, caused partly by the reference of the case to the plenary court and partly by the twelve adjournments, eight of which – as the Government admitted – were ordered by the Supreme Administrative Court of its own motion (on 2 June and 27 October 1987, 2 February and 2 December 1988, 12 May and 6 October 1989, 9 February 1990 and 8 March 1991); the first seven of these caused a
continuous period of inactivity which lasted two years and three months. Two further adjournments were requested by the parties (on 26 October 1990 and 11 October 1991) and one was due to the strike by members of the Athens Bar (on 17 May 1991).
99. The Government submitted that the adjournments ordered by the Supreme Administrative Court were explained by the quantity of documents the reporting judge had to study, the complexity of the legal issues raised and the major importance of the grounds of annulment relied on. The applicants argued that all the questions of law and of fact had already been answered in the opinion of the reporting judge when the case was pending in the Fourth Division of the Supreme Administrative Court, so that no adjournment on account of that judge’s excessive workload could be justified after the reference to the plenary court.
100. Having regard to the foregoing, and to its considerations on the complexity of the case (see paragraph 91 above), the Court cannot consider reasonable in the present case a period of five years, four months and sixteen days.
There has accordingly been a breach of Article 6 § 1 as regards these proceedings.
(b) The proceedings concerning action no. 10429/1986 in the Athens District Court
(i) In so far as it was brought by Mr T. Frangos, Mr C.P. Pafitis, Mr P. Pafitis, the Sterea company, Mrs P. Vossinaki and Mr N. Vossinakis
101. These proceedings began on 22 December 1986 and are still pending in the Court of Cassation.
The Court notes, in the first place, that the proceedings in the District Court were stayed for about five years pending the outcome of the judicial review proceedings, that is from 29 April 1987 to 17 April 1992, when the Supreme Administrative Court gave judgment. On 3 August 1993 the court referred a question for a preliminary ruling to the Court of Justice of the European Communities, which did not give judgment until 12 March 1996. Lastly, the proceedings remained dormant from 12 May 1992 to 12 May 1993 on account of the strike by members of the Athens Bar.
Only the first delay is imputable to the court, and this was due to the length of the proceedings in the Supreme Administrative Court.
102. Considering that the District Court had a responsibility for this delay separate from that of the Supreme Administrative Court, the Commission expressed the opinion that there had been a breach of Article 6 § 1 in this respect.
103. The Government maintained that such a conclusion breached the non bis in idem principle.
104. The Court notes that the proceedings complained of began on 22 December 1986 and continued, before the District Court gave judgment, over a period of ten years, two months and five days. The progress of the proceedings, in so far as this depended on the court, was detrimentally affected by the delays noted in the Supreme Administrative Court. As in the latter instance, therefore, there has been a breach of Article 6 § 1 as regards the applicants concerned.
(ii) In so far as it was brought by Mr P. Kallifatidis, the Parthenon company, Mr T. Therapiotis, Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, the Investment and Shipping Enterprises Establishment company, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, Mr G. Papadimitroulas, Mr G. Poulis, Mrs E. Tsekoura, Mr J. Tsekouras, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
105. These applicants applied to the District Court on 12 May 1992, after the Supreme Administrative Court had given judgment. However, most of the delays which occurred after that date were due, firstly, to the proceedings concerning the reference to the Court of Justice of the European Communities for a preliminary ruling, and secondly to the strike by members of the Athens Bar.
Like the Commission, the Court concludes that there has been no breach of Article 6 § 1 as regards these applicants.
(c) The proceedings concerning action no. 5220/1989 in the Athens District Court, brought by Mr P. Kouniniotis, Mr C. Economidis-Doumbas, Mr T. Frangos, the Investment and Shipping Enterprises Establishment company, Mr C.P. Pafitis, Mr P. Pafitis, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, the Sterea company, Mrs P. Vossinaki and Mr N. Vossinakis
106. The proceedings began on 13 June 1989, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted seven years, eight months and two weeks.
Like the Commission, the Court notes that only a delay of five months is imputable to the District Court, which adjourned of its own motion the hearings set down for 18 December 1991 and 1 April 1992.
From 27 May 1992 until the day when the court gave judgment the proceedings followed the same course as those concerning action no. 10429/1986; however, during that period no delay can be attributed to the court.
There has accordingly been no breach of Article 6 § 1 as regards these proceedings.
(d) The proceedings concerning action no. 11301/1990 in the Athens District Court, in so far as this was brought by Mr M. Anatolitis, Mr P. Kouniniotis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, Mrs A. Gogora, Mr M. Iliadis, the Investment and Shipping Enterprises Establishment company, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, the Sterea company, Mr P. Toskos, Mr T. Triantafyllidis, Mrs E. Tsekoura, Mr J. Tsekouras, Mrs P. Vossinaki, Mr N. Vossinakis, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
107. The proceedings began on 23 November 1990, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted six years, four months and four days.
Like the Commission, the Court notes that only a delay of five months is imputable to the District Court, which adjourned of its own motion the hearings set down for 18 October 1991 and 1 April 1992. The hearing fixed for 5 June 1991 was adjourned on account of the strike by members of the Athens Bar.
From 18 December 1991 onwards the proceedings followed the same course as those concerning actions nos. 10429/1986 and 5220/1989.
That being the case, the Court considers that there has been no breach of Article 6 § 1 as regards these proceedings.
(e) The proceedings concerning action no. 6137/1991 in the Athens District Court, in so far as this was brought by Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, the Investment and Shipping Enterprises Establishment company, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, Mr G. Papadimitroulas, Mr G. Poulis, the Sterea company, Mr A. Toskos, Mr P. Toskos, Mrs E. Tsekoura, Mr J. Tsekouras, Mr K. Vayiotis, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
108. The proceedings began on 7 June 1991, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted five years, eight months and twenty days.
Like the Commission, the Court notes that only a delay of seven months is imputable to the District Court, which adjourned of its own motion the hearings set down for 2 October and 18 December 1991 and 1 April 1992.
From 12 May 1992 onwards the proceedings followed the same course as those concerning actions nos. 10429/1986, 5220/1989 and 11301/1990.
There has therefore been no breach of Article 6 § 1 as regards these proceedings.
(f) The proceedings concerning action no. 5055/1993 in the Athens District Court, brought by Mr C. Economidis-Doumbas, Mr T. Frangos, the Investment and Shipping Enterprises Establishment company, Mr C.P Pafitis, Mr P. Pafitis and the Sterea company
109. These proceedings began on 5 May 1993, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted three years, nine months and twenty-two days.
The Court notes that a hearing was held on 12 May 1993, that is seven days after the action was brought, and that on 3 August 1993 the District Court adjourned the case pending the outcome of the reference to the Court of Justice of the European Communities for a preliminary ruling. From the date of the hearing onwards the proceedings followed the same course as those concerning the previous actions.
Again, therefore, there has been no breach of Article 6 § 1 as regards these proceedings.
(g) The proceedings concerning action no. 23/1994 in the Athens District Court, in so far as this was brought by Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, the Investment and Shipping Enterprises Establishment company, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, Mr G. Poulis, the Sterea company, Mrs E. Tsekoura, Mr J. Tsekouras, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
110. These proceedings began on 3 January 1994, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 31 January 1995. Until that date, therefore, the proceedings had lasted one year and twenty-eight days. Such a period cannot be regarded as excessive for the purposes of Article 6 § 1, regard being had, in addition, to the fact that the four adjournments were due, in the first case, to the strike by the members of the Athens Bar, and in the other three cases to the conduct of the applicants’ lawyers.
There has therefore been no violation of Article 6 § 1 as regards these proceedings.
(h) The proceedings concerning action no. 45/1994 in the Athens District Court, brought by Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, the Investment and Shipping Enterprises Establishment company, Mr P. Kallifatidis, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, Mr G. Poulis, the Sterea company, Mrs E. Tsekoura, Mr J. Tsekouras, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
111. These proceedings began on 4 January 1994, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted three years, one month and twenty-three days.
The Court notes that hearings were adjourned on 16 February, 16 March and 25 May 1994 on account of the strike by members of the Athens Bar. On 29 May 1995 the District Court stayed the proceedings pending the outcome of those concerning actions nos. 10429/1986, 5220/1989 and 5055/1993.
Accordingly, no delay is imputable to that court.
There has therefore been no breach of Article 6 § 1 as regards these proceedings.
(i) The proceedings concerning action no. 7968/1994 in the Athens District Court, brought by Mr M. Anatolitis, Mr C. Economidis-Doumbas, Mr T. Frangos, Mr S. Georgiadis, Mrs M. Georgiadou-Michail, the Investment and Shipping Enterprises Establishment company, Mr P. Kallifatidis, Mr G. Karageorgopoulos, Mr N. Karatzas, Mr H. Makrygiorgos, Mrs M. Makrygiorgou, Mr C.P. Pafitis, Mr P. Pafitis, Mr P. Panagiotopoulos, Mrs A. Panagiotopoulou, Mrs L. Panagiotopoulou, Mr G. Poulis, the Sterea company, Mr T. Therapiotis, Mrs E. Tsekoura, Mr J. Tsekouras, Mr D. Voudouris, Mr V. Xeromeritis and Mr J. Zoungos
112. These proceedings began on 26 September 1994, with the application to the Athens District Court, and are still pending in the Court of Cassation. The District Court gave judgment on 27 February 1997. Until that date, therefore, the proceedings had lasted two years, five months and one day.
The Court notes that the hearing initially set down for 2 November 1994 was put back so that it could be held on the same day as the hearing fixed for action no. 45/1994 (on 1 February 1995), on account of the related subject matter of the two cases (Article 246 of the Code of Civil Procedure). On 29 May 1995 the District Court decided to stay the proceedings pending the judgment of the Court of Justice of the European Communities and its own judgments in the previous cases.
There has therefore been no breach of Article 6 § 1 as regards these proceedings.
II. application of article 50 of the convention
113. Under Article 50 of the Convention,
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
114. For non-pecuniary damage and what they described as general pecuniary damage (in order to distinguish it from the special damage they also considered they had sustained, which is made up of the costs resulting from the length of the proceedings), the applicants claimed 30 million drachmas (GRD).
They pleaded their immense disappointment, anxiety and distress during the long periods of inactivity on the part of the Greek courts. They observed that the disconcerting waste of time and energy every time a hearing was adjourned was well known in every legal system as a means of exhausting an opponent in the courts. They pointed out that the State, represented by the Minister for Economic Affairs, was the principal defendant in the proceedings before the Supreme Administrative Court and that it had also intervened in each of the eight sets of proceedings in the Athens District Court. In addition, the damage they had sustained had been aggravated by the prolongation of their uncertainty as to the legal status and market value of their shares.
115. The Government submitted that the Court should award compensation only for that portion of the proceedings considered to be unreasonable and in the light of the fact that the Supreme Administrative Court and the Athens District Court had dismissed the applicants’ actions.
116. The Delegate of the Commission considered that the applicants were entitled to compensation.
117. Making an assessment on an equitable basis, the Court awards jointly to Mr C.P. Pafitis, Mr P. Pafitis, Mr T. Frangos, the Sterea company, Mrs P. Vossinaki and Mr N. Vossinakis – whom it has held to be victims of a breach of Article 6 § 1 – the overall sum of GRD 7,500,000 for non-pecuniary damage.
B. Costs and expenses
118. The applicants claimed GRD 585,700,000 for the proceedings in the Supreme Administrative Court, for the proceedings in the Athens District Court concerning action no. 10429/1986 and for the proceedings before the Court of Justice of the European Communities. They sought a further GRD 390,525,000 for the proceedings before the Strasbourg institutions. The first of these sums includes not only lawyers’ fees but also reimbursement of the cost of numerous procedural steps, such as summonses, notices served on each defendant and the parties who had intervened in the applicants’ support, notices of applications to expedite the proceedings, certified copies, etc. Lawyers’ fees are calculated on the basis of the national scales and fixed at a percentage of the value of the sums claimed in the various actions.
119. The Government were prepared to accept only reasonable costs which had been necessarily and actually incurred through the excessive length of the proceedings. They pointed out that all the actions concerned were pending in the Court of Cassation, which would award the applicants costs if it upheld their claims. Lastly, they emphasised that in Greece the costs of an adjournment did not exceed the equivalent in drachmas of 50 French francs.
120. The Delegate of the Commission submitted that before the Court awarded any sum under this head it should first verify whether there was a causal connection between the costs claimed and (a) the length of the proceedings (in the Greek courts); (b) the complaints in respect of which it had found a violation (as regards the Strasbourg proceedings).
121. The Court observes that, according to its established case-law, it is not bound by the rules of domestic practice in this area (see, among many other authorities, the Papamichalopoulos and Others v. Greece judgment of 31 October 1995 (Article 50), Series A no. 330-B, p. 62, § 47).
However, the numerous adjournments of the proceedings in the Supreme Administrative Court and the Athens District Court, when the latter ruled on action no. 10429/1986, caused the applicants to incur costs which were not inconsiderable.
Making an assessment on an equitable basis, the Court awards to the applicants mentioned in paragraph 117 above, jointly, the overall sum of GRD 9,000,000 for costs and expenses.
C. Default interest
122. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
For these reasons, the court
1. Holds unanimously that Article 6 § 1 of the Convention is applicable in the case;
2. Holds unanimously that there has been a breach of Article 6 § 1 as regards Mr C.P. Pafitis, Mr P. Pafitis, Mr T. Frangos, the Sterea company, Mrs P. Vossinaki and Mr N. Vossinakis in the proceedings for judicial review in the Supreme Administrative Court and in the proceedings concerning action no. 10429/1986 in the Athens District Court;
3. Holds by eight votes to one that there has been no breach of Article 6 § 1 as regards the other twenty-nine applicants;
4. Holds unanimously
(a) that the respondent State is to pay Mr C.P. Pafitis, Mr P. Pafitis, Mr T. Frangos, the Sterea company, Mrs P. Vossinaki and Mr N. Vossinakis jointly, within three months, 7,500,000 (seven million five hundred thousand) drachmas for non-pecuniary damage and 9,000,000 (nine million) drachmas for costs and expenses;
(b) that simple interest at an annual rate of 6% shall be payable on these sums from the expiry of the above-mentioned three months until settlement;
5. Dismisses by eight votes to one the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 February 1998.
Signed: Thor Vilhjalmsson
President
Signed: Herbert Petzold
Registrar
In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the partly dissenting opinion of Mr Mifsud Bonnici is annexed to this judgment.
Initialled: T. V.
Initialled: H. P.
PARTLY DISSENTING OPINION
OF JUDGE MIFSUD BONNICI
1. I form part of the majority on all the operative parts of the judgment except for points 3 and 5 where the majority found that there had been no violation of Article 6 § 1 with regard to cases nos. 5220/1989, 11301/1990 and 6137/1991 and, accordingly, I think that compensation is due for these last-mentioned three cases.
2. These cases lasted seven years and eight months, six years and four months and five years and eight months respectively.
3. These three cases lasted for such an unreasonable length of time because in all of them the court awaited the decision which was to be given in case no. 10429/1986. Because of this factor the majority took the view that there had been no breach of the guarantee of a hearing within a reasonable time in Article 6 § 1.
4. It is on this point that I dissent. In my view the applicants in the three above-mentioned cases had a right to expect that their cases would be heard within a reasonable time, irrespective of whether, in the opinion of the judges hearing the cases, it was expedient to await the outcome of case no. 10429/1986. That case was not heard within a reasonable time. The applicants in that case therefore suffered a breach of the basic right guaranteed by Article 6 § 1 and I cannot agree that the applicants in the three subsequent cases did not suffer the same kind of breach, just because their cases were made to depend on the first one. Surely it follows – logically and juridically – that the breach of the reasonable time requirement in the first case cannot be said to have purged the unreasonable delay in the three cases which followed it simply because it was juridically convenient to tie them up with the previous case which was already unreasonably long.
5. The judgment on this point appears (at least) to imply that the length of the proceedings in the first case serves as a justification for the length of proceedings in subsequent cases. The violation suffered by the applicants in these three cases cannot be so justified and these applicants should have been granted a remedy for the breach they suffered even though it was due to the breach suffered by others before them.
1. This summary by the registry does not bind the Court.
Notes by the Registrar
1. The case is numbered 163/1996/782/983. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
1. Note by the Registrar: for practical reasons, this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is available from the registry.
Hudoc reference REF00000996
Document type Judgment (Merits and just satisfaction)
Title CASE OF PORTINGTON v. GREECE
Application number 00028523/95
Date 23/09/1998
Respondent Greece
Conclusion Violation of Art. 6-1 ; Non-pecuniary damage - finding of violation sufficient ; Costs and expenses partial award - Convention proceedings
Published in Reports 1998-VI
Keywords CRIMINAL PROCEEDINGS ; REASONABLE TIME
----------------------------------------------------
EUROPEAN COURT OF HUMAN RIGHTS
AFFAIRE PORTINGTON c. GRECE
CASE OF PORTINGTON v. GREECE
(109/1997/893/1105)
ARRET/JUDGMENT
STRASBOURG
23 septembre/September 1998
Cet arret peut subir des retouches de forme avant la parution de sa version definitive dans le Recueil des arrets et decisions 1998, edite par Carl Heymanns Verlag KG (Luxemburger Stra?e 449, D-50939 Cologne) qui se charge aussi de le diffuser, en collaboration, pour certains pays, avec les agents de vente dont la liste figure au verso.
The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Stra?e 449, D-50939 Koln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.
List of Agents
Belgium: Etablissements Emile Bruylant (rue de la Regence 67, B-1000 Bruxelles)
Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)
The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ’s-Gravenhage)
SUMMARY1
Judgment delivered by a Chamber
Greece – length of criminal appeal proceedings
I. article 6 § 1 of the convention (“reasonable time”)
A. Period to be taken into consideration
Starting-point: when appeal lodged.
End: when appeal finally heard and judgment delivered by Court of Appeal.
Total: almost eight years.
B. Applicable criteria
Complexity of case: complexity of issues involved cannot explain length of proceedings – noteworthy that it took trial court just one day to hear case and deliver judgment and Court of Appeal also one day to dispose of appeal.
Conduct of applicant: disagreement between parties on whether all adjournments of hearings requested by applicant – nevertheless, even if all delays attributable to requests made by him and he may be considered on that account to be responsible for some of delay, this cannot justify length of periods in between individual hearings and certainly not total length of appeal proceedings.
Conduct of national authorities: several periods of inactivity in appeal proceedings – after applicant had filed appeal, case lay dormant for over one year and seven months until it was listed for first hearing – procedural measures which had to be taken in order to have case file transferred to appellate court cannot explain such excessive period of delay – furthermore, case relisted on four occasions – this gave rise to periods of inactivity in between dates set for hearing – Government’s submissions that length of one of those periods was caused by lawyers’ strikes dismissed since over five months elapsed after end of strikes and before case was listed – this delay also attributed to conduct of national authorities – these and remaining periods of inactivity cannot be excused by Court of Appeal’s volume of work – Article 6 § 1 imposes on Contracting States duty to organise their judicial systems in such way that their courts can meet each of its requirements.
Conclusion: violation (unanimously).
II. application of article 50 of the convention
A. Non-pecuniary damage
Judgment constitutes in itself sufficient just satisfaction.
B. Costs and expenses
Claim allowed in part.
Conclusion: finding of violation constitutes sufficient just satisfaction for alleged non-pecuniary damage; respondent State to pay specified sum to applicant for costs and expenses (unanimously).
COURT'S CASE-LAW REFERRED TO
27.6.1997, Philis v. Greece (no. 2); 25.11.1997, Zana v. Turkey
In the case of Portington v. Greece1,
The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A2, as a Chamber composed of the following judges:
Mr Thor Vilhjalmsson, President,
Mr C. Russo,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr D. Gotchev,
Mr B. Repik,
Mr U. Lohmus,
Mr P. van Dijk,
Mr V. Butkevych,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 30 June and 25 August 1998,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the Greek Government (“the Government”) on 11 December 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 28523/95) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by a British national, Mr Philip Portington, on 11 May 1995.
The Government’s application referred to Articles 44 and 48 of the Convention and Rule 32 of Rules of Court A. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d), the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). The Government of the United Kingdom, having been informed by the Registrar of their right to intervene (Article 48 (b) of the Convention and Rule 33 § 3 (b)), indicated that they did not intend to do so.
3. The Chamber to be constituted included ex officio Mr N. Valticos, the
elected judge of Greek nationality (Article 43 of the Convention), and Mr R. Ryssdal, the then President of the Court (Rule 21 § 4 (b)). On 31 January 1998, in the presence of the Registrar, Mr R. Bernhardt, Vice-President of the Court at the time, drew by lot the names of the other seven members, namely Mr Thor Vilhjalmsson, Mr C. Russo, Mr J.M. Morenilla, Mr D. Gotchev, Mr B. Repik, Mr P. van Dijk and Mr V. Butkevych (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr Thor Vilhjalmsson, the new Vice-President of the Court, replaced as President of the Chamber, Mr Ryssdal, who died on 18 February 1998 (Rule 21 § 6, second sub-paragraph), and Mr U. Lohmus, the first substitute judge, became a full member of the Chamber (Rule 22 § 1).
4. As President of the Chamber at the time (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicant’s memorials on 1 April and 20 April 1998 respectively, Mr Bernhardt, the Vice-President of the Court at the time, having acceded to the applicant’s request for an extension of the time-limit for the submission of his memorial.
5. On 24 August 1998, having consulted the Agent of the Government and the Delegate of the Commission, the President of the Chamber acceded to the applicant’s request for legal aid (Rule 4 of the Addendum to Rules of Court A).
6. In accordance with the President’s decision the hearing took place in public in the Human Rights Building, Strasbourg, on 24 June 1998. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr A. Apessos, Adviser, State Legal Council, Delegate of the Agent,
Mrs V. Pelekou, Legal Assistant, State Legal Council, Counsel;
(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicant
Mr K. Starmer, Barrister-at-Law, Counsel,
Mr A. McCooey, Solicitor,
Mr J. McCooey, Solicitor, Advisers.
The Court heard addresses by Mr Rozakis, Mr Starmer and Mrs Pelekou.
AS TO THE FACTS
THE CIRCUMSTANCES OF THE CASE
7. The applicant is a British citizen born in 1950. He is currently detained in Wandsworth Prison, London.
8. In 1986, on a date which has not been specified, while crossing the frontier into Greece the applicant was arrested and charged with committing a murder in July 1985 on his previous visit to Greece as well as with using and carrying arms. He denied the charges.
9. The applicant was remanded in custody by the magistrates of Kastoria on a date which has not been specified. On 28 February 1986 he was committed for trial by the Indictments Division of the First Instance Criminal Court (Symvoulio Plimmeliodikon) of Kastoria. On 27 November 1987 his appeal against the decision of 28 February 1986 was dismissed by the Indictments Division of the Salonika Court of Appeal (Symvoulio Efeton) which further charged him with robbery.
10. On 17 February 1988, after a hearing which lasted one day, the Salonika Criminal Court (Mikto Orkoto Dikastirio) composed of jurors and professional judges convicted the applicant of all the charges. He was sentenced to the death penalty for murder, to life imprisonment for robbery and to five years’ imprisonment for carrying and using arms. On 18 February 1988 the applicant appealed against the verdict on the ground that the evidence before the trial court did not sustain a finding of guilt.
11. On 6 October 1989 the applicant’s appeal came for hearing before the Salonika Criminal Court of Appeal (Mikto Orkoto Efetio). The applicant was represented by officially appointed counsel, Mr H. Nine prosecution witnesses were absent. According to the Government, the applicant, through his defence counsel, requested an adjournment on the ground that, while none of the witnesses present had first-hand information about the murder, there was a person in England who knew about the case and who should be called to testify. The Court of Appeal granted the applicant’s request and adjourned the hearing sine die to enable further evidence to be obtained. The applicant disputes this and maintains that he did not instruct his lawyer to apply for an adjournment and that the Court of Appeal adjourned the case on the ground that it was necessary to hear the testimony of all the witnesses, including the nine who were absent at the appeal hearing.
12. The applicant's appeal came for hearing again on 19 April 1991. According to the Government, the applicant asked for the adjournment of the case on the ground that a certain lawyer, Mr G., who had taken over his case a year before was not present at the hearing. Mr H., who was present, stated that he was prepared to defend the applicant. The prosecutor considered that the case should be heard on that day. The court decided to adjourn sine die to enable the applicant to be represented by Mr G. The applicant submits that he did not request that the court adjourn sine die but merely sought a brief adjournment to enable him to arrange his legal representation.
13. On 8 February 1993 the applicant appeared again before the Court of Appeal, represented by another counsel, Mr S. The defence asked for an adjournment on the ground that six prosecution witnesses were absent. The prosecution agreed and the court adjourned sine die. The applicant claims that he did not request that the court adjourn sine die but merely requested that all witnesses be present. Between 27 May 1993 and 31 December 1993, 16 February 1994 and 17 February 1994, 7 March 1994 and 11 March 1994, 16 March 1994 and 18 March 1994, 21 March 1994 and 13 May 1994 and 16 May 1994 and 30 June 1994 lawyers were on strike.
14. A new hearing for the applicant’s appeal was fixed for 5 December 1994. According to the Government, the applicant asked for an adjournment on the ground that he wanted to be represented by a lawyer whom the British Embassy had found for him and whom he did not name. The prosecutor agreed and the court adjourned sine die. The applicant submits however that this reflects the position as at 19 April 1991 (see paragraph 12 above), and by December 1994 he was represented by Mr E., and did not want to change lawyers.
15. The applicant’s appeal was finally heard on 12 February 1996. The Court of Appeal upheld his conviction but commuted his death sentence to life imprisonment. At the time of the Court’s consideration of the case the applicant had lodged an appeal on points of law.
PROCEEDINGS BEFORE THE COMMISSION
16. Mr Portington applied to the Commission on 11 May 1995. He complained under Article 6 § 1 of the Convention of the length of the criminal proceedings against him.
17. The Commission (First Chamber) declared the application (no. 28523/95) admissible on 16 October 1996. In its report of 10 September 1997 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention. The full text of the Commission’s opinion is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
18. The applicant in his memorial requested the Court to find that the facts of the case disclosed a violation of Article 6 § 1 of the Convention and to award him just satisfaction under Article 50.
The Government for their part requested the Court to find that Article 6 § 1 had not been violated in the present case.
as to the law
# alleged violation of article 6 § 1 of the convention
19. The applicant contended that the criminal appeal proceedings in his case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, the relevant parts of which provide:
“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…”
The Commission agreed with the applicant’s arguments whereas the Government contended that the facts of the case disclosed no breach of that provision.
# Period to be taken into consideration
20. The Court notes that the applicant’s complaint concerns the length of the appeal proceedings before the Salonika Criminal Court of Appeal. Therefore, the period to be taken into account began on 18 February 1988, the date on which he lodged an appeal against the judgment of the trial court, and ended on 12 February 1996, when his appeal was finally heard and judgment delivered by the Court of Appeal (see paragraphs 10 and 15 above). The appeal proceedings accordingly lasted almost eight years.
# Reasonableness of the length of the proceedings
21. The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see, among other authorities, the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, § 35).
1. Complexity of the case
22. The applicant submitted that the case was not complex. He pointed out that he was the only defendant involved and that all the charges against him arose out of the same event. Moreover, the evidence before the Court of Appeal was not voluminous and the court’s task was not complicated by the need to consider any expert evidence. The legal issues raised by the case were not complex and the trial took just one day.
23. The Government maintained that the case was complex. It involved voluminous evidence which had to be obtained in part from abroad. In addition, the nature of the charge contributed to the complexity of the case.
24. The Commission considered that the case was of a certain complexity since it involved an appeal against a conviction on a murder charge.
25. The Court considers that, even though the case was of some complexity, having regard to the serious nature of the conviction and the applicant’s grounds of appeal, it cannot be said that this in itself justified the length of the proceedings on appeal. In this regard it is noteworthy that it took the trial court just one day to hear the case and deliver judgment and the Court of Appeal also one day to dispose of the appeal (see paragraphs 10 and 15 above). As the length of the proceedings cannot be explained in terms of the complexity of the issues involved, the Court will examine it in the light of the conduct of the applicant and the national authorities (see paragraph 21 above).
# Conduct of the applicant
26. The applicant maintained that his conduct did not contribute in any way to the length of the proceedings. On the contrary, throughout the whole of the period of the appeal proceedings he had requested that his case be listed for hearing. He also enlisted numerous groups and individuals to make requests on his behalf to expedite the proceedings. Furthermore, the applicant contended that he had not requested adjournments of hearings on 6 October 1989 and 5 December 1994 (see paragraphs 11 and 14 above). As to his requests for adjournments on 19 April 1991 and 8 February 1993, he did not ask the court to adjourn sine die but merely sought brief adjournments to allow his lawyer and prosecution witnesses to be present (see paragraphs 12–13 above).
27. The Government submitted that the applicant had requested all the adjournments of the appeal hearings and was therefore solely responsible for the delays in his case. He never availed himself of the possibility under the Code of Criminal Procedure to ask for brief adjournments. Even if the periods in between individual appeal hearings had been shorter, this would have made no difference to the applicant since he was not ready for the appeal hearing. His only concern was to have it adjourned irrespective of the resulting delays. Furthermore, he had never complained before the appellate court about the length of the proceedings and he had lodged his application with the Commission only shortly before the final appeal hearing.
28. The Commission agreed with the Government that the applicant had requested a number of adjournments. However, the Delegate of the Commission pointed out that the applicant’s requests had been based on plausible grounds and did not justify the sine die referrals and excessive delays in rehearing the case.
29. The Court notes that there is disagreement about whether all the adjournments of hearings were requested by the applicant. Nevertheless, even if all the delays were attributable to requests made by him and he may be considered on that account to be responsible for some of the delay which resulted, this cannot justify the length of the periods in between individual hearings and certainly not the total length of the appeal proceedings – almost eight years (see, mutatis mutandis, the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII, p. 2552, § 79).
# Conduct of the national authorities
30. The applicant submitted that the respondent State was responsible for most, if not all, delays in the proceedings. He contended that the national authorities bore the responsibility for not ensuring the presence of witnesses on 6 October 1989 and 8 February 1993, which led to the adjournment of hearings. Although he might have contributed to some extent to the overall delay by asking on 19 April 1991 for an adjournment to arrange for his representation, the delays in listing the case after that date and other adjournments were attributable to the national authorities (see paragraph 12 above).
31. The Government maintained that the time which elapsed between individual hearings was entirely reasonable and justified. In particular, the Government pointed out that the delay in listing the first hearing after the applicant had lodged an appeal on 18 February 1988 was caused by the need to take several procedural measures, such as the transfer of the case file to the appellate court and the referral of the case to the public prosecutor at that court. As for the adjournment of the hearing on 6 October 1989, this was caused by the applicant who wanted to have his witness residing in England testify and not by the absence of the nine prosecution witnesses whose evidence could in any event have been readily read out from the transcripts available to the court (see paragraph 11 above). Further, all the subsequent delays in listing the case were the responsibility of the applicant who had asked for adjournments. Witnesses had to be summoned anew before each hearing.
In addition, the Salonika Court of Appeal, which had dealt with the applicant’s case, was an assize court responsible for a large number of serious cases and whose jurisdiction extended over a wide area. The Government also recalled that between 27 May 1993 and 30 June 1994 lawyers had been on strike on several occasions and this factor also contributed to the length of the proceedings (see paragraph 13 above).
32. The Commission considered that the State authorities were responsible for several periods of inactivity in the proceedings. In particular, the respondent State was responsible for a delay between 18 February 1988 when the appeal was lodged and 6 October 1989 when the first hearing was held. As that hearing had to be adjourned because nine prosecution witnesses were absent, the national authorities were also responsible for the delay preceding the second listing of the case on 19 April 1991. The Commission further considered that the respondent State was responsible for the remaining delays even though the applicant also bore a certain degree of responsibility because of his two requests for adjournments on 19 April 1991 and 5 December 1994.
For the above reasons the Commission concluded that the length of the proceedings failed to meet the “reasonable time” requirement.
33. The Court notes that there were several periods of inactivity in the appeal proceedings before the Salonika Criminal Court of Appeal. After the applicant had filed an appeal on 18 February 1988 the case lay dormant for over one year and seven months until it was listed for the first hearing on 6 October 1989 (see paragraphs 10–11 above). The Government have sought to explain this by reference to the procedural measures which had to be taken in order to have the case file transferred to the appellate court (see paragraph 31 above). However, the Court considers that this cannot explain such an excessive delay, which must be imputed to the authorities.
Furthermore, after 6 October 1989, the case was relisted on four occasions: 19 April 1991, 8 February 1993, 5 December 1994 and 12 February 1996. This gave rise to periods of inactivity in between the dates set for hearing lasting: one year, six months and twelve days; one year, nine months and nineteen days; one year, nine months and twenty-six days and one year, two months and six days (see paragraphs 11-15 above). As regards the Government’s submissions that the length of the third of those periods (one year, nine months and twenty-six days) was caused by the lawyers’ strikes, it is to be noted that a period of over five months elapsed after the end of the strikes and before the case was listed on 5 December 1994 (see paragraphs 13–14 above). This delay also has to be attributed to the conduct of the national authorities. As for these and the remaining periods of inactivity, they cannot be excused by the volume of work with which the Salonika Criminal Court of Appeal had to contend at the relevant period. The Court recalls that Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see the above-mentioned Philis (no. 2) judgment, p. 1084, § 40).
# Conclusion
34. The Court concludes that the complexity of the case and the applicant’s conduct are not in themselves sufficient to justify the length of the appeal proceedings. Although it is true that the applicant may be responsible for some delay in the proceedings resulting from his requests for adjournments, the overall delay was essentially due to the way in which the authorities handled the case. Regard being had to the importance of what was at stake for the applicant, who was sentenced to the death penalty by the trial court, a total lapse of time in hearing his appeal of approximately eight years cannot be regarded as reasonable. There has accordingly been a breach of Article 6 § 1 of the Convention.
# application of article 50 of the convention
35. The applicant claimed just satisfaction under Article 50 of the Convention, which provides:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
# Non-pecuniary damage
36. The applicant sought compensation for non-pecuniary damage. He submitted that he had suffered anxiety about the uncertainty of his fate and frustration as a result of increasing delays in the hearing of his appeal. The applicant left the amount to be awarded to the discretion of the Court.
37. The Government contended that the applicant had not suffered any damage as a result of the delay in hearing his appeal since his conviction was upheld by the appellate court. The fact that his death sentence was commuted to life imprisonment did not make any difference as it was widely known that a death penalty had not been carried out in Greece since 1975.
38. The Delegate of the Commission did not comment on this claim.
39. In the circumstances of the case, the Court considers that the present judgment constitutes in itself sufficient just satisfaction.
# Costs and expenses
40. The applicant requested the Court to award him the sum of 20,032.60 pounds sterling (GBP) inclusive of value-added tax in respect of legal fees which he incurred in the Strasbourg proceedings.
41. The Government submitted that only expenses that have been justified and were absolutely necessary should be awarded to the applicant. The Delegate of the Commission did not comment on this claim.
42. The Court, deciding on an equitable basis, awards the applicant the sum of GBP 15,000 less the sum of 14,549 French francs received by way of legal aid from the Council of Europe.
# Default interest
43. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum.
for these reasons, the court unanimously
1. Holds that Article 6 § 1 of the Convention has been violated;
2. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any alleged non-pecuniary damage;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, 15,000 (fifteen thousand) pounds sterling in respect of costs and expenses less 14,549 (fourteen thousand five hundred and forty-nine) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment;
(b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement.
Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 September 1998.
Signed: Thor Vilhjalmsson
President
Signed: Herbert Petzold
Registrar
1. This summary by the registry does not bind the Court.
Notes by the Registrar
1. The case is numbered 109/1997/893/1105. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
1. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.
Hudoc reference REF00001693
Document type Judgment (Merits and just satisfaction)
Title CASE OF PROTOPAPA AND MARANGOU v. GREECE
Application number 00038971/97
Date 28/03/2000
Respondent Greece
Conclusion Violation of Art. 6-1 ; Non-pecuniary damage - financial award ; Costs and expenses partial award - domestic proceedings
Keywords ADMINISTRATIVE PROCEEDINGS ; REASONABLE TIME
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EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF PROTOPAPA AND MARANGOU v. GREECE
(Application no. 38971/97)
JUDGMENT
STRASBOURG
28 March 2000
FINAL
28/06/2000
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.
In the case of Protopapa and Marangou v. Greece,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr C. Rozakis,
Mr L. Loucaides,
Mr P. Kuris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dolle, Section Registrar,
Having deliberated in private on 24 August 1999 and 14 March 2000,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 38971/97) against Greece lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Greek nationals, Mrs Patra Protopapa and Mrs Anna Marangou (“the applicants”), on 17 October 1997.
2. The applicants were represented by Mr K. Horomides, a lawyer practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent, Mr A. Komissopoulos, President of the State Legal Council.
3. The applicants alleged that they did not have a hearing within a reasonable time in the proceedings they instituted before the Council of State on 16 August 1993.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber called upon to examine the case (Article 27 § 1 of the Convention) was constituted according to the provision of Rule 26 § 1 of the Rules of Court.
6. By a decision of 24 August 1999, the Chamber declared the application partly admissible.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicants are the owners of a 50% share in a plot of land situated in Rhodes in the area of Ayios Stephanos (Monte Smith).
8. On 8 November 1971 the Ministers of Finance and Culture and Sciences decided to expropriate the plot in question considering that it was of archaeological interest.
9. The owner of the other 50% share accepted the expropriation and received compensation.
10. On 19 October 1988 the applicants requested the two Ministers to revoke the above-mentioned expropriation decision because, as they alleged, the property was not situated within the archaeological zone of Ayios Stephanos (Monte Smith) and because the expropriation of their share had not been completed within the time-limit provided for in domestic law. Having received no reply within the time-limit provided for in domestic law, on 2 February 1989 the applicants lodged an application for judicial review (etisi akiroseos) before the Council of State (Simvulio tis Epikratias) challenging the implied refusal of the Ministers to revoke their decision of 8 January 1971.
11. On 16 November 1989 the Ministers of Finance and Culture and Sciences adopted another decision expropriating the applicant’s share in the plot of land.
12. The applicant's judicial review application of 2 February 1989 - which concerned the first ministerial decision of 1971 - was set for hearing by the Fourth Section of the Council of State on 6 November 1990. However, on that date the hearing was adjourned until 22 October 1991. Prior to that date, on 2 October 1991, the applicants filed a document with additional arguments (dikografo prostheton logon akirosis). On 22 October 1991 the hearing was again adjourned until 17 March 1992. On 17 March 1992 the Fourth Section decided to transfer the case to the Fifth Section. On 5 May 1993 the Fifth Section decided to adjourn the examination of the case until 3 November 1993.
13. Between September 1992 and April 1993 the lawyers were on strike.
14. On 10 May 1993 the applicants requested the Ministers of Finance and Culture and Sciences to revoke the expropriation decision of 1971, which had been confirmed in 1989. Having received no reply within the time-limit provided for in domestic law, on 16 August 1993 the applicants lodged a second application for judicial review before the Council of State challenging the second implied refusal of the two Ministers. The applicants requested that their second judicial review application be heard by the Fifth Section, together with the first, on 3 November 1993.
15. However, on that date the Fifth Section of the Council of State decided to adjourn the hearing of both judicial review applications. Further adjournments were ordered on 9 February 1994, 23 March 1994, 6 April 1994 and 1 June 1994.
16. Then the applicants withdrew their first application for judicial review. Their second judicial review application was eventually heard on 22 June 1994. No decision has been rendered as yet.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicants complained that the length of the proceedings they instituted before the Council of State on 16 August 1993 gave rise to a violation of Article 6 § 1 of the Convention, which in so far as relevant provides:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time …”.
18. The applicants submitted that their case was not complex. The problems arising out of the prior expropriation of half of the plot were of a purely legal nature and could have been solved quickly. The lawyers’ strike need not have delayed the proceedings significantly. The Council of State should have taken advantage of the strike to clear its backlog. In any event, the strike could not justify a five-year delay in the delivery of a judgment. The applicants’ lawyer always protested against the adjournments.
19. The Government submitted that the applicants’ case was complex because it concerned the expropriation of a 50% share of a plot of land. The owner of the other half had already accepted the expropriation. Moreover, the applicants’ case was heard immediately after the end of the lawyers’ strike. However, the strike, for which the Government were in any event not responsible, had created a backlog. Hence the delay in the delivery of a judgment.
20. The Court recalls that in its admissibility decision it found that the proceedings in question involved a determination of the applicants’ civil rights and obligations within the meaning of Article 6 § 1 of the Convention.
21. The Court notes that the proceedings began on 16 August 1993 when the applicants lodged their application for judicial review and are still pending. They have, therefore, lasted nearly six years and seven months.
22. The Court 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 the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).
23. The Court considers that, on the one hand, the case was not particularly complex and the applicants did not cause any delays. On the other hand, the Council of State decided to adjourn the examination of the case on several occasions, i.e. on 3 November 1993, 9 February 1994, 23 March 1994, 6 April 1994 and 1 June 1994, before hearing it on 22 June 1994. The Government have not provided any explanation for the seven-month delay that resulted from these adjournments. Moreover, the Court notes that the lawyers’ strike to which both parties referred had ended in April 1993, i.e. before the institution of the proceedings in question.
24. The Court also notes that there was a period of inactivity between the hearing of the applicant’s judicial review application and today which has exceeded five years and eight months. The only explanation offered by the Government for this period of inactivity is the Council of State’s case-load.
25. However, the Court does not find this explanation convincing. According to its case-law, 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 (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, § 17). In the light of all the above, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement.
26. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
28. The applicants claimed GRD 25,000,000 each for non-pecuniary damage.
29. The Government found this claim excessive. They considered that a finding of violation by the Court could constitute in itself adequate just satisfaction. In the alternative, they argued that GRD 750,000 would be a reasonable sum.
30. The Court considers that the applicants must have suffered some non-pecuniary damage as a result of the violation of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time. Making its assessment on an equitable basis, the Court awards each applicant GRD 2,000,000 for non-pecuniary damage.
B. Costs and expenses
31. The applicants claimed GRD 4,000,000 for costs and expenses for the domestic proceedings.
32. The Government did not make any comments.
33. The Court, making its assessment on an equitable basis, awards each applicant GRD 500,000 for costs and expenses.
C. Default interest
24. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1 of the Convention;
2. Holds
(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
- 2,000,000 (two million) Greek drachmas in respect of non-pecuniary damage,
- 500,000 (five hundred thousand) Greek drachmas for costs and expenses;
(b) that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;
3. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 28 March 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dolle N. Bratza
Registrar President
Hudoc reference REF00001432
Document type Judgment (Merits and just satisfaction)
Title CASE OF ACADEMY TRADING LTD AND OTHERS v. GREECE
Application number 00030342/96
Date 04/04/2000
Respondent Greece
Conclusion No violation of Art. 6-1 with regard to impartiality ; Violation of Art. 6-1 with regard to the length of the proceedings ; Non-pecuniary damage - finding of violation sufficient ; Costs and expenses partial award - Convention proceedings
Keywords IMPARTIAL TRIBUNAL ; REASONABLE TIME ; CIVIL PROCEEDINGS
------------------------------------------------
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ACADEMY TRADING LTD AND OTHERS v. GREECE
(Application no. 30342/96)
JUDGMENT
STRASBOURG
4 April 2000
This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.
In the case of Academy Trading Ltd. and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mrs E. Palm, President,
Mr J. Casadevall,
Mr L. Ferrari Bravo,
Mr B. Zupancic,
Mrs W. Thomassen,
Mr T. Pantiru, Judges,
Mr G. Stavropoulos, ad hoc judge,
and Mr M.O'Boyle, Section Registrar,
Having deliberated in private on 19 October 1999 and on 21 March 2000,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 2 November 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 30342/96) against the Hellenic Republic lodged with the Commission under former Article 25 by six shipping companies incorporated under the laws of the Republic of Liberia, Academy Trading Ltd., Intercontinental Maritime Ltd., Aaron Maritime Ltd., Evie Navigation Co. Ltd., T.C. Trading Company Ltd. and Andros Trading Ltd. The applicants are represented by Mr Nicholas Skorinis, a lawyer practising in Piraeus (Greece). The Government of Greece are represented by their Agent, Mr Aristomenis Komissopoulos, President of the State Legal Council.
The Commission's request referred to former Articles 44 and 48 and to the declaration whereby Greece recognised the compulsory jurisdiction of the Court (former Article 46). The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.
2. In accordance with the provisions of Article 5 § 4 of Protocol no. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, a Panel of the Grand Chamber decided on 14 January 1999 that the case should be dealt with by a Chamber constituted within one of the Sections of the Court.
3. In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the First Section. The Chamber ultimately constituted within the Section was composed of Mrs E. Palm, President, Mr J. Casadevall, Mr L. Ferrari Bravo, Mr B. Zupancic, Mrs W. Thomassen and Mr T. Pantiru, Judges.
Subsequently Mr Rozakis, the judge elected in respect of Greece, who had taken part in the Commission's examination of the case, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr C. Yeraris to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Subsequently, Mr C. Yeraris resigned and the Government appointed Mr G. Stavropoulos to sit as an ad hoc judge.
4. On 22 June 1999 the Chamber decided to hold a hearing in the case. The hearing took place in public in the Human Rights Building, Strasbourg, on 19 October 1999. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Kanellopoulos, Senior Adviser, State Legal Council, Delegate of the Agent,
Ms V. Pelekou, Legal Assistant, Adviser;
(b) for the applicants
Mr N. Scorinis, of the Piraeus Bar, Counsel,
Ms A. Bagouli, of the Piraeus Bar, Adviser,
Mr G. Chimples, President of all the applicant companies.
The Court heard addresses by Mr Scorinis and Mr Kanellopoulos.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. In 1977 Citibank, a major provider of loan capital to the Greek shipping community, granted a $ 14.8 million loan to a group of companies under the ownership of G.T., a Greek-American shipowner. The applicants, also under the ownership of G.T., were among the guarantors of the loan.
6. On 21 January 1982 the applicants brought an action for damages against Citibank and three Greek members of its senior management before the Athens First Instance Civil Court (Polymeles Pr*todikeio). The applicants argued that because of a shipping crisis they had been unable to meet repayment instalments on the loan and that in 1979 they had been obliged to sell two ships at below their insured and actual value to another client of the bank, who had been given generous financing terms in order to take over the vessels. Eventually other vessels in the fleet were put under the same management prior to their being sold to the management company. The applicants alleged therefore that Citibank had acted contrary to business morality under the Greek Civil Code.
7. On 1 November 1982, by decision no. 14803/1982, the First Instance Civil Court ordered the parties to submit further evidence.
8. On 20 November 1987, by decision no. 8027/1987, the First Instance Civil Court dismissed the applicants' action as being ill-founded.
9. On 29 January 1988 the applicants lodged an appeal with the Athens Court of Appeal (Epheteio).
10. On 31 January 1989 the Court of Appeal declared the appeal admissible without prejudging the merits and ordered a new hearing in order to submit further questions to the parties. The new hearing was held on 15 February 1990.
11. By decision no. 5025/1990, the Court of Appeal unanimously overturned the decision of the First Instance Civil Court and granted the applicants' claim. In particular, the Court established that Citibank, at a time of shipping crisis, had rejected a request by G.T. for an extension of time to pay off his debt and for a small amount of capital which would have enabled him to tackle urgent cash problems, despite the fact that he had already repaid 63.25% of the loan granted to him and that he had never been late in making payments. As a result, G.T.'s business went bankrupt and the bank took over the management of his ships. The vessels were subsequently sold and the bank provided the new owner with the credit facilities it had previously refused to G.T.
12. Therefore, the Court considered that it was “against morality for a bank to exploit its dominant position vis-a-vis its counterpart during a period of financial crisis by cruelly prosecuting it instead of extending financial facilities which are customary in banking transactions during such periods”. The Court awarded the applicants $ 7.75 million plus interest at 25 % per year back-dated from 20 February 1982.
13. The above judgment created a stir in the local shipping community. Several publications appeared in the local and international shipping press, stressing the impact that the judgment would have on future ship credits. A number of cases started to be prepared against banks. Citibank, which had already appealed in cassation (avaires*) on 21 May 1990, threatened to withdraw from the Greek market altogether if the Court of Cassation (Areios Pagos) upheld the judgment of the Court of Appeal.
14. On 29 May 1991, by decision no. 925/1991, the First Chamber of the Court of Cassation overturned the judgment of the Court of Appeal on the ground that the bank had not acted contrary to business morality and that the impugned judgment did not give sufficient reasons. The case was then referred to the Fourth Chamber for further examination.
15. Following deliberations on 14 February 1992, the Fourth Chamber, by decision no. 1154/1992, ordered the parties to appear in person before it and to give further explanations about the case. The hearing was held on 11 December 1992. With the exception of one judge who had also participated in the deliberations of 14 February 1992 and was the rapporteur in the case, the Fourth Chamber sat in a different composition.
16. On 30 June 1993, i.e. six months after the hearing of 11 December 1992, one of the judges participating in that hearing retired. Under Greek law this meant that if the Chamber had not reached a decision by that date it could no longer deliberate but should hear the case again in a different composition. However, no actions were taken at that stage, which led the applicants to believe that the decision had already been taken before the retirement of the judge and that they had to await the delivery of the judgment.
17. 198 cases were heard after the hearing on the applicants' case and before the retirement of the judge on 30 June 1993. In 74 of these cases the judgments were delivered before 30 June 1993. In the course of the judicial vacations (i.e. from 1 July to 15 September 1993), the President of the Fourth Chamber delivered 95 more judgments. The judgments in the remaining 29 cases were delivered in the course of autumn 1993.
18. On 7 November 1993 the applicants inserted an open letter in a Greek newspaper. In their publication, entitled “Open letter to the Fourth Chamber of the Court of Cassation”, the applicants questioned the reasons for the delay taken by the Chamber in delivering its judgment. Having received no answer, the applicants sent a similar letter on 12 December 1993 to the Minister of Justice and the President and Public Prosecutor of the Court of Cassation. They again received no answer.
19. On 26 January 1994, the President of the Third Chamber (who had until summer 1993 been President of the Fourth Chamber) returned the file of the case to the Secretariat of the Fourth Chamber, accompanied by a hand-written note which read as follows: “To be further discussed, in accordance with Article 307 of the Code of Civil Procedure (since it was ascertained, after the last report, that there is a need for further deliberation, which is not feasible due to the retirement of one of the members of the Court).”
20. On 20 May 1994 the new hearing was held. The Fourth Chamber was composed of five judges. The first had participated in the deliberations of 14 February 1992 and the second in both previous compositions as rapporteur. The other three members heard the case for the first time. One of them, a junior judge, was designated as the new rapporteur.
21. On 30 June 1995, by decision No. 1198/1995, the Court of Cassation dismissed the appeal, lodged by the applicants against decision no. 8027/1987 of the Athens First Instance Civil Court, on the ground that it was ill-founded. In his dissenting opinion, the judge who was initially the rapporteur in the case expressed the view that Citibank had not acted in good faith and that the applicants' appeal should therefore be upheld.
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. Under Article 300 of the Code of Civil Procedure a decision is taken by the same judges who participated in the hearing of the case.
23. Under Article 307 of the Code of Civil Procedure if, after the hearing of a case, a decision cannot be taken for any reason (namely the death, resignation or removal from office of a judge who has participated in the hearing) the case must be reheard.
PROCEEDINGS BEFORE THE COMMISSION
24. Academy Trading Ltd., Intercontinental Maritime Ltd., Aaron Maritime Ltd., Evie Navigation Co. Ltd., T.C. Trading Company Ltd. and Andros Trading Ltd. applied to the Commission on 30 November 1995. They alleged that they had not had a fair hearing before an impartial tribunal, and that their case had not been heard within a reasonable time.
25. The Commission declared the application (no. 30342/96) admissible on 26 May 1997. In its report of 9 July 1998 (former Article 31 of the Convention), it expressed the opinion that there had not been a violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings before an impartial tribunal (twenty-four votes to six), and that there had been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings (unanimously). The full text of the Commission's opinion and of the separate dissenting opinions contained in the report is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
26. At the hearing on 19 October 1999 the Government invited the Court to “dismiss the application as inadmissible and ungrounded on the merits”.
27. On the same occasion the applicants reiterated their request to the Court to find a violation of Article 6 on both grounds and to make an award of just satisfaction under Article 41.
__________
1. Note by the Registrar. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission's report is obtainable from the Registry.
AS TO THE LAW
I. alleged violation of article 6 § 1 of THE CONVENTION
28. The applicants alleged two violations of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time by an ... impartial tribunal...”
Firstly, they had not been given a fair hearing before an impartial tribunal. Secondly, the proceedings had taken more than a “reasonable time”.
29. The Government disputed these assertions.
30. As regards the fairness of the proceedings, the Commission did not share the applicants' views and considered that the circumstances invoked by them could not justify their apprehensions as to the impartiality of the Court of Cassation. As regards the length of the proceedings, the Commission found that there had been several delays attributable to the domestic courts and therefore considered that the proceedings in question had failed to comply with the “reasonable time” requirement.
A. Fair hearing before an impartial tribunal
31. The applicants' apprehension about a lack of impartiality was based on a number of facts which, in their eyes, proved that they had not received a fair hearing. In particular, they submitted that the Fourth Chamber of the Court of Cassation - which had heard their case on 11 December 1992 - had already reached a decision by the time one of its members retired, and that it was the President of the Chamber who had decided on his own initiative not to deliver it but to order a rehearing before another composition instead.
32. The applicants first referred to the fact that, even assuming that the Fourth Chamber of the Court of Cassation had not reached a decision by the time one of its members retired, there were no particular reasons why it should have taken six months to find that the Chamber would have to hold a new hearing. On the contrary, the Chamber could have automatically ascertained this fact the very same day of the judge's retirement.
33. Secondly, the applicants referred to the fact that this decision for a new hearing was taken by a judge who was no longer a member of the Fourth Chamber, but a member of the Third Chamber. This action was illegal and inadmissible since the judge in question was no longer entitled to deal with their case.
34. Thirdly, the applicants referred to the fact that a new rapporteur had been designated for the last hearing before the Court of Cassation, despite the fact that the previous rapporteur was a senior judge and the only judge who had participated in all previous hearings. They allege that this change was made because the initial rapporteur would have proposed to uphold the judgment of the Athens Court of Appeal granting their claim, as was clearly demonstrated from his dissenting opinion inserted in the text of the final decision.
35. The applicants further referred to the fact that after the hearing on their case and before the judge's retirement on 30 June 1993, the Fourth Chamber had heard another 198 cases. Judgements on all these cases were delivered by autumn 1993 the latest. The applicants found it suspicious that it was only their case which was put aside.
36. The applicants submitted that all the above facts were not fortuitous events beyond the judges' control, but conscious acts or omissions aimed at concealing the fact that a decision granting their claims had been reached; thus, the Chamber had been given the opportunity to reach a new decision which was favourable to their opponent.
37. In that connection, the applicants referred to the threats expressed in public by the defendant - Citibank - concerning the closing of the bank's branches in Greece if the Court of Cassation did not deliver a judgment in its favour. The applicants alleged that Citibank had the largest branch network of any foreign bank in Greece and was one of the main lenders to the country's shipowners; its threat to withdraw from Greece had to be taken seriously. It was therefore inevitable that the Court of Cassation would be influenced and show partiality in favour of the defendant bank.
38. Finally the applicants noted that at the time when their case was pending before the Fourth Chamber, the daughter of the President of the Chamber and the daughter of another judge were employed in companies belonging to a Greek businessman who was a close friend of the head of Citibank. According to the applicants this dependence proved that their case was not tried by impartial and unbiased judges.
39. The Government argued that the note written by the President of the Third Chamber could not be considered a decision of the Court of Cassation to hold a new hearing, but constituted a mere internal note, addressed to the court's Secretariat, and that it was within its author's competence to oversee the smooth operation of the Court of Cassation.
40. Furthermore, the Government submitted that the alleged delay in drafting this note had not infringed the applicants' right to a fair trial, nor did it raise any doubts as to the impartiality of the Court of Cassation. This delay could be explained by the fact that the judge's retirement was followed by the judicial vacation period, from 1 July to 15 September, during which the courts dealt only with extremely urgent cases. It could be explained by the fact that the retirement of one judge was also followed by the appointment of a new president of the Fourth Chamber, which gave rise to several issues concerning the take-over of the case-files by his successor. The considerable workload of the Court of Cassation should also be taken into account.
41. The Government also asserted that the fact that this note had been written by a judge who was no longer a member of the Fourth Chamber, but still the President of that Chamber at the time of the hearing of the case and also when one of its judges retired, had not infringed the applicants' right to a fair trial; nor did it raise any doubts as to the impartiality of the Court of Cassation. The judge in question was competent to ascertain facts that took place during his term of office.
42. As regards the change of rapporteur in the case, the Government argued that it followed a well-established practice of the Court of Cassation and was necessary, in order to give to another member of the Fourth Chamber time to study the case thoroughly, so that the truth could be established through an exchange of views on the questions raised by the case. In any event, the former rapporteur had participated as a full member in the new composition of the Fourth Chamber and had been able to express his opinion freely.
43. The Court recalls that there are two aspects to the requirement of impartiality in Article 6 § 1. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, inter alia, the Fey v. Austria judgment of 24 February 1993, Series A no. 255, p. 12, § 28).
44. As to the subjective test, the Court notes that no evidence has been produced in the present case which might suggest bias on the part of the judges of the Court of Cassation.
45. Under the objective test, it must be determined whether, quite apart from the judges' personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings (ibid., § 30).
46. In the present case the Court considers that the facts complained of - namely the delay in deciding that the case had to be reheard, the intervention in the proceedings of the former President of the Fourth Chamber and the change of rapporteur at the last hearing - while they inevitably raised some questions in the mind of the applicants' representatives, do not provide a legitimate reason to doubt the impartiality of the Court of Cassation under the objective test. The applicants have failed to show that any of these matters involved any illegality or amounted to a radical or unusual departure from the normal internal practice of the Court of Cassation. In particular, the Court is satisfied that the Government's answers, as set out in paragraphs 39-42 above, to the specific matters raised by the applicants provide a plausible explanation for the procedures followed. Finally the Court considers that the fact that the daughters of two judges were working for a Greek businessman who is allegedly a friend of Citibank's head does not provide grounds for calling into question the impartiality of the Fourth Chamber.
Accordingly, the above circumstances cannot justify the applicants' apprehension about the impartiality of the Court of Cassation and the fairness of the proceedings before it.
47. In view of the above, the Court concludes that the allegation concerning the partiality of the Court of Cassation is unsubstantiated.
Consequently, in the present case there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings before an impartial tribunal.
B. Length of the proceedings
1. Period to be taken into consideration
48. The proceedings lasted from 21 January 1982 to 30 June 1995. The period to be taken into consideration begins on 20 November 1985, when the recognition by Greece of the right of individual petition took effect; however, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at that time (see the Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53).
Therefore, the period to be examined by the Court lasted nine years, seven months and ten days.
2. Reasonableness of the length of the proceedings
49. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Cazenave de la Roche v. France judgment of 9 June 1998, Reports 1998-III, p. 1327, § 47).
50. The Government submitted that the length of the proceedings had satisfied that requirement, regard being had, in particular, to the complexity of the case.
51. The Court considers that the subject matter of the case before the domestic courts was undoubtedly complex. On the other hand, the Court can find nothing to suggest that the applicants were responsible for prolonging the proceedings.
52. The Court considers that the various periods of inactivity attributable to the State, in particular the ones from 11 December 1992 to 20 May 1994 and from the latter date to 30 June 1995, failed to satisfy the “reasonable time” requirement.
53. Having regard also to the total duration of the proceedings, the Court concludes that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
55. The applicants presented their claims under Article 41 of the Convention primarily as regards their right to a fair hearing before an impartial tribunal. They made an overall claim for GRD 25,000,000 per applicant in respect of pecuniary and non-pecuniary damage without, however, indicating which part should be attributed to the complaint concerning the length of the proceedings.
56. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction. Accordingly, it does not make any award.
B. Costs and expenses
57. The applicants seek payment of GRD 29,208,000 for lawyer's fees and sundry costs incurred in the proceedings before the Commission and the Court.
58. The Government said that they were ready to pay the applicants' costs and expenses before the Convention organs, provided that they had actually been incurred and were necessary and reasonable.
59. Bearing in mind that it has found a violation of Article 6 § 1 of the Convention only as regards the length of the proceedings, the Court, ruling on an equitable basis as required by Article 41 of the Convention, awards the applicants a total of GRD 3,000,000 for costs and expenses.
C. Default interest
60. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT
1. Holds by four votes to three that there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings before an impartial tribunal;
2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings;
3. Holds by four votes to three that the finding of a violation constitutes in itself sufficient just satisfaction;
4. Holds unanimously
(a) that the respondent State is to pay the applicants, within three months, a total of 3,000,000 (three million) drachmas for costs and expenses;
(b) that simple interest at an annual rate of 6% shall be payable on this sum from the expiry of the above-mentioned three months until settlement;
5. Dismisses unanimously the remainder of the applicants' claims for just satisfaction.
Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 April 2000.
Michael O'Boyle Elisabeth Palm
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinion is annexed to this judgment:
- partly dissenting opinion of Mr Casadevall joined by Mr Zupancic and Mr Pantiru.
E. P.
M. O.B.
PARTLY DISSENTING OPINION OF MR CASADEVALL joined by judges ZUPANCIC AND PANTIRU
1. I voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention on account of the length of the proceedings. However, I do not share the majority's opinion on the applicant's complaint that it was denied a fair hearing before an impartial tribunal.
2. In assessing the impartiality issue from an objective viewpoint (there was no suggestion of subjective bias), the Court had to apply the principle it has established and consistently followed that “even appearances may be of a certain importance” or, in other words, “justice must not only be done, it must also be seen to be done”. It was precisely from that angle that the instant case had to be examined.
3. I am able to accept that, taken individually and objectively1, the incidents which occurred in the proceedings before the domestic courts were not so serious as to be capable of compromising the impartiality of a judge or a court.
On the other hand, when all these factors are added together, one can understand the applicants' legitimate fears and conclude that they did not have a fair hearing. It must also be noted that, although their action was dismissed at first instance, the applicants succeeded before the Athens Court of Appeal; a great deal was at stake for the parties to the dispute; the case was of substantial interest to the local shipping community since there were a number of similar cases relating to shipping credits2; and Citibank had publicly announced its intention to withdraw from the Greek market if the Court of Cassation upheld the Court of Appeal's decision3. Although the length of the proceedings itself constituted a breach of Article 6, it was plainly a direct consequence of the other incidents – “errors” or “procedural defects”, according to the Commission4 – which occurred throughout the proceedings such that the applicants no longer had the confidence which courts should inspire in the public.
_______________
1. Summary: Six-months' delay in deciding to hold a rehearing, the court having failed to reach a decision after the hearing of 11 December 1992. Decision taken by a judge who was not a member of the Fourth Chamber but was now the President of the Third Chamber. 198 cases were considered after the hearing of the applicant's case (before the departure of the retiring judge) and the decisions in them were delivered before the end of the year.
Change of rapporteur before the final hearing, despite the fact that the former rapporteur was the only member of the Chamber to have sat on the case in both the previous compositions.
2. Paragraph 25 of the Commission's report.
3. Paragraph 38 of the judgment.
4. Paragraph 50 of the Commission's report.
In my opinion, the Government have not provided any satisfactory explanation justifying the number of incidents in the instant case.
4. Overall, the incidents and the surrounding circumstances were, to my mind, sufficient for the applicant's fears as to the impartiality of the fourth Chamber of the Athens Court of Cassation to be considered to have been objectively justified.
Hudoc reference REF00001458
Document type Judgment (Merits and just satisfaction)
Title CASE OF THLIMMENOS v. GREECE
Application number 00034369/97
Date 06/04/2000
Respondent Greece
Conclusion Preliminary objection rejected (non-exhaustion) ; Preliminary objection rejected (estoppel) ; Violation of Art. 14+9 ; Not necessary to examine Art. 9 ; Violation of Art. 6-1 ; Pecuniary damage - claim rejected ; Non-pecuniary damage - financial award ; Costs and expenses partial award
Published in Reports of Judgments and Decisions 2000-IV
Keywords FREEDOM OF RELIGION ; DISCRIMINATION ; OBJECTIVE AND REASONABLE JUSTIFICATION ; PROPORTIONALITY ; OTHER STATUS ; RELIGION ; REASONABLE TIME ; CIVIL PROCEEDINGS ; CIVIL RIGHTS AND OBLIGATIONS ; EXHAUSTION OF DOMESTIC REMEDIES ; EFFECTIVE DOMESTIC REMEDY
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EUROPEAN COURT OF HUMAN RIGHTS
CASE OF THLIMMENOS v. GREECE
(Application no. 34369/97)
JUDGMENT
STRASBOURG
6 April 2000
In the case of Thlimmenos v. Greece,
The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mrs E. Palm,
Mr L. Ferrari Bravo,
Mr L. Caflisch,
Mr J.-P. Costa,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr M. Fischbach,
Mr B. Zupancic,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs W. Thomassen,
Mrs M. Tsatsa-Nikolovska,
Mr T. Pantiru,
Mr E. Levits,
Mr K. Traja,
Mr G. Koumantos, ad hoc judge,
and also of Mrs M. de Boer-Buquicchio, Deputy Registrar,
Having deliberated in private on 1 December 1999 and 15 March 2000,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)1, by the European Commission of Human Rights (“the Commission”) on 22 March 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).
2. The case originated in an application (no. 34369/97) against the Hellenic Republic lodged with the Commission under former Article 25 of the Convention by a Greek national, Mr Iakovos Thlimmenos (“the applicant”), on 18 December 1996. The applicant alleged that the refusal of the authorities to appoint him to a post of chartered accountant on account of his criminal conviction for disobeying, because of his religious beliefs, the order to wear the military uniform was in breach of Articles 9 and 14 of the Convention and that the proceedings he had instituted in the Supreme Administrative Court in this connection were not conducted in accordance with Article 6 § 1 of the Convention. In his observations submitted on 20 October 1997 in reply to the observations of the Greek Government (“the Government”) on the admissibility and merits of the case, he also complained of a violation of Article 1 of Protocol No. 1.
3. The Commission declared the application partly admissible on 12 January 1998. In its report of 4 December 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 9 of the Convention taken in conjunction with Article 14 (twenty-two votes to six); that it was not necessary to examine whether there had been a violation of Article 9 taken on its own (twenty-one votes to seven); and that there had been a violation of Article 6 § 1 (unanimously)1.
4. On 31 March 1999 a panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). Mr C. Rozakis, the judge elected in respect of Greece, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Mr G. Koumantos to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
5. The applicant and the Government each filed a memorial.
6. A hearing took place in public in the Human Rights Building, Strasbourg, on 1 December 1999.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Legal Adviser, State Legal Council, Delegate of the Agent,
Mr K. Georgiadis, Legal Assistant, State Legal Council, Counsel;
(b) for the applicant
Mr N. Alivizatos, of the Athens Bar, Counsel.
The Court heard addresses by Mr Alivizatos and Mr Georgiadis.
THE FACTS
I. the circumstances of the case
A. The applicant's conviction for insubordination
7. On 9 December 1983 the Athens Permanent Army Tribunal (Diarkes Stratodikio), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day.
B. The refusal to appoint the applicant to a chartered accountant's post
8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime (kakuryima).
C. The proceedings before the Supreme Administrative Court
9. On 8 May 1989 the applicant seised the Supreme Administrative Court (Simvulio Epikratias) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence.
10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed.
11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues.
12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed.
13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence.
II. relevant domestic law
A. Appointment to a chartered accountant's post
14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece.
15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant.
16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service.
17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd.
B. The criminal offence of insubordination
18. Article 70 of the Military Criminal Code in force until 1995 provided:
“A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished –
(a) if the act is committed in front of the enemy or armed insurgents, with death;
(b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and
(c) in all other circumstances, with imprisonment between six months and two years.”
19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force.
20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life.
21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes (kakuryimata). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours (plimmelimata).
22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour.
C. The right to conscientious objection to military service
23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years.
24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record.
25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides:
“Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...”
THE LAW
I. SCOPE OF THE CASE
26. In his original application to the Commission the applicant had complained under Articles 9 and 14 of the Convention about the failure of the authorities to appoint him to a post of chartered accountant and under Article 6 § 1 about the proceedings he had instituted in this connection. Only in his observations in reply to the Government's observations on the admissibility and merits of the application did the applicant also complain of a violation of Article 1 of Protocol No. 1. The Commission declared the latter complaint inadmissible on the ground that it had not been submitted within the six-month time-limit provided by the Convention.
27. In his memorial before the Court the applicant contended that the Court was competent to examine his complaint under Article 1 of Protocol No. 1. Although this complaint had not been expressly raised in the application form, the facts underlying it had been set out therein. The Convention organs were free to give them the proper legal qualification.
28. The Court recalls that the scope of its jurisdiction is determined by the Commission's decision declaring the originating application admissible (see Surek v. Turkey (no. 1) [GC], no. 26682/95, § 40, ECHR 1999-IV). Moreover, it considers, as the Commission did, that the complaint under Article 1 of Protocol No. 1 was separate from the complaints declared admissible. It follows that the Court has no jurisdiction to entertain this complaint.
II. The Government's Preliminary OBJeCtion
29. The Government argued that the applicant, by using the procedure provided by section 23(1) and (4) of Law no. 2510/1997, could have avoided the consequences of his conviction. They also submitted that he could have applied for a pardon under Article 47 § 1 of the Constitution. However, the Government accepted that, even if the applicant had been recognised as a conscientious objector under Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered as a result of his conviction.
30. The applicant claimed that he had not been aware of the three-month time-limit in section 23(1) and (4) of Law no. 2510/1997 and had missed the deadline. In any event, the above provisions were “obscure” and only few conscientious objectors had succeeded in having their past convictions expunged from their criminal records.
31. The Court notes that, even if the applicant had not missed the deadline in section 23(1) and (4) of Law no. 2510/1997, his claim that he could not serve in the armed forces because of his religious beliefs would have been examined by a commission, which would have advised the Minister of National Defence on whether or not he should be recognised as a conscientious objector. This commission and the Minister would not have been obliged to grant the applicant's claim since they, at least to a certain degree, retained discretionary powers (see paragraphs 24 and 25 above). Moreover, it was accepted by the parties that, even if the applicant had obtained the removal of his conviction from his criminal record pursuant to section 23(1) and (4) of Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered until then as a result of his conviction. For the same reason the applicant could not have been certain that his request for a pardon would have been granted and, even if it had, the applicant could not have obtained reparation.
32. In any event, the Court notes that, in so far as the Government can be deemed to raise a preliminary objection concerning the applicant's status as a victim within the meaning of Article 34 of the Convention, this objection had not been put forward when the admissibility of the application was being considered by the Commission. There was nothing preventing the Government from raising it at that stage of the proceedings, since Law no. 2510/1997 had been enacted prior to the Commission's admissibility decision. The Court therefore holds that the Government is estopped from raising this preliminary objection and dismisses it (see Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II).
III. ALLEGED VIOLATION oF ARTICLE 14 of the convention taken IN CONJUNCTION WITH ARTICLE 9
33. The Court notes that the applicant did not complain about his initial conviction for insubordination. The applicant complained that the law excluding persons convicted of a serious crime from appointment to a chartered accountant's post did not distinguish between persons convicted as a result of their religious beliefs and persons convicted on other grounds. The applicant invoked Article 14 of the Convention taken in conjunction with Article 9, which provide:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. Arguments before the Court
34. The applicant submitted that his non-appointment to a post of chartered accountant was directly linked to the manifestation of his religious beliefs and fell within the ambit of Article 9 of the Convention. He pointed out in this connection that he had not been appointed because he had refused to serve in the armed forces; by refusing to do so, he had manifested his religious beliefs as a Jehovah's Witness. The applicant further argued that it could not serve any useful purpose to exclude someone from the profession of chartered accountants for having refused to serve in the armed forces on religious grounds. In the applicant's view, the law should not have excluded every person convicted of a serious crime. The legitimacy of the exclusion depended on the nature of the post and of the offence, including the motives of the offender, the time elapsed since the offence and the offender's conduct during that time. Seen in this light, the authorities' failure to appoint the applicant was not necessary. The class of persons to which the applicant belonged, namely male Jehovah's Witnesses whose religion involved compelling reasons for refusing to serve in the armed forces, was different from the class of most other criminal offenders. The Government's failure to take account of this difference amounted to discrimination not tolerated by Article 14 of the Convention taken in conjunction with Article 9.
35. The Government argued that Article 14 of the Convention did not apply because the facts of the case did not fall within the ambit of Article 9. The authorities that refused to appoint the applicant a chartered accountant had no option but to apply a rule that excluded all persons convicted of a serious crime from such a post. The authorities could not inquire into the reasons that had led to a person's conviction. Because of its generality, the law in question was neutral. Moreover, it served the public interest. A person convicted of a serious offence could not be appointed to the civil service and, by extension, to a post of chartered accountant. This prohibition had to be absolute and no distinction could be made on a case-by-case basis. States had a wide margin of appreciation in the characterisation of criminal offences as serious crimes or otherwise. The applicant had committed a serious offence by refusing to perform unarmed military service at a time of general mobilisation because he had tried to avoid a very important obligation towards society and the State, linked with the defence, safety and independence of the country. As a result, the sanction was not disproportionate.
36. The Government also stressed that the Court had no competence to examine the applicant's initial conviction. In any event, this had nothing to do with his religious beliefs. The obligation to do military service applied to all Greek males without any exceptions on grounds of religion or conscience. Moreover, the applicant had been convicted of insubordination. Discipline in the army could not be made to depend on whether a soldier agreed with the orders given to him.
37. In the light of all the above, the Government argued that, even if Article 14 applied, there would exist an objective and reasonable justification for the failure to distinguish between the applicant and other persons convicted of a serious crime. There was no need to point out that Greek Orthodox or Catholic Christians would also be excluded from the profession of chartered accountants if they had committed a serious crime.
38. The Commission considered that Article 14 applied because it was sufficient that the facts of the case fell within the ambit of Article 9, and, in its opinion, there had been an interference with the rights protected by that Article in the present case. The Commission further considered that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention was violated not only when States treated differently persons in analogous situations without providing an objective and reasonable justification, but also when States, without an objective and reasonable justification, failed to treat differently persons whose situations were different. In the circumstances of the case, there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other serious crimes.
B. The Court's assessment
39. The Court considers that the applicant's complaint falls to be examined under Article 14 of the Convention taken in conjunction with Article 9 for the following reasons.
40. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).
41. The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention.
42. However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9.
43. In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant's initial conviction and the authorities' subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1.
44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.
45. It follows that Article 14 of the Convention is of relevance to the applicant's complaint and applies in the circumstances of this case in conjunction with Article 9 thereof.
46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.).
47. The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime.
48. It is true that the authorities had no option under the law but to refuse to appoint the applicant a chartered accountant. However, contrary to what the Government's representative appeared to argue at the hearing, this cannot absolve the respondent State from responsibility under the Convention. The Court has never excluded that legislation may be found to be in direct breach of the Convention (see, inter alia, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III). In the present case the Court considers that it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9 of the Convention. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants.
49. The Court concludes, therefore, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9.
IV. ALLEGED VIOLATION oF ARTICLE 9 OF THE CONVENTION
50. The applicant argued that both his initial conviction for insubordination and the authorities' resultant refusal to appoint him as a chartered accountant constituted interference with his right to manifest his religious beliefs under Article 9 of the Convention. The Commission's case-law to the effect that the Convention did not guarantee the right to conscientious objection to military service had to be reviewed in the light of present-day conditions. Virtually all Contracting States now recognised the right to alternative civilian service. Although the Court was admittedly not competent to examine the interference arising out of the applicant's initial conviction, the applicant submitted that the interference arising out of his non-appointment could not be deemed necessary in a democratic society.
51. The Government argued that the authorities' refusal to appoint the applicant did not constitute an interference with his right under Article 9 of the Convention. In any event, it was necessary in a democratic society. At the time when the applicant refused to serve in the armed forces, Greek law only recognised the possibility of unarmed military service because it was considered that giving everybody the right to alternative civilian service could give rise to abuses. As a result, the sanction imposed on him was not disproportionate and the rule excluding persons convicted of a serious crime from certain positions had to be applied without any distinctions.
52. The Commission did not consider it necessary to address the issue.
53. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 9 and for the reasons set out in paragraph 43 above, it is not necessary also to consider whether there has been a violation of Article 9 taken on its own.
V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
54. The applicant also complained that the length of the proceedings he instituted before the Supreme Administrative Court to challenge his non-appointment gave rise to a violation of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
55. The applicant submitted that Article 6 § 1 of the Convention applied to the Supreme Administrative Court proceedings under examination because they did not concern access to the civil service but to a liberal, albeit tightly regulated, profession. Moreover, he argued that the proceedings were not concluded within a reasonable time. The case did not involve complex legal issues. The issues that were referred to the plenary of the Supreme Administrative Court were not raised by the applicant but by the Supreme Administrative Court's Chamber itself. In any event, they could not justify a delay of more than seven years.
56. The Government submitted that Article 6 § 1 was not applicable because the refusal to appoint the applicant was an administrative act falling within the sphere of public law. In any event, the case raised serious constitutional issues. Moreover, lawyers were on strike during many months in 1991, 1992, 1993 and 1994. In the light of all the above and the Supreme Administrative Court's case-load, seven years was a reasonable period.
57. The Commission considered that Article 6 applied because, although chartered accountants were appointed by administrative decision, their occupation was an independent profession. It also considered that complex legal issues were involved. However, the applicant was not responsible for any of the delays. Moreover, there were two periods of inactivity of a total duration of almost three years for which the Government did not offer any explanation apart from the Supreme Administrative Court's case-load. In the view of the Commission, the proceedings were not reasonable in length.
58. The Court recalls that, although regulated by administrative law, the profession of chartered accountants was one of the liberal professions in Greece. As a result, the proceedings instituted by the applicant to challenge the authorities' failure to appoint him to a post of chartered accountant involved a determination of his civil rights within the meaning of Article 6 § 1 of the Convention (see, among others, the Konig v. Germany judgment of 28 June 1978, Series A no. 27, p. 32, § 94).
59. The Court notes that the proceedings before the Supreme Administrative Court began on 8 May 1989, when the applicant lodged his application for judicial review, and ended on 28 June 1996, when the Third Chamber of the court rejected it. They lasted, therefore, seven years, one month and twenty days.
60. The Court recalls that the reasonableness of the length of the 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, the conduct of the authorities dealing with the case and what was at stake for the applicant (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Employment disputes, to which disputes concerning access to a liberal profession can be compared, call generally for expeditious decision (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, pp. 32-33, § 17).
61. The Court notes that the case involved legal issues of some complexity. However, the applicant did not cause any delays. And there were two periods of inactivity of a total duration of almost three years. The first such period started on 8 May 1989, when the applicant instituted the proceedings, and ended on 18 April 1991, when the Third Chamber first heard the case. The second started on 11 November 1994, when the plenary court referred the case back to the Third Chamber, and ended on 26 October 1995, when the Third Chamber issued the final decision. The only explanation offered by the Government for these periods of inactivity is the Supreme Administrative Court's case-load.
62. The Court cannot accept this explanation. According to its case-law, 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 (see the Vocaturo judgment cited above, ibid.). In the light of all the above and given that the proceedings concerned the applicant's professional future, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement.
63. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention.
vi. APPLICATION OF aRTICLE 41 OF THE CONVENTION
64. Under Article 41 of the Convention,
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
65. The applicant claimed 84,140,000 drachmas (GRD) for pecuniary damage, including approximately GRD 17,000,000 in respect of salaries lost between the authorities' refusal to appoint him and the abolition of the monopoly of the Institute of Chartered Accountants. In support of his claim, the applicant invoked “a survey conducted by the Institute of Chartered Accountants and a private chartered accountants' firm”.
66. The Government submitted that freedom of religion had nothing to do with the above damage. In any event, they pointed out that during the entire period under examination the applicant worked in the private sector and that his claims were not supported by any official documents.
67. The Court notes that, the Government's general remarks about the link between freedom of religion and pecuniary damages notwithstanding, it was not disputed that, if the authorities had not refused to appoint the applicant to a chartered accountant's post, he would have received an income related to this professional activity at least until the abolition of the monopoly of the Institute of Chartered Accountants. However, the Court also notes that the applicant was not unemployed during that period of time. Moreover, the applicant has not shown that the income he would have earned as a chartered accountant would have exceeded the income he had actually earned in private practice during the relevant period of time. The Court, therefore, does not award the applicant any compensation for pecuniary damage.
B. Non-pecuniary damage
68. The applicant claimed GRD 15,000,000 for non-pecuniary damage.
69. The Government argued that no causal link was established between the violation of the Convention and the above sum. In any event, the claim was excessive.
70. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time and of his right under Article 14 taken in conjunction with Article 9 to be free from discrimination in the exercise of his freedom of religion. The duration of the proceedings must have caused the applicant prolonged insecurity and anxiety about his eligibility to a professional activity to which he aspired. Moreover, the violation of Article 14 of the Convention taken in conjunction with Article 9 occurred in the making of decisions concerning the applicant's access to a profession, which is a central element for the shaping of one's life plans. Making its assessment on an equitable basis, the Court awards the applicant GRD 6,000,000 for non-pecuniary damage.
C. Costs and expenses
71. The applicant claimed GRD 6,250,000 in respect of costs and expenses incurred in the domestic and Convention proceedings. This amount included GRD 250,000 in lawyers' fees for the applicant's representation before the administrative authorities, GRD 1,700,000 in lawyers' fees for the proceedings before the Supreme Administrative Court, GRD 500,000 in lawyers' fees for the proceedings before the Commission, GRD 2,000,000 in lawyers' fees for the proceedings before the Court, GRD 1,300,000 for travel and subsistence expenses in connection with the appearance of the applicant and his lawyer at the hearing before the Court and GRD 500,000 for miscellaneous expenses.
72. The Government argued that the claim should be awarded only to the extent that the costs and expenses were actually and necessarily incurred and were reasonable as to quantum.
73. The Court agrees with the Government as to the test to be applied in order for costs and expenses to be included in an award under Article 41 of the Convention (see, among other authorities, Nikolova cited above, § 79). Moreover, it considers that the applicant's claim is excessive. The Court therefore awards the applicant GRD 3,000,000 under this head.
D. Default interest
74. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9;
3. Holds that it is not necessary to examine whether there has been a violation of Article 9 of the Convention taken on its own;
4. Holds that there has been a violation of Article 6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) GRD 6,000,000 (six million drachmas) for non-pecuniary damage;
(ii) GRD 3,000,000 (three million drachmas) for costs and expenses;
(b) that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;
6. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 April 2000.
Luzius Wildhaber
President
Maud de Boer-Buquicchio
Deputy Registrar
1. Note by the Registry. Protocol No. 11 came into force on 1 November 1998.
1. Note by the Registry. The full text of the Commission’s opinion and of the two separate opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry.
Hudoc reference REF00001944
Document type Judgment (Merits and just satisfaction)
Title CASE OF ANAGNOSTOPOULOS AND OTHERS v. GREECE
Application number 00039374/98
Date 07/11/2000
Respondent Greece
Conclusion Violation of Art. 6-1 as regards the right to a fair hearing ; Violation of Art. 6-1 as regard the length of proceedings ; Not necessary to examine Art. 13 ; Pecuniary damage - claim rejected ; Non-pecuniary damage - financial award ; Costs and expenses partial award - domestic proceedings ; Costs and expenses partial award - Convention proceedings
Published in Reports of Judgments and Decisions 2000-XI
Keywords ACCESS TO COURT ; FAIR HEARING ; REASONABLE TIME ; CIVIL PROCEEDINGS
------------------------------------------------
EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ANAGNOSTOPOULOS AND OTHERS v. GREECE
(Application no. 39374/98)
JUDGMENT
STRASBOURG
7 November 2000
In the case of Anagnostopoulos and Others v. Greece,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr C.L. Rozakis,
Mr L. Loucaides,
Mr P. Kuris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza, judges,
and Mrs S. Dolle, Section Registrar,
Having deliberated in private on 30 November 1999 and 10 October 2000,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (no. 39374/98) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Greek nationals, Mr Dimitrios Anagnostopoulos, Mr Athanassios Anastassopoulos, Mr Vassilios Anastopoulos, Mr Constantinos Zarkadakis, Mr Dimitrios Pantazopoulos, Mr Alexandros Paraskevopoulos and Mr Christos Vassilopoulos (“the applicants”), on 16 September 1997.
2. The applicants were represented by Mr I. Ktistakis, of the Thebes Bar. The Greek Government (“the Government”) were represented by their Agent's Delegate, Mr G. Kanellopoulos, Adviser at the State Legal Council.
3. The applicants complained, in particular, of the unfairness and length of a set of proceedings in the Court of Audit.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Third Section (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. In a decision of 30 November 1999 the Chamber declared the application partly admissible [Note by the Registry. The Court's decision is obtainable from the Registry.].
THE FACTS
7. The first applicant is a lawyer and retired major-general of the Greek army. The seventh applicant is a retired major-general of the Greek army. The other applicants are retired officers of the Greek police force.
8. In 1989 the Minister of National Defence and the Minister of Public Finances authorised the granting, from 1 January 1990, of an award for meritorious service (epidoma eydokim*s paramov*s) to colonels and their superior officers. The award was fixed at 10% of the main salary. That ministerial decision was subsequently confirmed by the Greek parliament (Law no. 1881/1990).
9. The applicants accordingly lodged claims for an increase in their pensions in accordance with the provisions of Law no. 1881/1990. They lodged their applications on 3 October 1991, 22 October 1991, 24 December 1991, 11 September 1991, 19 November 1991, 12 September 1991 and 18 November 1991 respectively.
10. Their claims were rejected by the Forty-fourth Division of the Public Accounting Department (Geviko Logist*rio toy Kratoys) on 16 October 1991, 22 October 1991, 21 January 1992, 25 September 1991, 20 November 1991, 18 September 1991 and 3 December 1991 respectively, on the ground that the applicants had retired before 1 January 1990, the date on which Law no. 1881/1990 came into force.
11. The applicants appealed to the Second Division of the Court of Audit (Elegktiko Syvedrio), which dismissed their appeals as ill-founded (decisions nos. 1694/1994, 1446/1993, 1260/1995, 306/1994, 616/1994, 477/1994 and 940/1994 respectively). In particular, the Second Division considered that the award in question could not be considered to be part of the main salary. Accordingly, it could not be taken into account for the purpose of calculating the pensions of officers having retired before the entry into force of the statute providing for the award.
12. On 22 August 1995, 10 October 1994, 13 December 1995, 7 February 1995, 17 April 1995, 2 February 1995 and 17 April 1995 respectively, the applicants appealed on points of law to the Court of Audit, sitting as a full court, which was the court having jurisdiction to examine their appeal.
13. On 22 June 1995 the Greek parliament adopted Law no. 2320/1995, which excluded the award in question from the calculation of pensions paid to officers having retired before 1 January 1990, declared any relevant claim statute-barred and any relevant judicial proceedings pending in any court to be null and void. That Law was confirmed by Law no. 2512/1997 of 27 June 1997.
14. On 4 July 1995 the Court of Audit, sitting as a full court, upheld a claim lodged by another police officer who had also retired before 1 January 1990, and ordered that his pension should be increased (judgment no. 1211/1995). That judgment marked a reversal of the case-law of the Court of Audit. It was followed by two other judgments along the same lines.
15. In judgments dated 26 March 1997 (applicants nos. 2, 4 and 6), 9 April 1997 (applicant no. 1), 14 May 1997 (applicant no. 3) and 26 May 1997 (applicants nos. 5 and 7), the Court of Audit, sitting as a full court, dismissed the applicants' appeals on the ground that they were ill-founded. The Court of Audit pointed out in particular that the award in question could not be considered as a general salary increase; accordingly, it could not be granted to officers having retired before the entry into force of Law no. 1881/1990. The Court of Audit noted, subsidiarily, that even supposing that the award in question could be considered as a general salary increase and the proceedings not declared null and void under to Law no. 2320/1995, the applicants' claims were manifestly ill-founded because the provisions of the above-mentioned statute applied retrospectively.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicants alleged that there had been a double violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... ”
They submitted, firstly, that the adoption of Law no. 2320/1995 and its application to applicants nos. 2, 4, 5, 6 and 7 had deprived them of a fair trial and, secondly, that the length of the proceedings brought by the seven applicants to secure an increase in the amount of their pensions had exceeded a “reasonable time”.
A. Fair trial
17. Applicants nos. 2, 4, 5, 6 and 7 complained of an interference by the legislature in the judicial process. They complained, among other things, that they had not had a fair trial to determine their civil right to an increase in their pensions because the question submitted to the national courts had been settled by the legislature and not by the judiciary.
18. In the Government's submission, the impugned statute had not been adopted in order to resolve the dispute between the applicants and the authorities. Worded in objective and impersonal terms, it regulated the cases of thousands of retired officers and was mainly aimed at future proceedings. In order to facilitate its implementation, proceedings which were already pending were also – inevitably – affected.
In any event, the Government maintained that the applicants could not complain of an unlawful interference by the legislature with the exercise of the judiciary's power because the Court of Audit had referred only subsidiarily to the statute in question in dismissing the applicants' appeals.
19. The Court reiterates that in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws (see, among other authorities, Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII).
20. However, it has already held that the principle of the rule of law and the notion of fair trial enshrined in Article 6 precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute. In cases raising similar issues, the Court has found that the legislature had intervened at a time when court proceedings to which the State was a party were pending. Accordingly, it has concluded that the State had infringed the applicants' rights under Article 6 by intervening in a manner which was decisive to ensure that the – imminent – outcome of proceedings to which it was a party was favourable to it (see, inter alia, the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, and the Papageorgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI).
21. In the instant case the Court considers that even if the proceedings in question were not declared null and void under Law no. 2320/1995, that statute did, nevertheless, influence the judicial determination of the dispute. While it is true that the Court of Audit dismissed the applicants' appeals after examining the merits of the case, the Court notes that it did nonetheless make reference to the provisions of the impugned statute in support of its decisions. In the Court's opinion, the fact that the Court of Audit's decision to dismiss the appeals was based even subsidiarily on the impugned statute amounts to an interference by the legislature with the judicial process designed to influence the determination of the dispute.
Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the right of applicants nos. 2, 4, 5, 6 and 7 to a fair trial.
B. Length of the proceedings
22. It remains to be determined whether or not the “reasonable time” has been exceeded as the seven applicants maintain.
23. The Government affirmed that the length of the proceedings in question had not been excessive, having regard, inter alia, to the complexity of the cases and the reversal of the Court of Audit's case-law on the subject.
1. Period to be taken into consideration
24. The Court notes that the proceedings in question began when the applicants lodged claims for an increase in their pensions in accordance with the provisions of Law no. 1881/1990, and ended with the judgments of the Court of Audit definitively dismissing their claims. They thus lasted for the following periods of time:
(i) applicant no. 1: from 3 October 1991 to 9 April 1997, that is, a period of five years, six months and six days;
(ii) applicant no. 2: from 22 October 1991 to 26 March 1997, that is, a period of five years, five months and four days;
(iii) applicant no. 3: from 24 December 1991 to 14 May 1997, that is, a period of five years, four months and twenty days;
(iv) applicant no. 4: from 11 September 1991 to 26 March 1997, that is, a period of five years, six months and fifteen days;
(v) applicant no. 5: from 19 November 1991 to 26 May 1997, that is, a period of five years, six months and seven days;
(vi) applicant no. 6: from 12 September 1991 to 26 March 1997, that is, a period of five years, six months and fourteen days;
(vii) applicant no. 7: from 18 November 1991 to 26 May 1997, that is, a period of five years, six months and eight days.
2. Reasonableness of the length of the proceedings
25. The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, the Richard v. France judgment of 22 April 1998, Reports 1998-II, p. 824, § 57, and the Doustaly v. France judgment of 23 April 1998, Reports 1998-II, p. 857, § 39).
26. The Court notes that the cases in question were not particularly difficult and considers that the applicants could not be deemed responsible for the delay found in the handling of their case. Consequently, it appears to the Court that the protractedness of the proceedings resulted mainly from the conduct of the relevant authorities.
27. The Court reaffirms that it is incumbent on the 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.
Accordingly, the applicants' case was not heard within a reasonable time and there has been an infringement of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
28. Applicants nos. 2, 4, 5, 6 and 7 also complained of an infringement of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
They considered, more particularly, that they had not had an effective remedy to assert their rights and contest the adoption of Law no. 2320/1995.
29. Having regard to its finding in paragraph 21 above, the Court holds that it is not necessary to rule on the complaint in question.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
31. The applicants claimed 3,105,010 drachmas (GRD) each under the head of pecuniary damage. That amount corresponded to the sum they would have received if their case had not been determined by legislative action. They also claimed GRD 1,000,000 each under the head of non-pecuniary damage.
32. The Government did not express a view.
33. The Court holds that, even without an intervention by the legislature, the outcome of the proceedings in the Court of Audit would have been uncertain, particularly as it dismissed the applicants' appeals after an examination of the merits. It would therefore be mere speculation as to the nature of the Court of Audit's decision to assert that it would have upheld the applicants' appeals if it had not had to take into account the provisions of Law no. 2320/1995. Accordingly, the Court considers that, in the absence of a causal link between the pecuniary damage alleged and the violation found, no award should be made under that head. However, it considers that the applicants should be awarded compensation for the non-pecuniary damage resulting from the lack of a fair trial and the length of the proceedings. Having regard to its case-law on the subject and making its assessment on an equitable basis as required by Article 41, it decides to award applicants nos. 2, 4, 5, 6 and 7 GRD 1,000,000 under that head, and applicants nos. 1 and 3 GRD 500,000 under that head.
B. Costs and expenses
34. The applicants also claimed reimbursement of the expenses they had incurred in the Court of Audit and subsequently before the Convention institutions, totalling GRD 977,000 each.
35. The Government did not express a view.
36. Although it is true that only costs necessarily incurred in the domestic courts with a view to obtaining redress for the matter found by the Court to constitute a violation can be reimbursed, the fact remains that in length of proceedings cases, the extension of the examination of a case beyond a “reasonable time” gives rise to an increase in costs to the detriment of the applicant (see Scalvini v. Italy, no. 36621/97, 26 October 1999, unreported, and Bouilly v. France, no. 38952/97, 7 December 1999, unreported). Consequently, having regard to its relevant case-law, the Court awards each of the applicants GRD 500,000 under this head.
37. With regard to the expenses incurred before the Convention institutions, the Court notes that the applicants, who were represented by a lawyer, were not awarded legal aid. It therefore awards each of them GRD 400,000 under this head.
C. Default interest
38. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT
1. Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention as regards the right of the second, fourth, fifth, sixth and seventh applicants to a fair trial;
2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention as regards the applicants' right to a trial within a “reasonable time”;
3. Holds unanimously that it is not necessary to rule on the complaint under Article 13 of the Convention;
4. Holds by six votes to one
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, GRD 1,000,000 (one million drachmas) to the second, fourth, fifth, sixth and seventh applicants for non-pecuniary damage; GRD 500,000 (five hundred thousand drachmas) to the first and third applicants for non-pecuniary damage; and GRD 900,000 (nine hundred thousand drachmas) to each of the applicants for costs and expenses, together with any value-added tax that may be chargeable;
(b) that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in French, and notified in writing on 7 November 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dolle J.-P. Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Rozakis is annexed to this judgment.
J.-P.C.
S.D.
DISSENTING OPINION OF JUDGE ROZAKIS
(Translation)
I have voted against finding a violation in respect of the complaint about the unfairness of the proceedings. My reasons are as follows. The case-law of the Convention institutions recognises that in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws (see, among other authorities, Zielinski and Pradel and Gonzalez and Others v. France [GC], nos.
24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII). Accordingly, it is not the regulation by legislative action of matters subject to the examination of the national courts which is deemed to be contrary to the Convention, but the direct application of a new statute by a court to which a dispute has already been referred, with the result that the proceedings are declared null and void or the case dismissed on the merits, contrary to the case-law applied hitherto.
Unlike the position in the Andreadis v. Greece and Papageorgiou v. Greece cases, on which the applicants relied in support of their complaints, and in which pending proceedings were annulled in direct application of laws adopted by the Greek parliament (see the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, and the Papageorgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI), in the instant case Law no. 2320/1995 did not directly affect the judicial outcome of the dispute. The Court of Audit did not annul the proceedings pursuant to the above-mentioned statute, but dismissed the appeals after having undertaken an examination on the merits of the parties' submissions. Its subsidiary reference to the provisions of the impugned statute should not lead us to conclude that the cases were dealt with by legislative action.
Consequently, I consider the complaint raised by the second, fourth, fifth, sixth and seventh applicants relating to the unfairness of the proceedings to be ill-founded.