CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 mai 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 18545/91                     by Yüksel NURIOGLU                     against Greece        The European Commission of Human Rights (Second Chamber) sitting in private on 17 May 1995, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                S. TRECHSEL                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Ms.   M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 July 1991 by Yüksel NURIOGLU against Greece and registered on 18 July 1991 under file No. 18545/91;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      14 June 1994 and the observations in reply submitted by the      applicant on 26 August 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Greek citizen of Turkish ethnic origin born in 1952 in Xanthi, Greece and currently residing in Xanthi. In the proceedings before the Commission he is represented by Professor Tekin Akillioglu, a lawyer practising in Ankara, Turkey.        The facts of the case, as they have been presented by the parties, may be summarised as follows:        The applicant obtained a degree in pharmaceutics from a Turkish university on 3 September 1979 and a licence to work as a pharmacist in Greece from the Greek Ministry of Health on 28 April 1982.   I.    Proceedings relating to the applicant's application for a licence      to establish a pharmacy in Xanthi        Considering that he fulfilled all the requirements under the law, the applicant claims to have applied to obtain a licence to establish a pharmacy in Xanthi on 20 October 1982, 2 December 1985 and 23 June 1987. According to the applicant, the competent administrative authority, in casu the Health Directorate of the Prefecture of Xanthi, refused on all three occasions to register his applications, claimed to have lost the documents submitted therewith and never replied.        On 18 January 1988 the applicant lodged a fourth application for a licence to establish a pharmacy in Xanthi, which was served this time on the Health Directorate of the Prefecture by a court bailiff.        Not having received a reply within three months, as he was entitled to by law, the applicant had recourse to the Council of State (Simvulio Epikratias) on 29 April 1988. The recourse of the applicant was placed before the Fourth Division of the Council which requested the case-file from the competent administrative authority and fixed a hearing for 29 November 1988. The administration not having sent the file, the hearing was postponed initially to 18 April 1989 and then to 13 February 1990 on the same ground.        On 10 January 1990 the applicant lodged a further application to the Prefecture of Xanthi for a licence to establish a pharmacy.        On 15 January 1990 the Council renewed its request for the case- file. On 24 January 1990 the Prefecture of Xanthi sent a file, which, however, related to a subsequent application submitted by the applicant on 10 January 1990. As a result, the hearing of 13 February 1990 was postponed to 9 October 1990. On 18 April 1990 the Council of State contacted the Prefecture of Xanthi once again with a view to obtaining the correct case-file.        On 24 May 1990 the applicant withdrew the application he had submitted to the Prefecture of Xanthi on 10 January 1990. On 9 October 1990 he informed the Council of State of his intention not to pursue the action he had lodged against the tacit refusal of the Xanthi Prefecture to grant his application of 18 January 1988.   II.   Proceedings relating to the applicant's application for a licence      to establish a pharmacy in Komotini        On 25 May 1990 the applicant lodged an application for a licence to establish a pharmacy in Komotini, a town near Xanthi, which was served on the Health Directorate of the Prefecture of Rodopi by a court bailiff.        Not having received a reply within three months, as he was entitled to by law, the applicant again had recourse to the Council of State on 28 September 1990. The recourse of the applicant was placed before the Fourth Division of the Council which requested the case-file from the competent administrative authority and fixed a hearing for 14 January 1992.        On 5 November 1991 the Ministry of Health requested the Health Directorate of the Prefecture of Rodopi to send the case-file together with its views on the applicant's case, which the Ministry would then submit to the Council of State. On 10 December 1991 the Prefecture of Rodopi informed the Ministry that it had not examined the applicant's application because the latter had failed to submit a certified photocopy of the document which recognised the equivalence of his degree to a degree obtained from a Greek University, although he had been orally informed that the uncertified photocopy of the document submitted could not be taken into consideration. On 20 December 1991 the Ministry submitted the answer of the Prefecture to the Council of State.        The hearing of 14 January 1992 was, nevertheless, adjourned to 9 June 1992, as the Council of State considered that it needed more evidence, which it requested   from the Prefecture of Rodopi on 25 May 1992. The evidence not having been submitted in time, the hearing was again adjourned to 20 October 1992.        Faced with further delays in the submission of the evidence by the administration, the Fourth Division of the Council of State decided to postpone the hearing once more until 30 March 1993 and ordered the Ministry of Health to send the evidence required within one month.   On 18 February 1993 the Prefecture of Rodopi submitted the evidence expressing the view that it had not replied to the applicant's application because two of the documents he had submitted in translation, namely his university degree and a certificate that he had completed his studies, had not been certified by a Greek consular authority.        On 21 September 1993 the Council of State decided in favour of the applicant. The Council considered that the Prefecture could not rely on the lack of certification of the documents mentioned in its replies of 10 December 1991 and 18 February 1993 to refuse the applicant's application. According to the applicant, the licence has so far not been granted.   COMPLAINTS   1.    The applicant complains under Article 3 in conjunction with Article 14 of the Convention that he is subjected to degrading treatment, not being able to establish a pharmacy because he is of Turkish ethnic origin.   2.    The applicant complains under Articles 6 and 13 of the Convention of a violation of his rights to effective access to the courts and to a hearing within a reasonable time. He submits in this connection that the administration failed on several occasions to submit the case-file to the Council of State, that the Council of State did not take the necessary steps to obtain the case-file and that the proceedings were, as a result, very lengthy.   3.    The applicant finally complains under Article 1 of Protocol No. 1 that he is deprived of his livelihood, as he is not allowed to practise his profession.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 July 1991 and registered on 18 July 1991.        On 2 March 1994 the Commission decided to communicate the application to the respondent Government and to request them to submit their written observations on admissibility and merits.        The Government's written observations were submitted on 14 June 1994, after an extension of the time-limit fixed for that purpose.   The applicant replied on 26 August 1994.   THE LAW   1.    The applicant complains under Article 3 in conjunction with Article 14 (Art. 3+14) of the Convention that he is subjected to degrading treatment, his applications to establish a pharmacy being refused because of his Turkish ethnic origin.        The Government submit that the complaint is incompatible   ratione temporis in that the applicant's first application to establish a pharmacy was submitted in 1982, i.e. at a time when Greece had not recognised the Commission's competence to examine individual applications against it.   In the Government's opinion, although the applicant's subsequent four applications were submitted after 20 November 1985, the date contained in Greece's declaration under Article 25 (Art. 25) of the Convention, they do not bring the complaint within the Commission's competence, as they refer to the initial application of 1982. Alternatively, the Government argue that the applicant has not exhausted domestic remedies. The Government distinguish between the applicant's first three applications to establish a pharmacy in Xanthi, his fourth application to establish a pharmacy in the same city and his application to establish a pharmacy in Komotini. As regards the first three applications the Government submit that they were not submitted in the form prescribed by domestic law, as they were not served by a court bailiff. Moreover, the applicant did not appeal against the Prefecture's tacit refusal within the time-limit prescribed by law. As regards the fourth application the Government argue that the applicant did not exhaust domestic remedies because he withdrew his appeal. As regards the application to establish a pharmacy in Komotini, the Government submit that the applicant never raised before the Council of State the complaints he is now raising before the Commission.        The applicant submits that his complaints fall within the Commission's competence ratione temporis, because they concern either a continuous situation or a series of repeated violations. He also claims that he has exhausted domestic remedies.        The Commission considers it unnecessary to examine whether the facts complained of disclose a continuous violation, because it is in any event competent ratione temporis to examine the applicant's complaints concerning the refusal of his second, third, fourth and fifth application which were all submitted after 20 November 1985, the date figuring in Greece's declaration under Article 25 (Art. 25) of the Convention. Neither does the Commission consider it necessary to pronounce on the issue of exhaustion of domestic remedies. In fact, the applicant has failed to substantiate his complaint that he was treated in a discriminatory way due to his ethnic origin. Even assuming that the attitude of the administrative authorities towards him may have been experienced by the applicant as somewhat degrading, such treatment remains below the level of severity required under Article 3 (Art. 3) of the Convention (Eur. Court H.R., Costello-Roberts judgment of 25 March 1993, Series A no. 247, p. 59, para. 30).        As a result, even assuming that the applicant has exhausted domestic remedies, this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains under Articles 6 and 13 (Art. 6, 13) of the Convention of a violation of his rights to effective access to the courts and to a trial within a reasonable time.        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention guarantees the right to a hearing within a reasonable time in the determination of a person's civil rights and obligations and that Article 13 (Art. 13) of the Convention guarantees the right to an effective remedy for alleged violations of the rights and freedoms set forth in the Convention.        The Government submit that the complaint is incompatible ratione temporis because the court proceedings complained of resulted from the authorities' refusal to satisfy an application which was originally submitted in 1982. In their opinion, the complaint is also incompatible ratione materiae because Article 6 para. 1 (Art. 6-1) of the Convention does not apply to disputes concerning claims under public law, such as the applicant's claim to a licence to open a pharmacy. The Government further submit that the applicant has not exhausted domestic remedies. He withdrew his appeal against the refusal of his fourth application to establish a pharmacy in Xanthi. Moreover, he submitted his application to the Commission before the conclusion of the proceedings concerning his application to establish a pharmacy in Komotini and did not refer at any stage of these proceedings to a violation of the Convention. As regards the substance of the complaint concerning the last set of court proceedings, the Government argue that the applicant had access to an impartial and independent tribunal established by law which examined his appeal within a reasonable time. The Council of State cannot be held responsible for the delays in the proceedings which were all caused by the applicant's opponent. Finally, the Government argue that the applicant cannot claim to be a victim of a violation of Article 6 (Art. 6) of the Convention, because the outcome of the proceedings was favourable for him.        The applicant submits that his complaints fall within the Commission's competence ratione temporis for the reasons referred to above. He further argues that the court proceedings complained of involved a determination of his civil right to establish a pharmacy. In the applicant's submission, he was forced to withdraw his application from the Prefecture of Xanthi as well as his Council of State appeal because of the authorities' procrastination. The applicant, moreover, argues that the Convention gives him the right to complain of the length of the proceedings before their conclusion and that there are no remedies under Greek law for alleged violations of the right to a hearing within a reasonable time. He attributes the delays in the proceedings to deliberate obstruction by the administrative authorities and lack of diligence on the part of the Council of State.        The Commission considers that the court proceedings complained of fall within its competence ratione temporis, since they were initiated after 20 November 1985, the date figuring in Greece's declaration under Article 25 (Art. 25) of the Convention.        The Commission further recalls that Article 26 (Art. 26) of the Convention provides the following :        "The Commission may only deal with the matter after all domestic      remedies have been exhausted, according to the generally      recognised rules of international law, and within a period of six      months from the date on which the final decision was taken."        The Commission notes that the applicant's appeal against the tacit refusal of the Xanthi Prefecture to grant his application of 18 January 1988 to establish a pharmacy in that city was withdrawn on 9 October 1990. However, the present application was introduced on 9 July 1991. As a result, the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention concerning the proceedings relating to his application for a licence to establish a pharmacy in Xanthi were not submitted within the six months' period provided for under Article 26 (Art. 26) of the Convention.        The Commission also considers that the applicant cannot claim to be a victim of a violation of the right of effective access to the courts under Article 6 para. 1 (Art. 6-1) of the Convention in connection with the second set of proceedings he instituted against the tacit refusal of the Komotini Prefecture to grant him a licence to establish a pharmacy, insofar as the outcome of these proceedings was favourable to him (see, mutatis mutandis, No. 10888/84, Dec. 3.12.86, D.R. 50 p. 90 and 15831/89, Dec. 25.2.91, D.R. 69 p. 317).        The Commission considers, however, that the same cannot be said in respect of the alleged violation of the applicant's right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a reasonable time in the same set of proceedings. There is no indication that the Council of State quashed the Prefecture's tacit refusal to provide redress for the applicant's specific complaint, neither did the Council of State acknowledge expressly the existence of the breach of the right to a hearing within a reasonable time (see No. 8858/80, Dec. 6.7.83, D.R. 33 p. 5).        The Commission further considers that the applicant's complaint concerning the right to proceedings of a reasonable length cannot be rejected for non-exhaustion of domestic remedies either. In accordance with the Commission's case-law, the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking non-exhaustion (No. 11208/84, Dec. 4.3.86, D.R. 41 p. 182) and in the present case the Government have limited themselves to arguing non- exhaustion without specifying what remedies were available to the applicant. The fact that the application was lodged before the conclusion of the proceedings, cannot amount to non-exhaustion, as the Government argue (see, by implication, Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A, no. 8, p. 38, para. 7).        The Commission has finally examined the parties' remaining observations and it considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.        As a result, the Commission considers that the applicant's complaint concerning the length of the proceedings relating to his application for a licence to establish a pharmacy in Komotini must be declared admissible.   3.    The applicant complains under Article 1 of Protocol No. 1 (P1-1) that he is deprived of his livelihood, as he is not allowed to practise his profession.        The Government submit that the complaint must be rejected either as incompatible ratione temporis or for non-exhaustion of domestic remedies. The applicant disagrees.        The Commission considers that the particular complaint falls within its competence ratione temporis. However, the Convention does not guarantee the right to practise a particular profession. As a result, this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention under Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint concerning the length of the      proceedings relating to his application for a licence to      establish a pharmacy in Komotini;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber     President of the Second Chamber          (M.-T. SCHOEPFER)                 (H. DANELIUS)