CEDH · CASELAW;REPORTS;ENG — 11 avril 1996

.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 }                  EUROPEAN COMMISSION OF HUMAN RIGHTS                              FIRST CHAMBER                        Application No. 18996/91                           Garyfallou A.E.B.E.                                 against                                 Greece                        REPORT OF THE COMMISSION                     (adopted on 11 April 1996)                              TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 19-31) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-26). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 27-31). . . . . . . . . . . . . . . . . . .5     III. OPINION OF THE COMMISSION      (paras. 32-55) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 32). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 33). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 1 of the Convention           (paras. 34-54). . . . . . . . . . . . . . . . . . .6             1.    The applicability of Article 6 para. 1                of the Convention                (paras. 35-41) . . . . . . . . . . . . . . . .6             2.    Compliance with Article 6 para. 1                of the Convention                (paras. 42-54) . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 55). . . . . . . . . . . . . . . . . . . . .9     SEPARATE CONCURRING OPINION OF MR. B. CONFORTI. . . . . . . 10     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 11     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.    The application   2.    The application was introduced by Ch. Garyfallou A.E.B.E., a company registered under Greek law. The applicant company was represented before the Commission by Mr. P. Bernitsas and Ms. D. Mirasgezi, attorneys-at-law practising in Athens.   3.    The application is directed against Greece.   The respondent Government were represented by their Agent, Mr. L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr. V. Kontolaimos, Deputy Member (Paredros) of the Legal Advisory Council of the State, and Mrs. Ch. Sitara, Assistant Member (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns the length of proceedings instituted by the applicant company to challenge a fine imposed on it for having violated certain rules concerning import and export trade. The applicant company invokes Article 6 para. 1 of the Convention.     B.    The proceedings   5.    The application was introduced on 12 October 1991 and registered on 17 October 1991.   6.    On 7 September 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant company's complaint under Article 6 para. 1 of the Convention concerning its right of access to court.   7.    The Government's observations were submitted on 11 November 1993. On 18 January 1994 the applicant company submitted its observations in reply. These observations were received on 31 March 1994.   8.    On 2 December 1994 the Commission decided to invite the parties to a hearing on the admissibility and merits. On 16 January 1995 the applicant company submitted the following: "When the initial application was lodged it was clear that the applicant was deprived of his right to be heard by a competent court. Subsequently, ... law 1968/1991 granted the applicant the right to apply once more for the same matter. The applicant lodged a new recourse... Irrespective of the outcome of the judicial proceedings before the Council of State the Greek Government failed to provide the applicant with an effective remedy within a reasonable period of time in violation of Article 6 of the Convention." In the light of the above, the applicant company requested the Commission to clarify any outstanding issues by means of a written procedure.   9.    On 19 January 1995 the Commission decided to cancel the hearing and to invite the parties to submit observations on the complaint regarding the length of the proceedings.   10.   Additional observations were submitted by the Government on 18 April 1995 and by the applicant company on 23 June 1995.   11.   On 24 October 1995 the Commission declared admissible the applicant company's complaint concerning the length of the proceedings under Article 6 para. 1 of the Convention.   It declared inadmissible the remainder of the application.   12.   The text of the Commission's decision on admissibility was sent to the parties on 6 November 1995 and they were invited to submit such further information or observations on the merits as they wished.   The Government did not avail themselves of this opportunity. The applicant company submitted further information on 14 December 1995.   13.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.    The present Report   14.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, Acting President           MM.   C.L. ROZAKIS                E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL 15.   The text of this Report was adopted on 11 April 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.   The Commission's decision on the admissibility of the application is annexed hereto.   18.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   19.   On 24 March 1986 the Deputy Minister of Commerce ordered under Article 8 para. 2 of Law 936/1979 the applicant company to pay a fine of 500,000 drachmas for having violated the rules concerning import and export trade, when importing glass panels of a total value of DM 15,050.   20.   On 9 April 1986, the applicant company challenged the fine before the First Instance Administrative Court (Diikitiko Protodikio) of Athens. In its judgment of 8 April 1987 (No. 5214/1987) the court considered that the applicant company's recourse (prosfigi) did not give rise to a dispute coming within the competence of the lower administrative courts (diikitiki diafora usias); it was in reality an action for annulment (akirotiki diafora) coming within the competence of the Council of State (Simvulio tis Epikratias). As a result, it decided to refer the case to the Council of State.   21.   The case was put before the Fourth Division of the Council of State on 24 August 1987 and a hearing was initially fixed for 19 April 1988. That hearing was, however, adjourned and so were the hearings fixed for 7 February 1989, 5 December 1989, 6 February 1990, 5 June 1990 and 4 December 1990. The case was, finally, heard on 8 January 1991.   22.   In the meantime the Council of State, sitting in plenary, issued decision No. 149/1990 in which it considered that there did not exist any general principle or specific legal provisions which provided for the referral to the Council of State of actions for annulment which had been wrongly introduced before the lower administrative courts.   23.   On 16 April 1991 the Fourth Division of the Council of State, following the decision of the Plenary, held that the applicant company's action for annulment had not been introduced in accordance with the law and decided to refrain from hearing the case (decision No. 1260/1991).   24.   On 11 October 1991 Law 1968/1991 was promulgated allowing in Article 40 para. 2 for the re-introduction before the competent court of legal actions which had been rejected by the Council of State or the administrative courts on a number of grounds, including actions which the Council of State had refrained from examining for lack of competence.   25.   The applicant company re-introduced its action for annulment before the Council of State on 10 February 1992 and a hearing was fixed for 18 October 1994. On that date the examination of the case was adjourned until 30 May 1995, when a further adjournment was ordered.   26.   On 28 November 1995 a hearing was held. The judge rapporteur considered that the Council of State was not competent to deal with the applicant company's recourse, which was not an action for annulment. He proposed that the case be referred to the First Instance Administrative Court of Athens.     B.    Relevant domestic law   27.   Article 8 of Law 936/1979 provides as follows:        "1.   Persons who contravene the rules concerning export and      import trade are punishable with imprisonment of a maximum      duration of two years or with a fine which cannot exceed the      total value of the goods concerned or with a combination of the      two penalties ... The criminal proceedings are instituted by the      public prosecutor proprio motu ...        2.    The Minister of Commerce ... may impose a fine on the      persons who have contravened one of the rules mentioned in the      previous paragraph, which shall not exceed the total value of the      goods concerned. The fine is imposed independently of the      criminal prosecution of the offender or his eventual acquittal      ..."   28.    In accordance with the case-law of the courts, the fine provided for under Article 8 para. 2 of Law 936/1979 is imposed to enforce rules which aim at "the control of the balance of trade and payments and (at) the protection of monetary stability and of the foreign currency reserves of the country" (decision No. 1241/1988 of the Administrative Court of Appeal of Athens, Diikitiki Diki vol. 1989 p. 318). The imposition of such a fine involves the disapproval of the offender (decision No. 2912/1986 of the Council of State, To Sindagma vol. 13 p. 366; decision No. 1241/1988 of the Administrative Court of Appeal of Athens).   29.    The fines imposed by the Minister of Commerce on persons who contravene the rules concerning import and export trade are collected in accordance with the Code for the Collection of Public Revenues (decision No. 2912/1986 of the Council of State; decision No. 1241/1988 of the Administrative Court of Appeal of Athens).   30.   According to Articles 7 and 9 of the Code for the Collection of Public Revenues, a person who fails to pay a debt to the State, the existence of which has been certified by a competent administrative authority, may be subjected to seizure of his goods and deprivation of his liberty. The above-mentioned measures of coercion are ordered by the competent administrative authority. When the debtor is a legal person, Article 69 provides for the detention of its directors.   31.   Article 40 para. 2 of Law 1968/1991, published on 11 October 1991, allowed for the re-introduction within four months from the publication of that law of remedies or recourses which had not been examined by the Council of State or an administrative court for lack of competence.     III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   32.   The Commission has declared admissible the applicant company's complaint relating to the length of the proceedings.   B.    Point at issue   33.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   34.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:        "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."   1.    The applicability of Article 6 para. 1 (Art. 6-1) of the Convention   35.   The applicant company submits that Article 6 para. 1 (Art. 6-1) of the Convention applies in the proceedings at issue because they involve a determination of "a criminal charge" against it, as this notion is autonomously understood under the Convention. The applicant company makes reference to the case-law of the Convention organs and, in particular, to the opinion of the Commission in the case of Société Stenuit v. France. It stresses, in this connection, that the fine imposed under Article 8 para. 2 of Law 936/1979 is not a mere administrative penalty; in accordance with the case-law of the domestic courts, the imposition of such a fine "involves the disapproval of the person concerned".   36.   The Government argue that Article 6 para. 1 (Art. 6-1) does not apply in the proceedings at issue. They submit that the fine imposed on the applicant company was an administrative penalty to be distinguished from criminal penalties. The aim of administrative penalties is to compel compliance with certain norms and, as opposed to criminal penalties, they do not involve any particular disapproval nor are they imposed by organs which deliver justice. Law 936/1979 makes a clear distinction between the criminal prosecution under Article 8 para. 1 of those who contravene the rules concerning import and export trade and the imposition of an administrative fine under Article 8 para. 2. An administrative fine is imposed even in cases were the "offender" is not prosecuted before the criminal courts, or even if he is acquitted.   37.   The Commission recalls that, in accordance with the case-law of the European Court of Human Rights, in order to determine whether an offence qualifies as "criminal" for the purposes of the Convention, it is first necessary to ascertain whether or not the provision defining the offence belongs in the legal system of the respondent State, to criminal law; next the very nature of the offence and the degree of the severity of the penalty risked must be considered (see, as the most recent authority, Eur. Court H.R., Pramstaller judgment of 23 October 1995, to be published in Series A no. 329, para. 32).   38.   As regards the qualification of the offence under national law, the Commission notes that Article 8 para. 1 of Law 936/1979 provides, on the one hand, for the criminal prosecution of those who "contravene" the rules concerning import and export trade. On the other hand, the second paragraph of the same Article provides for the imposition of a fine by an administrative authority on those who "contravene" the same rules. According to the case-law of the courts, the imposition of such a fine involves "the disapproval of the offender". It follows that Article 8 para. 2 of Law 936/1979 creates a series of offences, which are not considered to be criminal under domestic law.   39.   Turning to the nature of the offence, the Commission observes that the aim of the rules allegedly breached by the applicant company was the control of the balance of trade and payments as well as the protection of monetary stability and of the foreign currency reserves of the country. In short, they aimed at the protection of the general interest of society, which is also protected by criminal law.   40.   As regards, finally, the severity of the penalty, the Commission recalls that the penalty actually imposed by the Minister on the applicant company was a fine of 500,000 drachmas, a sum which is not negligible. What is more important, however, is that the applicant company risked a maximum fine equal to value of the imported goods, which amounted to 15,050 DM. Moreover, in the event of non-payment, national law provided for the seizure of the applicant company's assets and for the detention of its directors.   41.   The Commission considers that, on the basis of all the above, the Minister's decision to impose a fine on the applicant company constituted, for the purposes of the Convention, determination of a criminal charge (cf., mutatis mutandis, Société Stenuit v. France, Comm. Report 30.5.91, paras. 54-67, Eur. Court H.R., Series A no. 232, pp. 11-15). It follows that Article 6 was applicable in the case.   2.    Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   42.   The applicant company submits that the "criminal charge" against it has not been heard within a reasonable time. It stresses in this connection that, although the penalty was imposed on 24 March 1986, the proceeding are still pending.   43.   The Government submit that the Commission is competent to examine only the length of the proceedings which the applicant company instituted on 10 February 1992. The earlier proceedings were concluded on 16 April 1991 and the complaint concerning length was not raised by the applicant company before 16 January 1995. They further submit that the applicant company is responsible for the delays because of its original failure to lodge the action before the competent court.   44.   The Commission must first determine the period to be considered. More in particular, it must decide whether it should consider as starting point of the relevant period the imposition of the fine on 24 March 1986 or the re-introduction of the applicant company's action before the Council of State on 10 February 1992.   45.   The Commission recalls, in this connection, that in accordance with the case-law of the Court, in a democratic society within the meaning of the Convention the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 para. 1 (Art. 6-1) would not correspond with the aim and the purpose of that provision (Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25).   46.   The Commission notes that the action of the applicant company which is currently pending before the Council of State is in every respect identical to the action originally lodged by the applicant company before the First Instance Administrative Court of Athens to challenge the decision of the Minister of Commerce of 24 March 1986. The fact that the action had to be formally re-introduced on 10 February 1992 was the result of a legislative effort to correct, in the interests of a fair administration of justice, the position taken by the Council of State in the applicant company's and other cases concerning the possibility of hearing actions for annulment which had been referred to it by the lower administrative courts.   47.   The Commission further notes that the law which allowed for the re-introduction of the applicant company's action was promulgated shortly after its dismissal by the Council of State and that the action was re-introduced within the four-months time-limit provided for by that law.   48.   The Commission also considers that, contrary to what the respondent Government argue,   the applicant company cannot be blamed for having originally introduced its action before an administrative court of first instance. It notes in this connection the uncertainty which exists under Greek law as to the criteria on the basis of which it is decided whether an action by which no damages are claimed gives rise to an administrative dispute to be heard by a lower administrative court or to an action for annulment to be heard by the Council of State. This uncertainty is aptly illustrated by the very history of the applicant company's action. Although the first instance administrative court and the Council of State originally considered that this was a recourse for annulment which could not be examined by the lower administrative courts, at the hearing of 28 November 1995 the judge rapporteur considered that the Council of State could not examine it because it was not an action for annulment.   49.   In the light of all the above, the Commission considers that it should examine the totality of the proceedings, taking as starting point the date of the imposition of the fine. It follows that, on the date of the adoption of this report, the proceedings, which started on 24 March 1986 and are still pending, have already lasted ten years and 18 days.   50.   The Commission 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 applicant and that of the competent authorities (see Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).   51.   The Commission considers that the case is of a certain complexity, having so far involved a hearing before a lower administrative court, a referral to the Council of State, an initial rejection and a formal re-introduction following a legislative intervention. However, the complexity of the case cannot explain in itself the length of the proceedings.   52.    The Commission notes in this connection that, although the applicant company's action was first referred to the Council of State on 8 April 1987, it was not heard before 8 January 1991, i.e. three years and nine months later, the Council of State having adjourned its examination six times. Similar delays occurred when the action was re- introduced before the Council of State on 10 February 1992. It was first heard on 28 November 1995, i.e. three years, nine months and eighteen days later, the Council of State having adjourned its examination twice. The Commission notes that the respondent Government has not advanced any explanations for these adjournments.   53.   In the absence of any such explanations and of any indication that the applicant company otherwise contributed to the length proceedings, the Commission considers that it is the State authorities which should be held responsible for all the delays which are not to be attributed to the complexity of the case. In accordance with the Court's 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 in the determination of a criminal charge against him within a reasonable time (cf. Eur. Court H.R., Baggetta judgment of 25 June 1987, Series A no. 119, p. 32, para. 23).   54.   As a result, in the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.          CONCLUSION   55.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.          Secretary                            Acting President to the First Chamber                     of the First Chamber     (M.F. BUQUICCHIO)                          (J. LIDDY)                                                     (Or. French)             SEPARATE CONCURRING OPINION OF MR. B. CONFORTI        Avec le Gouvernement, je crois que la Commission n'aurait pas dû prendre en considération la première procédure, qui s'est terminée le 16 avril 1991, et dont le requérant aurait dû se plaindre devant la Commission dans les six mois à partir de cette date. En effet, cette procédure était close avec la décision d'incompétence du Conseil d'Etat et le requérant, qui était forclos pour attaquer la décision du Ministre du commerce, n'avait pu entamer une nouvelle action que grâce à l'entrée en vigueur de la loi du 11 octobre 1991 (n° 1968/1991).        En tout état de cause, je crois qu'il y avait une violation du principe du "délai raisonnable", en raison de la durée de la seconde procédure, qui, après quatre ans, deux mois et 1 jour, n'est pas encore terminée. A mon avis, dans l'évaluation de cette seconde procédure, on aurait même pu tenir compte du laps de temps écoulé pendant la première procédure, mais cela exclusivement afin de déterminer l'état où l'affaire se trouvait à l'époque. En d'autres termes, on aurait pu accorder à la première procédure, par voie d'analogie, la même considération (limitée) que l'on donne à une procédure qui s'est déroulée en partie avant l'entrée en vigueur de la Convention pour (ou avant la déclaration selon l'art. 25 de la part de) l'Etat défendeur (voir Cour eur. D.H., arrêt Foti et autres du 10 décembre 1982, série n° 56, p. 18, par. 53).