CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 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 }                           AS TO THE ADMISSIBILITY OF                         Application No. 27159/95                       by Nicholas STAMOULAKATOS                       against Greece         The European Commission of Human Rights (First Chamber) sitting in private on 12 April 1996, 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              Mrs.   M.F. BUQUICCHIO, 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 1 April 1995 by Nicholas STAMOULAKATOS against Greece and registered on 7 April 1995 under file No. 27159/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of the Commission;   -      the Commission's decision of 6 September 1995 to communicate the       application;   -      the observations submitted by the respondent Government on       9 November 1995 and the observations in reply submitted by the       applicant on 6 December 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Greek citizen, born in 1936 in Babini, Greece. He is a journalist and resides in London.         The facts of the case, as they have been submitted by the parties, can be summarised as follows:   A.     The particular circumstances of the case         On 23 February 1987 the applicant submitted to the Prefecture of Athens an application for a disability pension under Article 31 of law 1543/85.         An administrative inquiry was carried out by the Municipality of Moshato which concluded on 15 December 1987 that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered, as a result, irreparable damage to his health.         On 29 January 1988 the Health Committee of the Prefecture of Athens advised the General Accounting Office of the State to grant the applicant a pension. The Health Committee considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured. As a result, his right hand had been paralysed.         On 23 May 1988 the General Accounting Office (Geniko Logistirio tu Kratus) rejected the applicant's application on the ground that the conditions of Article 31 of law 1543/85 were not fulfilled. The General Accounting Office considered that the applicant's allegations were not proved by   court decisions or public documents issued before 14 June 1984 and that the applicant had not been wounded as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto. On 14 June 1988 the applicant appealed to the Audit Court (Elengtiko Sinedrio).         The applicant's appeal was heard by the Third Chamber of the Audit Court on 2 December 1988. It was rejected on 10 March 1989. The Third Chamber considered that the applicant's allegations were not proven by a court decision or public document issued before 14 June 1984. It also found that the torturing of the applicant during the dictatorship did not result in a "wounding" but in an "illness". The law, however, provided for the award of a pension to persons who had been "wounded" as a result of their opposition to the dictatorship.         On 17 April 1989 the applicant appealed in cassation to the Audit Court sitting in Plenary claiming that the Third Chamber had committed an error of law.         The Plenary held a hearing on 9 October 1991 at which the applicant did not appear. On 24 June 1992 the Audit Court decided that the applicant had not been duly summoned and adjourned the case.         Another hearing was held on 4 November 1992 at which the applicant was duly represented. On 26 May 1993 the Audit Court upheld the applicant's appeal on the ground that the Third Chamber had failed to examine in depth the cause of the applicant's right hand paralysis. It sent the case back to its Third Chamber for reconsideration.         The Third Chamber held a hearing on 22 October 1993 at which the applicant was neither present nor represented. On 28 January 1994 it decided to adjourn the case. It ordered the applicant to produce within two months a number of decisions issued in the context of criminal proceedings against the applicant before 14 June 1984. It also sent the applicant's file to the Health Committee of the Region of Attica ordering it to examine the applicant and to deliver an opinion on the following issues: Was the applicant's paralysis the result of "wounding" or "illness"?   What was the extent of his disability? Was there any relationship between his disability and his activities during the dictatorship?         On 25 November 1994 the Health Committee considered that it could not deliver an opinion on the applicant's case in the absence of any evidence that the applicant's health condition was related to his activities during the dictatorship. On 29 March 1995 the applicant was informed of the Committee's decision not to deliver an opinion.         On 6 October 1995 a new hearing was held in the applicant's case. The decision of the Third Chamber of the Audit Court has not yet been issued.   B.     Relevant domestic law         Article 31 of law 1543/85 provides the following:         "All Greek citizens who were wounded as a result either of       their direct involvement in the struggle against the       dictatorial regime of 21 April 1967 to 23 July 1974 or their       opposition to the above-mentioned regime are entitled to a       pension paid by the State Treasury, if the above-mentioned       circumstances have been recognised in a court decision or a       public document issued before 14 June 1984. ......"   COMPLAINTS   1.     The applicant complains under Article 6 para. 1 of the Convention of the length of the proceedings. He also complains under Article 13 of the Convention that he does not have any effective remedy for the above- mentioned violation.   2.     The applicant complains under Articles 5 and 14 of the Convention that he has not been awarded a pension. He also complains under Article 13 of the Convention that he does not have any effective remedy for the above-mentioned violation.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 1 April 1995 and registered on 7 April 1995.         On 6 September 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 9 November 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 6 December 1995.   THE LAW         1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the proceedings.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "In the determination of his civil rights and obligations ...       everyone is entitled to a ... hearing within a reasonable time ..."         The Government submit that the complaint is incompatible ratione temporis. The proceedings complained of concerned an application for a pension based on facts which allegedly occurred before 19 November 1985, the date figuring in the declaration of Greece recognising the right of individual petition. Alternatively, they submit that the applicant has not exhausted domestic remedies. The proceedings are still pending. Moreover, the applicant never complained to the Audit Court of the delays, neither did he request that his case be given priority.         The Government further argue that, in any event, Article 6 para. 1 (Art. 6-1) of the Convention is not applicable in the proceedings in question, because the applicant's claim to a pension was based on public law. The Government stress, in this connection, that the applicant did not claim a benefit under a social insurance scheme.         If the Commission were to consider that the applicant claimed "a civil right", the Government submit that the complaint should be rejected as manifestly ill-founded. The period to be taken into consideration cannot comprise the phase before the administrative authorities, because the latter, not being judicial organs, could not have "determined" the dispute. In any event, there were no delays before the administrative authorities and the Audit Court until 10 March 1988. All subsequent delays, including the delay caused by the adjournment of 24 June 1992, must be attributed to the failure of the applicant to indicate one single address for the purposes of notification of the various court summonses. Once the address of the applicant was established and the proceedings were resumed, there were no further delays which could be attributed to the State authorities. Moreover, the applicant's case was complex and he failed to cooperate in the proceedings as he never submitted any documents to substantiate his allegations.         The applicant refutes in general the Government's submissions.         The Commission considers that the proceedings complained of fall within its competence ratione temporis, since they were initiated on 14 June 1988, i.e. after 20 November 1985, the date figuring in Greece's declaration under Article 25 (Art. 25) of the Convention.         It also considers that the complaint cannot be rejected for non- exhaustion of domestic remedies. Contrary to what the Government argue and in accordance with the case-law of the organs of the Convention, an applicant may complain under Article 25 (Art. 25) of the Convention of the length of proceedings before their conclusion (see No. 18996/91, Garyfallou v. Greece, 24.10.95, unpublished; and by implication, Nonnis v. Italy, Comm. Report 15.1.91, para. 28, Eur. Court H.R., Series A no. 223-D, p. 41, and Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8, p. 38, para. 7). As regards the Government's other submission that the applicant never complained of the length of the proceedings, the Commission recalls its case-law to the effect that 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). In the present case the Government have not indicated any remedies which the applicant should have exhausted. The applicant's failure to request that his case be given priority cannot amount to non-exhaustion, as the Government argue, since the Government have not shown that such a measure would have been effective.         As regards the parties' remaining arguments, the Commission considers that, in the light of the criteria established in the case-law of the organs of the Convention concerning "reasonable time" (complexity of the case, conduct of the parties and the conduct of the authorities dealing with the case), the complaint concerning the length of the proceedings, including the question of the applicability of Article 6 para. 1 (Art. 6-1) of the Convention, raises serious issues of fact and law which cannot be resolved at the present stage of the examination of the application, but calls for an examination of the merits.   2.     The applicant also complains under Article 13 (Art. 13) of the Convention that he does not have any effective remedy for the violation of his right to a hearing within a reasonable time in the determination of his civil rights.         Article 13 (Art. 13) of the Convention provides as follows:         "Everyone whose rights and freedoms as set forth in this 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."         In the light of the conclusion reached above as regards the admissibility of the applicant's complaint concerning the length of the proceedings, the Commission considers that this part of the application raises serious issues of fact and law which cannot be resolved at the present stage of the examination of the application, but calls for an examination of the merits.   3.     Finally, the applicant complains under Articles 5 and 14 (Art. 5, 14) of the Convention that he has not been awarded a pension. He also complains under Article 13 (Art. 13) of the Convention that he does not have any effective remedy for the above-mentioned violation.         The Commission recalls that the proceedings instituted by the applicant before the domestic authorities in connection with his claim to a pension are still pending. So, even assuming that the above claim is capable of raising an issue under the Convention and/or its additional Protocol, the applicant's complaint is premature. It must be, therefore, rejected as manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE, without prejudging the merits, the complaint concerning the length of the proceedings and the lack of an effective remedy in that connection;         DECLARES INADMISSIBLE the remainder of the application.         Secretary                          Acting President   to the First Chamber                 of the First Chamber      (M.F. BUQUICCHIO)                         (J. LIDDY)