CEDH · CASELAW;REPORTS;ENG — 4 septembre 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. 27159/95                               Nicholas Stamoulakatos                                       against                                       Greece                              REPORT OF THE COMMISSION                          (adopted on 4 September 1996)                                  TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1     II.    ESTABLISHMENT OF THE FACTS       (paras. 6-18) . . . . . . . . . . . . . . . . . . . . . . . . . . .2         A.     The particular circumstances of the case             (paras. 7-17) . . . . . . . . . . . . . . . . . . . . . . . .2         B.     Relevant domestic law             (para. 18). . . . . . . . . . . . . . . . . . . . . . . . . .3     III.   OPINION OF THE COMMISSION       (paras. 19-38). . . . . . . . . . . . . . . . . . . . . . . . . . .4         A.     Complaints declared admissible             (para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .4         B.     Points at issue             (para. 20). . . . . . . . . . . . . . . . . . . . . . . . . .4         C.     As regards Article 6 para. 1 of the Convention             (paras. 21-32). . . . . . . . . . . . . . . . . . . . . . . .4               CONCLUSION             (para. 33). . . . . . . . . . . . . . . . . . . . . . . . . .6         D.     As regards Article 13 of the Convention             (paras. 34-35). . . . . . . . . . . . . . . . . . . . . . . .6               CONCLUSION             (para. 36). . . . . . . . . . . . . . . . . . . . . . . . . .6         E.     Recapitulation             (paras. 37-38). . . . . . . . . . . . . . . . . . . . . . . .6       APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY            OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .7   I.     INTRODUCTION   1.     The present Report concerns Application No. 27159/95 introduced on 1 April 1995 against Greece and registered on 7 April 1995.         The applicant is a Greek national born in 1936 and resident in London.         The respondent Government are 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. V. Pelekou, Assistant Member (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   2.     The application was communicated to the Government on 6 September 1995. Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 12 April 1996. The decision on admissibility is appended to this Report.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 4 September 1996 in accordance with Article 31 para. 1 of the Convention, the following members being present:               Mrs.   J. LIDDY, President             MM.    M.P. PELLONPÄÄ                   E. BUSUTTIL                   A. WEITZEL                   C.L. ROZAKIS                   G.B. REFFI                   B. CONFORTI                   N. BRATZA                   I. BÉKÉS                   G. RESS                   A. PERENIC                   C. BÎRSAN                   K. HERNDL   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Greece.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains of the length of the proceedings he instituted before the Audit Court to challenge the refusal of the authorities to grant him a pension.   A.     The particular circumstances of the case   7.     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.   8.     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.   9.     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.   10.    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).   11.    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.   12.    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.   13.    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.   14.    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.   15.    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?   16.    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.   17.    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   18.    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. ..."   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   19.    The Commission has declared admissible the applicant's complaints that his case has not been heard within a reasonable time and that he did not have an effective remedy.   B.     Points at issue   20.    The issues to be determined is, first, whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention and, secondly, whether there has been a violation of Article 13 (Art. 13) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   21.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   22.    The proceedings in question concern the applicant's claim to a pension under a scheme for persons who have suffered during the dictatorship.   The purpose of the proceedings is to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   23.    These proceedings, which began on 14 June 1988 and which are still pending, have lasted to date eight years two months and 20 days.   24.    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 parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo v. Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   25.    The Government submit that there were no delays before 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.   26.    The Commission notes that the case is not particularly complex. It further considers that the applicant's conduct is not in itself sufficient to explain the length of the proceedings. The public authorities are, on the contrary, responsible for a number of delays. 27.    The Commission notes, in this connection, that there was a period of inactivity of almost eighteen months between 17 April 1989, the date of the applicant's appeal against the decision of 10 March 1989 of the Third Chamber of the Audit Court, and the hearing before the Plenary on 9 October 1991. The Commission considers that there is nothing to indicate that this delay was linked to the alleged inability of the court authorities to locate the applicant. In any event, on 24 June 1992 the Audit Court, sitting in Plenary, found that the applicant had not been properly served with the summons.   28.    The Commission further considers that the nature of the issues raised in the applicant's appeal cannot justify the delay of eight months between the hearing of 9 October 1991 and the delivery of the decision of the Audit Court on 24 June 1992. Moreover, the Commission considers that the State authorities are responsible for a delay of eleven months between the decision of the Plenary of 24 June 1992 and its decision of 26 May 1993. This delay was caused by the fact that the applicant's appeal had to be re-heard, because the authorities had failed to summon the applicant in accordance with the law.   29.    The Commission also notes that, despite the previous delays, the Third Chamber of the Audit Court did not resume the examination of the applicant's case before 22 October 1993, i.e. five months after the decision of 26 May 1993 of the Plenary admitting the applicant's appeal. Moreover, although the Third Chamber ordered the Health Committee to deliver an opinion on the applicant's case on 28 January 1994, the Health Committee decided that for technical reasons it could not do so on 25 November 1994, i.e. ten months later. The Commission considers that this delay is not justified by the nature of the issues which the Health Committee must have considered to reach such a conclusion.   30.    Finally, the Commission notes that the Third Chamber resumed the examination of the case on 6 October 1995, i.e. ten and a half months after the decision of the Health Committee. The Commission considers that there is no indication that this delay was due to the applicant's failure to comply with the order of 28 January 1994 of the Third Chamber of the Audit Court to produce certain decisions.   31.    The Commission reaffirms that 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 (cf. Eur. Court H.R., Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   32.    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   33.    The Commission concludes, by 12 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     As regards Article 13 (Art. 13) of the Convention   34.    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."   35.    In view of its decision concerning Article 6 para. 1 (Art. 6-1) the Commission does not consider it necessary also to examine the case under Article 13 (Art. 13) of the Convention (Eur. Court H.R., Pizzetti v. Italy judgment of 26 February 1993, Series A no. 257, p. 37, para. 21).         CONCLUSION   36.    The Commission concludes, by 12 votes to 1, that it is not necessary also to examine the case under Article 13 (Art. 13) of the Convention.   E.     Recapitulation   37.    The Commission concludes, by 12 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see para. 33).   38.    The Commission concludes, by 12 votes to 1, that it is not necessary also to examine the case under Article 13 (Art. 13) of the Convention (see para. 36).        M.F. BUQUICCHIO                                     J. LIDDY      Secretary                                         President to the First Chamber                             of the First Chamber