CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 octobre 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. 28970/95                       by Nicholas PHILIS                       against Greece         The European Commission of Human Rights (First Chamber) sitting in private on 17 October 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  A. WEITZEL                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 28 November 1994 by Nicholas PHILIS against Greece and registered on 24 October 1995 under file No. 28970/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Greek citizen born in 1937. He is an engineer residing in Athens. This is his twenty-sixth application to the Commission.   I.     DOMESTIC COURT PROCEEDINGS         The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   A.     Between 1971 and 1978 the Autonomous Organisation for Labour Housing (Aftonomos Organismos Ergatikis Katikias, hereinafter AOEK), a public body enjoying immunity form execution, entrusted the applicant with a number of projects. Between 1978 and 1982 the applicant lodged thirteen civil actions against the AOEK claiming the minimum fees prescribed by law, instead of the fees agreed between himself and that body. Another eight actions were brought on behalf of the applicant by the Technical Chamber of Greece (Tehniko Epimelitirio Ellados, hereinafter TEE), which had at the time, by virtue of the royal decree 30/1956, exclusive capacity to bring proceedings on behalf of engineers for the recovery of fees owed to them.         On 13 April 1983 Law 1346/83 came into force providing that engineers who had concluded an agreement with the AOEK should be remunerated in accordance with the terms of each contract. The provisions of Law 1346/83 notwithstanding, on 17 January 1989 the Court of Cassation pronounced in favour of the applicant in one of the actions brought on his behalf by the TEE. The courts applied the law in five other actions to reject them and the applicant and the TEE discontinued the remaining fifteen   actions.         Between 1984 and 1986 the TEE lodged on behalf of the applicant four civil actions based on Law 1346/83. However, only one of these actions could result in an enforceable judgment (katapsifistiki agogi). The other three were declaratory actions, the applicant having refused to pre-pay the court fees. The first action and two of the declaratory actions were rejected by the Court of Cassation on 17 January 1989, 7 March 1989 and 1 May 1989 on the ground that the applicant's claims were statute-barred. The court considered that the dates of   introduction of the original actions, ie those brought between 1978 and 1982, could not be taken into consideration because these actions had a different legal basis. The fourth action is still pending.         On 20 December 1985, 26 January 1986 and 7 February 1986 the applicant lodged three actions which could give rise to enforceable judgments against the AOEK in which his thirteen original actions were grouped. In the first action the applicant claimed 26,600,724 drachmas, in the second 28,133,280 drachmas and in the third 36,178,312 drachmas.         On 1 April, 15 April and 13 May 1986 the First Instance Civil Court of Athens decided to adjourn the hearing of the above-mentioned actions for 27 May 1986 and 10 June 1986. However, no progress was made in the proceedings on these dates either, the court being forced to apply Article 260 of the Code of Civil Procedure, which provides that the hearing is cancelled when the parties are not present or do not participate regularly.       On 29 May 1989 the applicant lodged another action against the AOEK claiming 63,850,515 drachmas in respect of interest due and 112,063,183 drachmas for losses he had allegedly incurred until that date because of the inflation and the depreciation of the currency. On 1 December 1989 the applicant lodged a further action against the AOEK claiming 67,299,761 drachmas in respect of fees for supervision work and damages.         On 13 December 1989 the First Instance Civil Court of Athens rejected the applicant's action of 29 May 1989 on the ground that he had not pre-payed the court fees. On 11 April 1990 the same court rejected the applicant's action of 1 December 1989 Athens on the same ground.         On 12 December 1991 the applicant lodged an action against the AOEK, the TEE and the State claiming 1,062,820,534 drachmas. Relying on the Philis judgment of 27 August 1991 of the European Court of Human Rights, the applicant re-introduced all the actions which had been brought by the TEE on his behalf in the past.         On 16 December 1991 the applicant summoned the AOEK to appear before the First Instance Civil Court of Athens on 7 April 1992 in connection with the three actions (katapsifistikes agoges) he had introduced on 20 December 1985, 26 January 1986 and 7 February 1986. However, the hearing of 7 April 1992 had to be cancelled under Article 260 of the Code of Civil Procedure, as the applicant did not participate regularly in the proceedings, not having pre-paid the court fees. The hearing of the action instituted by the applicant on 12 December 1991 was also adjourned on that date for the same reasons.         These actions are still pending, the applicant not having taken any initiative towards fixing a new hearing date, as he is required to do under Greek law.         On 1 October 1993 the applicant appealed against the decisions of the First Instance Court of 13 December 1989 and 11 April 1990.   The applicant has not taken any initiative towards fixing a new hearing date, as he is required to do under Greek law.   B.     Between 1979 and 1982 the applicant lodged a series of criminal complaints against officials of the AOEK which led to the institution of criminal proceedings against them. In the context of these proceedings the applicant addressed a letter to the Court of Appeal of Athens as a result of which he was charged in 1986 with insulting the judicial authorities. He was finally acquitted in 1991.         Moreover, in 1982 disciplinary proceedings were instituted against the applicant by the TEE for improper behaviour in that he had introduced civil proceedings against the TEE and criminal proceedings against its officials. The applicant was finally acquitted in 1993.   C.     In 1984 the applicant instituted civil proceedings against the Pendeli Children's Hospital. His action was dismissed in 1987 by the Athens Court of Appeal on the ground that the TEE had exclusive competence to sue for the recovery of fees. The TEE instituted such proceedings on behalf of the applicant in 1989. On 19 July 1993 the Athens Court of Appeal refused to grant the applicant permission to intervene in the proceedings relying, inter alia, on the precedent created by its 1987 decision which had not been set aside, in the opinion of the domestic court, by the Philis judgment of 27 August 1991 of the European Court of Human Rights.   II.    APPLICATIONS BEFORE THE COMMISSION CONCERNING THE ABOVE       PROCEEDINGS   Application No. 12750/87          On 5 January 1987 the applicant complained to the Commission, inter alia, of the enactment of Law 1346/83 which in effect cancelled the dispute between the AOEK and himself which had been submitted to the courts prior to the enactment of that law, compromised the independence and impartiality of the courts, deprived him of his claims and discriminated against him. The applicant further complained that he did not have direct access to a tribunal, since it was the TEE which had exclusive competence to sue for the recovery of his fees. He also complained of the length of the proceedings which had been instituted by him or on his behalf by that date. The applicant invoked Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.         On 7 December 1988 the Commission declared the complaint regarding access to court admissible. The remainder of the above- mentioned complaints were declared inadmissible. The Commission considered that it lacked competence ratione temporis to examine complaints concerning events, such as the enactment of Law 1346/83, which had occurred prior to 19 November 1985, date on which the recognition by Greece of the right of individual petition came into effect. It further considered that the complaints concerning the length of the proceedings were either incompatible ratione temporis, or not introduced within the six-months period, or manifestly ill-founded.         On 27 August 1991 the European Court of Human Rights considered that the applicant's inability to sue directly for the recovery of his fees amounted to a violation of his right of access to a court under Article 6 para. 1 of the Convention. It ordered Greece to pay the applicant 1,000,000 drachmas for non-pecuniary damage and 6,800,000 drachmas for costs and expenses.         On 11 March 1994 the royal decree 30/1956 was amended to give engineers the right to institute proceedings themselves for the recovery of their fees.         On 5 December 1994 the Committee of Ministers of the Council of Europe declared that it had exercised its functions under Article 54 of the Convention following the European Court of Human Rights' judgment of 27 August 1991.   Application No. 15068/89         On 10 April 1989 the applicant complained to the Commission, inter alia, of the enactment of Law 1346/83 and of the rejection of the actions lodged by the TEE on his behalf after the enactment of the above-mentioned law. He also complained of the length of the proceedings instituted by him or on his behalf until that date and of the effects of the alleged violations of the Convention on his private life. The applicant invoked Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1.         On 5 November 1990 the Commission declared the application inadmissible. The applicant's complaints concerning the outcome of the proceedings instituted by him or on his behalf prior to the enactment of Law 1346/83 were considered to be essentially the same as complaints which had been rejected in application No. 12750/87. The applicant's new complaint concerning the outcome of the proceedings instituted on his behalf after the enactment of Law 1346/83 was rejected as incompatible ratione temporis. The Commission considered that the prescription of the applicant's claims was the direct consequence of the entry into force of Law 1346/83 on 13 April 1983 and of the court judgments rejecting the original actions. The applicant's complaints regarding the length of the proceedings which had bene terminated by the decisions of the Court of Cassation of 17 January 1989, 7 March 1989 and 1 May 1989 were rejected as manifestly ill-founded. The Commission further considered that there was no appearance of a violation of Article 8 of the Convention.   Application No. 18989/91         On 16 October 1991 the applicant complained to the Commission, inter alia, that the AOEK, relying on its immunity from execution, had refused to comply with the decision of 17 January 1989 of the Court of Cassation and had paid the TEE a sum of money which, in the applicant's view, did not correspond to the sum which the court had awarded. He also complained of the application of Law 1346/83 in his case, of the length of the proceedings which were pending at the time and of his obligation to pre-pay the court fees. He invoked Articles 6, 8, 14 and 17 of the Convention and Article 1 of Protocol No. 1.         On 12 October 1994 the Commission (First Chamber) declared the application inadmissible. The complaint regarding the alleged refusal of the TEE to comply in full with the decision issued in the applicant's favour was rejected as manifestly ill-founded. The dispute between the applicant and the TEE concerning the calculation of the amount awarded by the Court of Cassation had not been submitted to the courts and, as a result, there was no interference with the applicant's rights under Article 1 of Protocol No. 1. Insofar as the applicant complained that the TEE had exclusive competence under Greek law to institute proceedings in this connection, this was an issue which had been already examined by the European Court of Human Rights. The complaint regarding the application of Law 1346/83 was rejected as being substantially the same with complaints which had been rejected in applications No. 12750/87 and 15068/89. The complaint concerning discrimination was rejected as manifestly ill-founded. So was the complaint regarding the length of the fourth set of proceedings instituted by the TEE on behalf of the applicant between 1984 and 1986 which were still pending and the length of the proceedings instituted by the applicant on 20 December 1985, 26 January 1986, 7 February 1986, 29 May 1989, 1 February 1989 and 12 December 1991, since the applicant had either failed to provide sufficient information or had been himself responsible for the delays. Finally, the   complaint concerning pre- payment of the court fees was rejected as manifestly ill-founded, since the applicant had not been arbitrarily denied access to court.   Application No. 19773/92         On 15 January 1992 the applicant complained to the Commission, inter alia, of the enactment of Law 1346/83 and the resultant prescription of the three civil actions brought on his behalf against the AOEK, of the effects that the disciplinary and criminal proceedings against him had on his right to a fair hearing in the criminal proceedings he had instituted against AOEK officials and of the length of the criminal and disciplinary proceedings against him. He invoked Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1.         On 31 August 1994 in a partial decision on the admissibility of the application the Commission (First Chamber) rejected the complaint concerning the enactment of Law 1346/83 and the resultant prescription of the three civil actions as being substantially the same as complaints which had been rejected in applications No. 12750/87 and 15068/89. The complaint regarding the effects of the criminal and disciplinary proceedings was rejected as manifestly ill-founded, since the applicant was not inhibited from instituting and pursuing criminal proceedings against AOEK officials.         On 24 May 1995 the Commission declared the complaint concerning the length of the proceedings admissible. On 16 January 1996 it expressed the opinion that there had been a violation of Article 6 para. 1 of the Convention on account of the length of the criminal and disciplinary proceedings against the applicant. On 6 May 1996 the case was brought by the Greek Government before the European Court of   Human Rights.   Application No. 19988/92         On 18 November 1992 the applicant complained to the Commission that the action he had lodged on 12 December 1991 against the AOEK, the TEE and the State lacked any prospects of success because Greek law required that court fees be pre-paid, allowed for the enactment of retroactive legislation and did not provide for enforcement proceedings against the State and public bodies. He invoked Articles 6, 8, 14 and 17 of the Convention and Article 1 of Protocol No. 1.         On 27 March 1992 the Secretariat of the Commission advised the applicant of the limited prospects of success of his application.         On 1 July 1993 the Commission, sitting as a Committee by virtue of Article 20 para. 3 of the Convention, declared the application inadmissible on the ground, first, that it was not competent to examine in abstracto the question of conformity of national law with the Convention and, secondly, that the proceedings were still pending and, as a result, the applicant could not claim to be a victim of a violation of the Convention.   Application No. 23202/94         On 20 September 1993 the applicant complained to the Commission, inter alia, that the Athens Court of Appeal, by rejecting his intervention on 19 July 1993, failed to ensure effective respect for his right of access to a court under Article 6 para. 1 of the Convention.         On 5 May 1996 the Commission (First Chamber) rejected the complaint as manifestly ill-founded. In the light of certain developments after the Philis judgment of 27 August 1991 of the European Court of Human Rights, the Commission considered that it   had not been established that the applicant did not have direct access to a court for the determination of his civil rights.   Application No. 26809/95         On 7 December 1994 the applicant complained to the Commission of the enactment of Law 1346/83, the decisions of the Court of Cassation of 17 January 1989, 7 March 1989 and 1 May 1989 rejecting his claims as statute- barred, the royal decree 30/1956 which gave the TEE exclusive competence to sue for the recovery of engineers' fees, the law requiring the pre-payment of court fees in the case of actions which could result in enforceable judgments and the law granting the AOEK immunity from execution. He invoked Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1.         On 22 December 1994 the Secretariat of the Commission advised the applicant of the limited prospects of success of his application.         On 29 June 1995 the Commission, sitting as a Committee by virtue of Article 20 para. 3 of the Convention, rejected the application as inadmissible considering that, insofar as the matters complained of had been substantiated and were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.     COMPLAINTS         The applicant complains under Article 6 para. 1 of the Convention of interferences with his right to have his civil claims determined by the courts in the proceedings he instituted against the AOEK, the TEE and the State on 12 December 1991 and in the proceedings he instituted against the AOEK on 20 December 1985, 26 January 1986, 7 February 1986, 29 May 1989 and 1 December 1989. He submits in this connection that the royal decree 30/1956 which had been found to be in breach of Article 6 para. 1 of the European Convention in the Philis judgment of 27 August 1991 had not been changed until 11 March 1994. Law 1346/83 continues to be in force and may be applied in his case. The Greek courts continue to consider as valid under domestic law the decisions they had issued in his case before the Philis judgment of 27 August 1991 of the European Court of Human Rights, including the decisions of the Court of Cassation of 17 January 1989, 7 March 1989 and 1 May 1989 rejecting the actions brought on his behalf by the TEE as statute-barred. Disciplinary or criminal proceedings of inordinate length   may be instituted against him because of the actions he has lodged. The AOEK, the TEE and the State enjoy immunity from execution. Parliament can enact a law and cancel the dispute. He has to pre-pay the court fees. The length of the proceedings is unreasonable.         The applicant also complains that his inability to obtain satisfaction in the above-mentioned proceedings amounts to an unjustified interference with his property rights under Article 1 of Protocol No. 1 on its own and in conjunction with Article 14 of the Convention. He submits that the claims he has submitted for adjudication by the courts are sufficiently established to amount to possessions within the meaning of Article 1 of Protocol No. 1. These claims would have been awarded to him, if the above-mentioned violations of Article 6 para. 1 of the Convention had not occurred.         Finally, the applicant complains under Article 8 of the Convention of the consequences of the above-mentioned violations on his professional and personal life.     THE LAW         The applicant complains under Articles 6, 8 and 14 (Art. 6, 8, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) about his inability to have his claims against the AOEK, the TEE and the State determined by a court.         The Commission has carefully examined the application and the separate complaints as they have been submitted by the applicant including the complaint regarding the length of the proceedings, which remain stagnant since 7 April 1992 and 1 October 1993, as a result of the applicant's failure to take any steps towards fixing a new hearing date.         The Commission has also considered these complaints against the background of the applicant's previous applications Nos. 12750/87, 15068/89, 18989/91, 19773/92, 19988/92 and 26809/95. The Commission notes that the subject matters of these applications are essentially similar or related to each other, since they all concern various domestic court proceedings instituted by or on behalf of the applicant with a view to obtaining the recovery of fees which the AOEK allegedly owes to him.         It also notes that, further to the Philis judgment of 21 August 1991 of the European Court of Human Rights, the applicant has obtained redress in respect of his main grievance which concerned his inability to sue the AOEK himself. The applicant's other complaints about the proceedings for the recovery of the fees which the AOEK allegedly owes to him have been rejected as inadmissible, often as being substantially the same as matters already examined by the Commission and containing no relevant new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.         The Commission further notes that since January 1987, when he lodged Application No. 12750/87, the applicant has had ample opportunity to acquaint himself with the procedure of the Commission. Furthermore, on numerous occasions, the applicant has been informed in detail, in the Secretariat's correspondence and in personal discussions with members of the Secretariat, of the operation of the Convention. All these communications, as well as the Commission's decisions on the admissibility of his previous applications, must have made it clear to him that the claims he has submitted to the domestic courts cannot be regarded as sufficiently established to amount to possessions within the meaning of Article 1 of Protocol No. 1 (P1-1). They must have also made clear to the applicant that the present application is either substantially the same as the matters already examined by the Commission and contains no relevant new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention, or that it is manifestly ill-founded or incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Having regard to this, the Commission finds that the applicant has abused his right of petition within the meaning of Article 27 para. 2 (Art. 27-2), in fine, of the Convention. It refers in this connection to Nos. 5070/71, 5171/71 and 5186/71, Dec. 10.7.71, Collection 42 p. 58, No. 5332/72, Dec. 2.4.73, Collection 43 p. 172 and No. 13284/87, Dec. 15.10.87, D.R. 54 p. 214, in which the Commission, declaring the applications to be inadmissible, made the following statement:         "It cannot be the task of the Commission, a body set up under the       Convention to ensure the observance of the engagements undertaken       by the High Contracting Parties in the present Convention to deal       with a succession of ill-founded and querulous complaints,       creating unnecessary work which is incompatible with its real       functions, and which hinders it in carrying them out."       The Commission finds that the same considerations apply to the present applicant. It follows that the present application constitutes an abuse of the right of petition within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber