CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 mai 1997

.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. 30342/96                       by Academy Trading Ltd and others                       against Greece           The European Commission of Human Rights sitting in private on 26 May 1997, the following members being present:                Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission       Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 November 1995 by Academy Trading Ltd and others against Greece and registered on 29 February 1996 under file No. 30342/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         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       11 December 1996 and the observations in reply submitted by the       applicants on 17 February 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicants, Academy Trading Ltd., Intercontinental Maritime Ltd., Aaron Maritime Ltd., Evie Navigation Co. Ltd., T.C. Trading Company Ltd. and Andros Trading Ltd, are shipping companies, incorporated under the laws of the Republic of Liberia.         Before the Commission, the applicants are represented by Mr. Nicholas Scorinis, an attorney-at-law practising in Piraeus.         The facts of the case, as submitted by the parties, may be summarised as follows.         In 1977 the C. bank (herein-after "the bank"), being a prime lender to the Greek shipping community, granted a $ 14.8 million loan to a group of companies under the ownership of G.T., a Greek-American shipowner. The applicants, also under the ownership of G.T., were among the guarantors of the loan.         On 21 January 1982 the applicants brought an action for damages against the bank and three of its Greek senior officers before the Athens First Instance Civil Court (*Polimeles Protodikeio). The applicants argued that because of a shipping crisis they had been unable to meet repayment instalments of the loan and that in 1979 they had been obliged to sell two ships at below their insured and actual value to another client of the bank, who had been given generous financing terms in order to take over the vessels. Eventually other vessels in the fleet were put under the same management prior to their being sold to the management company. The applicants alleged therefore that the bank had acted contrary to business morality under the Greek Civil Code.         On 1 November 1982, by decision No. 14803/1982, the First Instance Civil Court ordered the parties to submit further evidence.         On 20 November 1987, by decision No. 8027/1987, the First Instance Civil Court dismissed the applicants' action as being ill- founded.         On 29 January 1988 the applicants lodged an appeal with the Athens Court of Appeal (Efeteio).         On 31 January 1989 the Court of Appeal declared the appeal admissible without prejudging the merits and ordered a new hearing in order to submit further questions to the parties. The new hearing was held on 15 February 1990.         By decision No. 5025/1990, the Court of Appeal unanimously overturned the decision of the First Instance Civil Court and granted the applicants' claim. In a 60 page judgment, the Court established that the bank, at a time of shipping crisis, rejected a request by G.T. for an extension of time to pay off his debt and for a small amount of capital which would have enabled him to tackle urgent cash problems, despite the fact that he had already repaid 63.25 % of the loan granted to him and that he had never been late in making payments. As a result, G.T.'s business went bankrupt and the bank took over the management of his ships. The vessels were subsequently sold and the bank provided the new owner with the credit facilities it had previously refused to G.T..           Therefore, the Court considered that it was "against morality for a bank to exploit its dominant position towards its counterpart during a period of financial crisis by cruelly prosecuting it instead of extending financial facilities which are customary in banking transactions during such periods". The Court awarded the applicants $ 7.75 million plus interest at 25 % per year back-dated from 20 February 1982.         The above judgment created a stir in the local shipping community. Several publications appeared in the local and international shipping press, stressing the impact that the judgment would have on future ship credits. A number of cases started to be prepared against banks. The C. bank, who had already appealed in cassation (********) on 21 May 1990, threatened to withdraw from the Greek market altogether if the Court of Cassation (Areios Pagos) upheld the judgment of the Court of Appeal.         On 29 May 1991, by decision No. 925/1991, the First Chamber of the Court of Cassation overturned the judgment of the Court of Appeal on the ground that the bank had not acted contrary to business morality and that the attacked judgment was not sufficiently motivated. The case was then referred to the Fourth Chamber for further examination.         Following deliberations on 14 February 1992, the Fourth Chamber, by decision No. 1154/1992, ordered the parties to appear in person before it and to give further explanations about the case. The hearing was held on 11 December 1992. With the exception of one judge who had also participated in the deliberations of 14 February 1992 and was the Rapporteur of the case, the Fourth Chamber sat in a different composition.         On 30 June 1993, i.e. six months after the hearing of 11 December 1992, one of the judges participating in that hearing retired. Under Greek law this implied that if the Chamber had not reached a decision at that date it could no longer deliberate but should hear the case again in a different composition. However, no actions were taken at that stage, which led the applicants to believe that the decision had already been taken before the retirement of the judge and that they had to await the delivery of the judgment.         On 7 November 1993 the applicants inserted an open letter in a Greek newspaper. In their publication, entitled "Open letter to the Fourth Chamber of the Court of Cassation", the applicants questioned the reasons of the delay put by the Chamber in delivering its judgment. Having received no answer, the applicants addressed on 12 December 1993 a similar letter to the Minister of Justice, the President and the Public Prosecutor of the Court of Cassation. They again received no answer.         On 26 January 1994, the President of the Third Chamber (who had until summer 1993 been President of the Fourth Chamber) returned the file of the case to the Secretariat of the Fourth Chamber, accompanied by a hand-written note which read as follows: "To be further discussed, in accordance with Article 307 of the Code of Civil Procedure (since it was ascertained, after the last report, that there is a need of further deliberation, which is not feasible due to the retirement of one of the members of the Court)."         On 20 May 1994 the new hearing was held. The Fourth Chamber was composed of five judges. The first had participated in the deliberations of 14 February 1992 and the second in both previous compositions as Rapporteur. The other three members heard the case for the first time. One of them, a junior judge, was designated as the new Rapporteur.         On 30 June 1995, by decision No. 1198/1995, the Court of Cassation dismissed the appeal, lodged by the applicants against decision No. 8027/1987 of the Athens First Instance Civil Court, on the ground that it was ill-founded. In his dissenting opinion, the judge who was initially the Rapporteur of the case expressed the view that the bank had not acted in good faith and that, therefore, the applicants' appeal should be upheld.     Relevant domestic law   a.     Under Article 300 of the Code of Civil Procedure a decision is taken by the same judges who participated in the hearing of the case.   b.     Under Article 307 of the Code of Civil Procedure if, after the hearing of a case, a decision cannot be taken for any reason (namely death, resignation or removal of a judge who had participated in the hearing) the case must be reheard.     COMPLAINTS   1.     Invoking Article 6 para. 1 of the Convention, the applicants complain about the unfairness of the proceedings before the Court of Cassation. In particular they consider that their case was not heard by an impartial court. In this respect the applicants allege that even assuming that the Fourth Chamber of the Court of Cassation had not reached a decision by the day one of its members retired, there were no particular reasons why it took six months to find that the Chamber would have to hold a new hearing. They also complain that this decision for a new hearing was taken by a judge who was no longer a member of the Fourth Chamber. Finally, they submit that a new Rapporteur was designated for the last hearing before the Court of Cassation, despite the fact that the previous Rapporteur was a senior judge and the only judge who had participated in all previous hearings. They allege that this change was made because the initial Rapporteur would have proposed to uphold the judgment of the Athens Court of Appeal granting their claim, as was clearly demonstrated from his dissenting opinion inserted in the text of the final decision.   2.     The applicants also complain under Article 6 para. 1 of the Convention about the length of the proceedings before the Greek courts.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 30 November 1995 and registered on 29 February 1996.         On 4 September 1996 the Commission (First Chamber) decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 11 December 1996, after an extension of the time-limit fixed for that purpose. The applicants replied on 17 February 1997.         On 20 May 1997 the case was transferred from the First Chamber to the Plenary Commission.   THE LAW   1.     Invoking Article 6 para. 1 (Art. 6-1) of the Convention, the applicants complain about the unfairness of the proceedings before the Court of Cassation. In particular they consider that their case was not heard by an impartial court. In this respect the applicants allege that even assuming that the Fourth Chamber of the Court of Cassation had not reached a decision by the day one of its members retired, there were no particular reasons why it took six months to find that the Chamber would have to hold a new hearing. They also complain that this decision for a new hearing was taken by a judge who was no longer a member of the Fourth Chamber. Finally, they submit that a new Rapporteur was designated for the last hearing before the Court of Cassation, despite the fact that the previous Rapporteur was a senior judge and the only judge who had participated in all previous hearings. They allege that this change was made because the initial Rapporteur would have proposed to uphold the judgment of the Athens Court of Appeal granting their claim, as was clearly demonstrated from his dissenting opinion inserted in the text of the final decision.         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 fair (...) hearing within a reasonable       time by an (...) impartial tribunal (...)."         The Government first argue that the application was lodged out of time under Article 26 (Art. 26) of the Convention, which requires complaints to be submitted to the Commission within six months from the date on which the final decision was taken. They submit that the application form is dated 22 February 1996, which is more than six months after the final decision which was taken on 30 June 1995.         The Government also point out that under the terms of the declaration made by Greece recognising the right of individual petition, the Commission is not competent ratione temporis to examine applications relating to events which took place before 20 November 1985. Therefore, all complaints of the applicants referring to actions which took place before this date should be dismissed as inadmissible.         Alternatively, the Government submit that this part of the application is manifestly ill-founded for the following reasons:         The Government argue that the note written by the President of the Third Chamber cannot be considered as a decision of the Court of Cassation to hold a new hearing, but constituted a mere internal note, addressed to the court's Secretariat, and that it was within its author's competence to see to the smooth operation of the Court of Cassation.         Furthermore, the Government consider that the alleged delay in drafting this note did not infringe the applicants' right to a fair trial, nor does it raise any doubts as to the impartiality of the Court of Cassation. The Government add that it should also be taken into consideration that during the judicial vacations period, from 1 July to 15 September, the courts deal only with extremely urgent cases.         The Government further submit that the fact that this note was written by a judge who was no longer a member of the Fourth Chamber, but still the President of that Chamber at the time of the hearing of the case and also when one of its judges retired, did not infringe the applicants' right to a fair trial, nor does it raise any doubts as to the impartiality of the Court of Cassation.         As regards the reasons for the change of the Rapporteur of the case, the Government submit that this change was necessary given the fact that the case had to be heard again. According to the Government this change, which follows a well-established practice of the Court of Cassation, also gave to another member of the Fourth Chamber the possibility to study thoroughly the case, so that the truth would be safely found after an exchange and juxtaposition of opinions and thoughts on the questions raised by the case.         The applicants reject the respondent Government's observations.         The Commission notes that the proceedings undertaken by the applicants ended on 30 June 1995, which is less than six months before the introduction of their application before the Commission, i.e. 30 November 1995, date of the first communication from the applicants setting out summarily the object of their application.         It follows that this plea of inadmissibility, based on the alleged failure to comply with the six months rule, cannot be upheld.         As to the substance of the complaint, and in the light of the parties' observations, the Commission 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.   2.     The applicants also complain under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings before the Greek courts.         The Government first submit that the applicants have not expressly complained before the Commission about the length of the proceedings, and object to the Commission having on its own initiative taken into consideration the issue of "reasonable time", within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         Alternatively, the Government submit that the case was heard within a reasonable time and affirm that the length of the proceedings is attributable to their complexity in fact and law. The Government also mention the workload of the Court of Cassation.          The applicants contest the arguments of the respondent Government.         The Commission observes that the applicants have expressly complained, both in their introductory letter of 30 November 1995 (page 1 in fine) and in their application form (page 4**), about the length of the proceedings. Consequently, the Commission considers that it has jurisdiction to examine this complaint.         The Commission further notes that the proceedings lasted from 21 January 1982 to 30 June 1995, i.e. thirteen years, five months and nine days.         The Commission recalls that the period to be considered begins on 20 November 1985, when the recognition by Greece of the right of individual petition took effect; however, in assessing the reasonableness of the time that elapsed after 20 November 1985, account must be taken of the then state of proceedings (see Eur. Court H.R., Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53). Therefore, the period to which the Commission's examination relates is nine years, seven months and ten days.         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 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.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.           H.C. KRÜGER                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission