CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 novembre 2001

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Tulkens , President ,   Mr   C.L. Rozakis ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mr   E. Levits ,   Mr   A. Kovler ,   Mr   V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar , Having regard to the above application lodged on 14 July 1999 and registered on 8 November 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Georgios Papadopoulos, is a Greek national, who was born in 1958 and lives in Aridaia. He was represented before the Court by Mr   G. Bournous, a lawyer practising in Athens, and Mr J. Berasategi, a lawyer practising in Brussels. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant and Mr Dimitrios Varsamas requested the Prefect (Νομάρχης) of Pella to grant them permission to search for ore minerals in two specific areas. On 26 September 1983 and 10 October 1983 the Prefect of Pella issued them with two such licences. On 21 November 1985 and 4 December 1985 the applicant and Mr   Varsamas, after conducting ore mineral research in the said areas, asked the Prefect of Pella to cede to them approximately 100.000 sq. meters of each area for exploitation. The two applications were transmitted the Minister of Industry. On 14 April 1986 the Minister of Industry, following an opinion of the Geological and Mineral Research Institute (Ινστιτούτο Γεωλογικών και Μεταλλευτικών Ερευνών), rejected the applications on the ground that the raw material traced in the area by the applicant and Mr Varsamas was not ore minerals but rather quarry matter. On 26 May 1986 the applicant and Mr Varsamas challenged before the First Instance Administrative Court of Athens the refusal of the authorities to cede the areas requested. On 27 February 1987 the First Instance Administrative Court of Athens rejected their action (decision no.   3324/1987). On 24 March 1987 the applicant and Mr Varsamas appealed to the Administrative Court of Appeal of Athens. On 30 November 1987 the latter quashed the decision of the first instance court on the ground that the Minister of Industry should have prolonged the initial licences to conduct research instead of rejecting the applications for the cession of the areas in question (decision no.   4298/1987). The State, the applicant and Mr Varsamas appealed in cassation to the Council of State on 21 and 22 January 1988 respectively, on the ground that the Administrative Court of Appeal had not interpreted and applied the relevant legislation correctly. The State requested the confirmation of the decision of the first instance court while the applicant and Mr Varsamas requested the cession of the relevant areas. On 30 September 1991 the Council of State accepted the appeal of the State, set aside the decision of the Administrative Court of Appeal on the ground that it had not interpreted and applied the relevant legislation correctly and referred the case to the Administrative Court of Appeal for re ‑ examination of the factual background. The Council of State instructed the Court of Appeal to base its assessment on the following interpretation of Article   2 §   2 of the Mineral Code (Μεταλλευτικός Κώδικας): The law required the interested parties to establish that it was technically possible to extract ore minerals from the areas in question the exploitation of which would be economically profitable. This question was independent of whether the interested parties actually intended to extract certain minerals as opposed to using the raw material containing the minerals, without performing any extraction (decision no. 2673/1991). Having accepted the appeal of the State, the Council of State did not consider it necessary to examine the applicant’s appeal (decision no. 2674/1991). The Court of Appeal registered the case on 26 November 1991. On 3   April 1992 it delivered an interlocutory decision ordering the hearing of university professors who had examined samples of the ores (decision no.   1839/1992). On 16 December 1992, basing itself on the above mentioned interpretation of Article 2 § 2 of the Mineral Code, the Court of Appeal considered that the disputed area should have been considered as containing ore minerals (decision no. 4367/1992). On 4 March 1993 the Greek State appealed on points of law against the latter judgement questioning the interpretation of the relevant legislation and the adequacy of its reasons. In 1994 Mr Varsamas died. On 18 January 1995 the Council of State quashed the decision of the Administrative Court of Appeal and sent the case back to it in order for the reasoning to be supplemented on certain factual matters. The Council of State considered that the Court of Appeal had not clarified why the exploitation of the ore minerals would be economically profitable (decision no.   247/1995). The Court of Appeal registered the case on 27 March 1995. On 29 December 1995 the Administrative Court of Appeal delivered an interlocutory decision ordering the applicant to produce further evidence concerning the economic profitability of the exploitation of the ore minerals (decision no. 6145/1995). On 30 July 1996 one of the judges of the Administrative Court of Appeal was replaced. On 23 December 1996, the Administrative Court of Appeal, having reconsidered the case, concluded in favour of the State, because the applicant did not adequately prove his allegations concerning the economic profitability (decision no. 5337/1996). On 15 April 1997 the applicant appealed again to the Council of State arguing that the Court of Appeal did not provide adequate reasons, did not interpret the applicable legislation correctly and breached the res judicata principle. On 17 December 1998 the Council of State dismissed the appeal in cassation (decision no. 4817/1998). The applicant received a copy of that judgment on 4 February 1999. Two of the judges who examined the appeal in cassation had been appointed to public posts, one as Director of the National School for Judges and the other as reporting judge to the special court examining actions for damages against judges. B.     Relevant domestic law According to the Mining Code, minerals are owned by the State and may be assigned by it to any person, in accordance with the provisions of the law. COMPLAINTS The applicant complained under Articles 6 § 1 and 14 of the Convention and   1 of Protocol No. 1 about the outcome and length of the proceedings. THE LAW 1.     The applicant complains under Article 6 § 1 of the Convention about the outcome of the proceedings. He considers that there is a divergence between the decisions of 23 December 1996 of the Administrative Court of Appeal and of 17 December 1998 of the Council of State, on the one hand, and the decisions of 30 September 1991 and 18 January 1995 of the Council of State, on the other. He argues furthermore that on 17 December 1998 the Council of State should have referred the case back to the Administrative Court of Appeal. “In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal...” The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, Garcia Ruiz v. Spain [GC], no.   30544/96, § 28, ECHR-I). In the present case, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case. There is no evidence to suggest that the applicant was deprived of a fair trial within the meaning of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 2.     The applicant further complains under Article 6 § 1 of the Convention that his case was not heard by an independent and impartial tribunal. He points out in this connection that one of the judges of the Administrative Court of Appeal was replaced suddenly and without any reason (on 30 July 1996). He also refers to the appointment of two members of the Council of State that heard the case for the third time (on 17 December 1998) to public posts. The Court recalls that there are two aspects to the requirement of impartiality in Article   6 §   1. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, inter alia , the Fey v.   Austria judgment of 24 February 1993, Series   A no.   255, p.   12, §   28). As to the subjective test, the Court notes that no evidence has been produced in the present case which might suggest bias on the part of the judges of the domestic courts. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings ( ibid ., §   30). In the present case the Court considers that the facts complained of do not provide a legitimate reason to doubt the impartiality of the domestic courts under the objective test. The applicant has failed to show that the replacement of one of the judges of the Administrative Court of Appeal involved any illegality. Nor does the appointment of two members of the Council of State to public posts provide grounds for calling into question their impartiality. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3.     The applicant also complains under Article 6 § 1 of the Convention about the length of the proceedings. The Government argue that the conduct of the national authorities was irreproachable. The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. 4. The applicant finally complains of a violation of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1, taken on its own and in conjunction with Article 14 of the Convention, because he was not granted the licence he had requested while other less meritorious applications had been satisfied. Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Court notes that under Greek law property rights on mines can be assigned by the State to any person who fulfils the conditions provided for in the relevant legislation. Therefore, in the present case the applicant had only an expectation that his claims would be granted, which cannot be regarded as a “possession” within the meaning of Article 1 of Protocol No.   1, since it had not been recognised and determined by a judicial decision having final effect. Yet that is the condition for a claim to be certain, enforceable and, accordingly, protected by Article 1 of Protocol No.   1 (see, among other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9   December 1994, Series A no. 301 ‑ B, pp.   84–85, §§ 59–62). In these circumstances, the Court considers that the refusal to grant the applicant the licence claimed did not affect any property right protected under Article 1 of Protocol No. 1. Moreover, a ccording to the Court’s case-law, Article 14 will be breached where, without objective and reasonable justification, persons in “relevantly” similar situations are treated differently. It has therefore to be established, inter alia , that the situation of the alleged victim can be considered similar to that of persons who have been better treated (see the Spadea and Scalabrino v.   Italy judgment of 28   September 1995, Series A no.   315-B, p. 28, § 45). In the present case, the Court notes that the applicant has failed to establish that there has been a difference in the treatment of his requests by the domestic authorities or that the refusal to grant him the licence claimed was discriminatory in its effect. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint about the length of the proceedings; Declares inadmissible the remainder of the application.   Erik Fribergh   Françoise Tulkens   Registrar   President