CEDH · CASELAW;CLIN;ENG — 9 décembre 1994

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Greece - 13427/87 Judgment 9.12.1994 Article 6 Article 6-1 Civil rights and obligations Fair hearing Annulment by legislative measure of an arbitration award establishing the existence of a debt owed by the State: Article 6 § 1 applicable: violation [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   GOVERNMENT'S PRELIMINARY OBJECTION (failure to exhaust domestic remedies) Respondent State required to indicate with sufficient clarity the effective remedies to which applicants have not had recourse, as it is not for Convention bodies to cure of their own motion any shortcomings or lack of precision in respondent State's arguments - there was accordingly estoppel. Conclusion : objection dismissed (unanimously). II.   ARTICLE 6 § 1 OF THE CONVENTION A.   Applicability Right under arbitration award and claim for damages allowed by arbitration court were pecuniary in nature - right to recover sums awarded by arbitration court was a "civil right", whatever the nature, under Greek law, of contract between applicants and Greek State - outcome of proceedings brought to have arbitration decision set aside was decisive for a "civil right". Conclusion : Article 6 § 1 applicable (unanimously). B.   Compliance 1.   Fair trial Proceedings subsequent to entry into force of Law no. 1701/1987 of decisive importance for purposes of Court's investigation - enactment of that Law had represented turning-point in the proceedings, which up to that point had gone against State. In litigation involving opposing private interests, equality of arms implies that each party must be afforded reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Timing and manner of adoption of Article 12 - legislature's intervention took place at a time when judicial proceedings in which State was a party were pending. Principle of rule of law and notion of fair trial preclude any interference by legislature with administration of justice designed to influence judicial determination of dispute - in instant case State intervened in decisive manner to ensure that the outcome, which was imminent, of proceedings in which it was a party was favourable to it. Conclusion : violation (unanimously). 2.   Length of proceedings (a)   Period to be taken into consideration Starting-point: date on which Greek declaration accepting right of individual petition took effect. End: delivery of Court of Cassation's judgment declaring the arbitration award void. Total: four years, four months and twenty days. (b)   Reasonableness of length of proceedings Proceedings in Court of Cassation lasted more than three years: period justified in view of need to take account of Law no. 1701/1987 and of Article 563 § 2 of the Code of Civil Procedure. Conclusion : no violation (unanimously). III.   ARTICLE 1 OF PROTOCOL No. 1 1.   Whether there was a "possession" within the meaning of Article   1 Necessary to ascertain whether a debt in the applicants' favour was sufficiently established to be enforceable. Preliminary decision of Athens Court of First Instance merely furnished applicants with hope that they would secure recognition of the claim put forward. Arbitration award clearly recognised State's liability up to a maximum of specified amounts - according to its wording, it was final and binding, did not require any further enforcement measure and was not susceptible to any ordinary or special appeal; under Greek legislation it had the force of a final decision and was deemed to be enforceable. Right to sums awarded by decision was admittedly revocable, but decision had not been annulled by ordinary civil courts - constituted a "possession". 2.   Whether there was an interference Impossible for applicants to secure enforcement of arbitration award having final effect under which State was required to pay specified amounts in respect of expenditure incurred in seeking to fulfil their contractual obligations or even for them to take further action to recover such sums through the courts: amounted to interference with applicants' property right. 3.   Whether the interference was justified Recognition by case-law of international courts and arbitration tribunals that States have sovereign power to amend or even terminate contracts concluded with private individuals, provided they pay compensation - unilateral termination of contract does not take effect in relation to certain essential clauses, such as arbitration clauses. Principle of autonomy of arbitration clauses accepted in Greek legal system and applied in instant case by Court of First Instance, Court of Appeal and, apparently, judge-rapporteur of Court of Cassation - applicants' claims originating before termination of contract not invalidated thereby. Intervention in form of a law which invoked termination of contract in question in order to declare void arbitration clause and to annul arbitration award upset balance that must be struck between protection of right of property and requirements of public interest. Conclusion : violation (unanimously). IV.   ARTICLE 50 OF THE CONVENTION A.   Pecuniary damage Applicants entitled to reimbursement of sums accorded by arbitration decision. Interest awarded. B.   Costs and expenses (before Convention institutions) Sum to be reimbursed determined on equitable basis. Conclusion : respondent State to pay applicants specified sums (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes