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You are here: BAILII >> Databases >> European Court of Human Rights >> PHILIS v. GREECE - 12750/87;13780/88;14003/88 [1991] ECHR 38 (27 August 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/38.html
Cite as: [1991] ECHR 38, (1991) 13 EHRR 741, 13 EHRR 741
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In the Philis case v. Greece*,
The European Court of Human Rights, sitting, in accordance with
Article 43** (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court***, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 21 February and 26 June 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 32/1990/223/285-287. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 21 May 1990 within the
three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
three applications (nos. 12750/87, 13780/88 and 14003/88) against the
Hellenic Republic lodged with the Commission under Article 25 (art. 25)
by a Greek national, Mr Nicolaos Philis, on 5 January 1987,
6 April 1988 and 24 June 1988 respectively.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings. On 27 June 1990 the
President of the Court gave him leave to present his own case, with the
assistance of counsel, during the written proceedings, it being
understood that he would have to be represented by a lawyer at the
hearing (Rule 30 para. 1).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 May 1990, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mrs D. Bindschedler-Robert, Mr F. Gölcüklü,
Mr L.-E. Pettiti, Mr B. Walsh, Mr C. Russo, Mrs E. Palm and
Mr I. Foighel (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Greek Government ("the Government"), the Delegate of the Commission
and the applicant on the need for a written procedure (Rule 37
para. 1). In accordance with the orders made in consequence, the
Registrar received the applicant's memorial on 25 October 1990. By
telex message of 31 October 1990 the Agent of the Government indicated
that he no longer intended to file a memorial; on 14 December 1990 the
Secretary to the Commission informed the Registrar that the Delegate
would submit his observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed, on
10 July 1990, that the oral proceedings should open on 19 February 1991
(Rule 38). In addition, on 19 December 1990 he granted the applicant's
request for legal aid (Rule 4 of the Addendum to the Rules of Court),
and the latter then designated the lawyer who was to represent him.
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr C. Economides, Director of the Special
Legal Department of the Ministry
of Foreign Affairs, Agent,
Mr N. Klamaris, Professor at Athens University,
Mr C. Chrissanthakis, Lecturer at Athens
University,
Miss A. Papathanassiou, Member of the Special
Legal Department, Ministry
of Foreign Affairs, Counsel;
(b) for the Commission
Sir Basil Hall, Delegate;
(c) the applicant and his counsel, Mr S. Perrakis,
Professor of law at the Komotini University.
The Court heard addresses by Mr Economides and Mr Klamaris for the
Government, by Sir Basil Hall for the Commission and by the applicant
himself and his counsel, Mr Perrakis, as well as their answers to its
questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Philis is a Greek national. Since 1970 he has been a
consultant engineer.
Following a disagreement as to the amount of fees owed to him for a
number of projects which he had designed, three disputes arose between
him and those who had commissioned the work, two public corporations
and a private individual.
A. The proceedings concerning the dispute with the Autonomous
Organisation for Labour Housing (Autonomos Organismos
Ergatikis Katoikias - "A.O.E.K.")
1. The background to the dispute
8. From 1971 to 1975, and then from 1976 to 1978, the A.O.E.K.,
a body under the authority of the Labour Ministry, concluded with the
applicant a series of contracts for the design of electro-mechanical
installations and the supervision of the relevant work. In March 1978
it repudiated these contracts and refused to pay him the agreed
remuneration.
9. Between 30 October 1978 and 23 December 1982, the applicant
brought, in the Athens first-instance court (Monomeles Protodikeio
Athinon), i.e. composed of a single judge, thirteen actions to recover
the fees payable for the supervision of the work in question. In
addition, he asked the Technical Chamber of Greece (Techniko
Epimelitirio Ellados -"T.E.E.") to bring proceedings on his behalf
concerning the fees which he claimed in respect of the design of the
projects, because, according to the terms of Royal Decree no. 30/1956
(see paragraph 45 below), it alone had the capacity to institute
proceedings for the recovery of fees payable to engineers, being
subrogated to their rights for this purpose. The T.E.E. brought four
actions, on 23 December 1977, 16 December 1978, 5 December 1979
and 12 January 1980.
10. On 25 September 1979 Mr Philis asked the T.E.E. to bring four
more actions. He repeated his request on 11 October and
19 November 1982. By a letter of 8 December 1982, the T.E.E. warned
him of the poor prospects of success of the additional actions
envisaged; consequently, it demanded the pre-payment of the legal fees
and the lodging of a bank guarantee intended to cover the costs of the
opposing party. The applicant regarded these conditions as unlawful
and called upon the T.E.E. not to delay any further, because of the
danger that his rights would become time-barred. On 20 December 1982
he repeated his protest but agreed to provide the guarantee requested.
On 4 January 1983 the T.E.E. informed him that on 24 December 1982 it
had complied with his request of 25 September 1979. It stated however
that it would seek purely declaratory judgments (anagnoristikes agoges)
if it did not receive payment of the legal costs before the first
hearing.
11. In the meantime the first-instance court had allowed two of the
actions brought by the T.E.E.; the Athens Court of Appeal (Efeteio)
had, however, dismissed them, whereupon the T.E.E. had appealed to the
Court of Cassation (Areios Pagos). In the course of the proceedings,
the A.O.E.K. requested a stay, with a view to securing an out of court
settlement with the applicant.
12. At this point, Parliament adopted, on 13 April 1983, on the
basis of a bill prepared by the Labour Ministry, Act no. 1346/1983
which amended and supplemented various provisions of the employment
legislation. Section 29 thereof reads as follows:
"Transitional provisions
...
5. Works contracts or contracts for the provision of independent
services of specified or indefinite duration, concluded prior to the
day of the publication of the present Act between the A.O.E.K. and
private engineers ... or engineers employed in the public sector or by
public corporations ... shall be valid notwithstanding any other
statutory provisions.
The ... above-mentioned engineers shall be entitled to the remuneration
agreed upon; the provisions ... of Act no. 716/1977 'on the registers
of researchers and the award and design of projects' shall not apply.
The provisions of this paragraph shall also apply to cases currently
pending before the courts at any level of jurisdiction in so far as no
final ruling has been made."
13. After the entry into force of the 1983 Act, the A.O.E.K.
refused any further negotiation.
Before the Court of Cassation, Mr Philis complained of the
"interference of the executive, through the legislature" in his cases
pending before the courts.
14. By two judgments of 25 May and 19 September 1984 (nos. 919/1984
and 1597/1984), the Court of Cassation ruled that the new Act covered
all engineers and did not therefore infringe the principle of equal
treatment. It added that nothing prevented the legislature from
adopting measures affecting civil rights provided that that principle
was observed. Finally, it considered that the appeals were unfounded
because they were based on provisions which had been repealed.
These judgments are not at issue in the present case.
2. The first set of proceedings
15. On 13 April 1981 the T.E.E. brought an action before the Athens
first-instance court for the payment of the applicant's fees relating
to the projects designed in 1977 and 1978 (see paragraph 8 above).
On 30 November 1981 the A.O.E.K. was ordered to pay the sum of
898,697 drachmas. It appealed from this judgment on 25 January 1982.
The applicant intervened in the proceedings on 26 February 1987 (see
paragraph 45 below).
16. On 6 April 1987 Mr Philis requested the T.E.E. to bring
additional actions to obtain the compound interest (Article 296 of the
Civil Code) which had accrued since 1981 and for the adjustment of his
claim in accordance with the rate of inflation (Article 12 para. 10 of
the Royal Decree of 19 February 1938). In addition, he complained that
the action brought by the T.E.E. of 13 April 1981 had sought merely a
declaratory judgment and that it had failed to contest a large number
of objections raised by the opposing party.
17. The Athens Court of Appeal dismissed the A.O.E.K.'s appeal on
23 May 1987 (judgment no. 6324/1987). It considered that since 1977
no employment or works contract existed between the applicant and the
Organisation. On the contrary, it noted that Mr Philis had designed
the disputed projects as an independent engineer within the meaning of
Act no. 716/1977 (see paragraph 12 above) and that the Act of
13 April 1983 was therefore not material to the case. The A.O.E.K.
appealed to the Court of Cassation on 7 July 1987.
18. Five days previously, the applicant had again requested the
T.E.E. to file the additional claims (see paragraph 16 above).
On 24 July he complained that it had not yet collected the sum awarded
on 30 November 1981 (see paragraph 15 above); in his view, the
A.O.E.K.'s appeal did not preclude the execution of the appeal judgment
upholding the first-instance decision. He also protested that there
had been no replies to his previous representations.
19. By a fourth letter of 8 September 1987 Mr Philis accused the
T.E.E. of being responsible for the slowness of the proceedings in the
Court of Appeal and demanded explanations from it as to the manner in
which it was carrying out its duties.
20. In a memorandum of 24 November 1987 to the T.E.E.'s legal
advisor, which was communicated to the applicant, the lawyer assigned
to the case stated as follows:
"...
a) The T.E.E. has never lodged a claim for compound interest against
the State or a public corporation.
b) Decree no. 676/1987 does not provide for the adjustment of fees.
Admittedly, the above-mentioned judgment of the Court of Appeal
(the only one in our favour) recognises that the design projects fell
within the scope of Act no. 716/1977 which provides for such a
possibility, but in our view this judgment is inconsistent with
section 29 para. 5 of Act no. 1346/1983 ... .
The terms of this provision suggest that the judgment will be quashed
on appeal.
c) More than twenty actions brought by ourselves and Mr Philis have
already been dismissed with final effect.
d) The T.E.E. has already paid out considerable amounts for these cases
and has had costs awarded against it on several occasions.
e) The outcome of the case pending in the Court of Cassation is
uncertain. We shall probably lose it.
For the above reasons we consider it unwise for the T.E.E. to incur
criticism and run financial risks by bringing an action for compound
interest and the adjustment of the claim under Act no. 716/1977 before
the Court of Cassation has given judgment."
21. The applicant again contacted the T.E.E. on 10 December 1987
and 15 January 1988.
22. By a judgment of 17 January 1989 (no. 24/1989), the Court of
Cassation ruled that Act no. 1346/1983 was not applicable and dismissed
the A.O.E.K.'s appeal.
23. On 8 February 1989 Mr Philis called upon the T.E.E. to pay him
the sum awarded on 30 November 1981 plus interest and various others
sums, amounting to some 13,000,000 drachmas, which it had not included
in the claims filed at the beginning of the proceedings.
On 18 April 1989 the T.E.E. informed him in writing that the
legislation in force did not allow it to institute enforcement
proceedings against the A.O.E.K., that a request for the re-adjustment
of the claim would be unlawful and that an action for interest "would
clearly be devoid of any moral basis". It added that until the
delivery of judgment no. 24/1989, serious doubts had subsisted as to
the outcome of the main proceedings, which had prevented it from filing
such claims, but the applicant could lodge them himself by means of a
subrogation action (Article 72 of the Code of Civil Procedure, see
paragraph 51 below).
3. The second set of proceedings
24. On 27 March 1984, the T.E.E. re-introduced, in the light of the
new legislation, two of the actions which it had brought on
24 December 1982 (see paragraph 10 above) in the Athens first-instance
court. Mr Philis intervened in the proceedings.
At the hearing on 23 April 1985 the T.E.E. converted these actions into
actions for declaratory judgments.
25. The court found for the applicant, by two judgments of
15 November 1985 (nos. 384/1985 and 385/1985), but on 19 and
24 November 1986 the Athens Court of Appeal allowed the A.O.E.K.'s
appeal (judgments nos. 9908/1986 and 10040/1986). It ruled that the
applicant's rights were time-barred on the ground that more than five
years had elapsed between the end of the budgetary year in the course
of which they had come into existence and the date on which the actions
had been re-introduced before the court. In reply to the opposing view
of the T.E.E., it considered that the initial claims had been made on
a different legal basis and had therefore not been capable of
interrupting the running of time.
26. On 6 April 1987 Mr Philis complained to the T.E.E. that it had
failed to put his case properly. As it refused to lodge an appeal on
points of law, he did so himself on 17 June. In his memorial, he
stated that the appeal was directed against the T.E.E. as well as
against the A.O.E.K.
27. By two judgments of 7 March (no. 213/1989) and 1 May 1989
(no. 450/1989), the Court of Cassation declared inadmissible the
submissions concerning the T.E.E. and dismissed the remainder of the
appeal as ill-founded.
4. The third set of proceedings
28. On 2 April 1984 the T.E.E. re-introduced one of its actions of
24 December 1982 (see paragraph 10 above) before the Athens
first-instance court, which simply declared the action in question
time-barred (judgment no. 326/1985 of 16 September 1986).
29. On 19 November 1986 (judgment no. 8671/1986) the Athens Court
of Appeal dismissed the T.E.E.'s appeal.
30. The applicant himself filed an appeal on points of law. His
memorial, drawn up by a lawyer of his choice, contained a number of
complaints regarding the manner in which the T.E.E. had carried out its
duties as a body subrogated to his rights.
By a judgment of 7 March 1989 (no. 214/1989), the Court of Cassation
declared the appeal inadmissible in so far as it related to the T.E.E.
and ill-founded for the rest.
5. The fourth set of proceedings
31. In November 1984 the applicant requested the T.E.E. to
re-introduce certain of the actions which it had instituted from 1977
to 1980 (see paragraph 9 above).
In a report of 18 November 1984 to the head of the T.E.E.'s legal
department, the lawyer assigned to the case expressed the view that
there were sufficient prospects of success and stressed that no problem
of res judicata arose from judgments nos. 919/1984 and 1597/1984 (see
paragraph 14 above) of the Court of Cassation.
32. On 20 February 1986 Mr Philis repeated his request and warned
the T.E.E. of the risk that the disputed rights would become
time-barred. It brought the actions in the court on 26 February, but
only in the form of actions for a declaratory judgment. The applicant
intervened in the proceedings.
On 27 May the court dismissed the actions on the same grounds as in the
judgments on appeal of November 1986 (see paragraph 25 above).
33. The applicant's appeal filed on 7 October 1986 is still
pending.
B. The proceedings relating to the dispute with the Penteli
children's hospital (Paidiko Nosokomeio Pentelis - "P.N.P.")
34. On 30 October 1981 the (Patriotiko Idryma Koinonikis Pronoias
kai Antilipseos) - Patriotic Foundation for Social Welfare and
Assistance - P.I.K.P.A., a public body under the authority of the
Ministry of Health and Social Welfare commissioned Mr Philis to design
a project for the extension of the heating system of one of its
hospitals, the Penteli children's hospital. On 23 February 1983 this
hospital, which in the meantime had become a public-law body, asked the
applicant to alter his plans. The project, which was submitted within
the time-limits laid down, was approved on 13 April 1983.
The applicant considered that a reduction of his fees effected by the
P.N.P. was arbitrary and he accordingly asked it to re-examine its
method of calculation, but to no avail. On 24 February 1984 he applied
to the relevant department of the Ministry of Health and Social
Welfare.
35. As he did not obtain satisfaction, the applicant instituted
proceedings against the P.I.K.P.A. and the P.N.P. in the Athens Court
of Appeal on 1 August 1984 pursuant to section 61 of the "Introductory
Act" (Eisagogikos Nomos) to the Code of Civil Procedure.
On 26 February 1985 he was asked by the court to provide evidence that
he was enrolled on the register of Public expenditure, a condition
which allowed an engineer to carry out public works; he did so
on 13 January 1986.
On 15 July 1986 the court dismissed his action against the P.I.K.P.A.
on the ground that all the latter's rights and obligations had been
transferred to the P.N.P. It also ordered the parties to produce
expert opinions concerning the work carried out by Mr Philis.
36. At Mr Philis's request, the Court of Appeal held a second
hearing on 22 September 1987. It dismissed the action by a judgment,
which became final on 16 November 1987. It ruled that, by virtue of
Royal Decree no. 30/1956, only the T.E.E. had the capacity to bring
proceedings to recover payment of fees in that it was subrogated to the
rights of the engineer (see paragraph 45 below); it acknowledged
nevertheless that the applicant could reasonably have believed that he
was entitled to bring proceedings himself and ordered both parties to
pay costs.
C. The proceedings relating to the dispute with A.S.
37. In November 1980 a public works contractor, A.S., commissioned
the applicant to draw up plans for the installation of a drains system
in the town of Amfilohia.
38. By a letter of 30 June 1981 Mr Philis asked for the assistance
of the T.E.E. because A.S. had rejected the plans and had not paid the
agreed remuneration.
In September 1981 the T.E.E. replied to him that it wished to settle
the dispute out of court.
As the negotiations were unsuccessful, the applicant on 20 January 1982
urged it to bring legal proceedings.
39. On 30 March 1983 he repeated his request and asked the T.E.E.
to reassess the sums claimed.
On 23 January 1984 he complained to it for not already having brought
the action and for having miscalculated the fees.
40. The T.E.E. brought an action in the Athens first-instance court
on 16 December 1985. On 26 April 1986 the action was allowed in part;
the applicant did not intervene in these proceedings.
41. The T.E.E. and A.S. challenged the judgment in the Athens Court
of Appeal. On 11 June 1987 that court ordered A.S. to pay the T.E.E.
139,336 drachmas plus interest; however, it rejected the submission
concerning the reassessment of the claim because the T.E.E. had not
specified the amount claimed (judgment no. 7439/1987).
42. On 10 July 1987 Mr Philis complained to the T.E.E. for having
failed to include in its memorial the information on the basis of which
the coefficient for the above-mentioned reassessment could be
calculated; he also requested it to institute enforcement proceedings
in relation to the judgment of 11 June 1987.
43. On 9 May 1988 he again contacted the T.E.E. He accused it of
having waited for four and a half years before bringing the
proceedings, of having miscalculated his fees and of having failed to
bring the enforcement proceedings to a conclusion with the result that
he had received nothing.
On 6 July 1988 the T.E.E. replied to him that it could not be accused
of negligence and that he had not shown that he had suffered damage.
It noted that A.S. had already paid the interest and the legal costs
and had sought authorisation to pay the remaining sum in ten monthly
instalments. Finally it added that it was for Mr Philis himself to
specify such property of A.S. as might be liable to attachment.
II. The relevant domestic law
A. Constitution
44. According to Article 20 para. 1 of the Constitution, "every
person shall be entitled to receive legal protection by the courts and
may plead before them his views concerning his rights or interests, as
specified by law."
B. Royal Decree no. 30 of 31 May 1956 laying down the rules
for the remuneration of engineers in general
45. The following provisions of the above-mentioned Royal Decree
of 31 May 1956, as they were applicable at the material time, are
relevant:
Article 1
"1. Engineers holding diplomas from the National Polytechnic ... ,
members of Technical Chamber of Greece (T.E.E.), and persons who
pursue, on a full-time or part-time basis, ... in accordance with
Act no. 6422/1934, the profession of engineer and naval architect,
shall, when commissioned to design a project, communicate to the T.E.E.
(...) a declaration attesting to their appointment by the commissioning
party and a separate declaration to the effect that they have accepted
the assignment; where the project is commissioned by the State or a
public corporation, the copy of the document authorising the assignment
of the project [shall be communicated to the T.E.E.] ...
..."
Article 2
"1. Any party who commissions the design of plans from the persons
referred to in Article 1 ... shall deposit with the T.E.E. or the
latter's authorised representative ... , the full amount of the project
fee, such fee being determined by the competent ministry or by the
T.E.E. in the manner described below. He may not pay it directly to
the person commissioned to carry out the work.
...
4. Where the commissioning party refuses, hinders or delays payment of
the deposit or of the fee owed, the T.E.E. shall have the capacity to
bring legal proceedings for the recovery of the amount due ... by being
subrogated ex officio to the rights of the payee.
5. In such cases, the T.E.E. shall inform the payee that it has
introduced proceedings, after which it is freed from any liability in
his regard, in particular from any obligation to pay him compensation.
The payee or the T.E.E. are entitled at any moment to intervene in the
proceedings."
Article 3
"1. The fees paid shall be deposited by the T.E.E. in a special bank
account and a sum equivalent to 2% of the total fee shall be credited
to the T.E.E.'s account with the Bank of Greece. ...
2. The remainder of the fee, after deduction of the percentages witheld
and the charge payable for the professional licence, shall be paid to
the payee by the T.E.E. or its authorised representative, free of
interest.
...
4. The State shall pay directly to the payees the fees which it owes
to them after having deducted 2% of such amounts, which is paid to the
T.E.E."
46. The subrogation system set up by Royal Decree no. 30/1956 was
initially intended to protect engineers from pressure being brought to
bear on them to reduce excessively their fees, but also - and this
remains the case - to secure the payment of a compulsory contribution
of 10% (since reduced to 2%) to their insurance fund (Article 3). It
is applicable only in respect of the recovery of fees payable for the
design of projects and not for the supervision of work (Article 1).
The T.E.E. has the responsibility of instituting proceedings on the
basis of the information provided by the engineer. Once the action has
been brought, the latter may intervene (Article 2) and, by filing
memorials or even by attending the hearing, support the arguments of
the T.E.E., which remains the main party in the proceedings. By so
intervening the engineer acquires the right to lodge appeals himself.
47. By a judgment of 17 April 1986 (no. 2827/1986) the Athens Court
of Appeal ruled as follows:
"... it follows that under the above-mentioned provisions
[Article 2 paras. 4 and 5 of Royal Decree no. 30/1956] the T.E.E. has
not only a right (discretionary power), but also an obligation, to take
legal proceedings on behalf of the engineer to recover fees. This
interpretation ... is consistent with the prevailing case-law according
to which the payee has no right whatsoever to bring proceedings for the
recovery of his remuneration. ... Consequently, in carrying out this
obligation, the T.E.E. acts not as the engineer's representative but
as an authority exercising an unfettered and exclusive right conferred
on it by law ... ."
48. In a judgment (no. 309/1986) the Court of Cassation held as
follows:
"... it is clear from ... Articles 1 and 2 of Royal Decree no. 30 of
31 May 1956 ... that the Technical Chamber of Greece, which alone is
entitled to collect the disputed renumeration, is subrogated to the
rights of engineers, regardless of whether they are members. If it
were otherwise the aim of the above-mentioned provisions would be
frustrated, that aim being to safeguard the interests of the profession
and to deter any competition as regards engineers' fees, liable to
affect adversely the quality of the projects which they design".
49. On the other hand, in a judgment no. 8/1988 the Larissa
Administrative Court of Appeal observed:
"Royal Decree no. 30 of 31 May 1956 ... provides in paragraphs 4 and
5 of Article 2 thereof: '... 5. In such cases, the T.E.E. shall inform
the payee that it has introduced proceedings ... . The payee or the
T.E.E. are entitled at any moment to intervene in the proceedings'.
It follows from these provisions that the T.E.E. has the right to take
legal proceedings to secure the payment of remuneration owed to one of
its members in respect of the design of a project only where the member
in question has not done so himself. If the payee takes proceedings
himself to recover the fees, the T.E.E. is entitled only to intervene
in the proceedings".
50. The Court of Cassation had occasion to rule on a claim for
compensation from an engineer who complained that the T.E.E. had not
brought proceedings to recover his fees in sufficient time to avoid the
action in question being time-barred. It considered that such
negligence gave rise to a right to compensation, but only as from the
moment at which the action became time-barred and at which the T.E.E.
could therefore no longer bring it (judgment no. 25/1988).
C. The Code of Civil Procedure (Kodikas Politikis Dikonomias)
51. The Code of Civil Procedure provides as follows:
Article 68
"Capacity to bring proceedings of parties
Any person who can establish a direct legitimate interest may seek
judicial protection."
Article 72
"Subrogation action (plagiastiki agogi)
Creditors may apply for judicial protection, exercising the rights of
their debtors in the event of the latter's failure to exercise them,
except rights of a close personal nature."
Article 80
"Intervention in support of one of the parties (apli prostheti
paremvasi)
If, in proceedings pending before a court, a third party has an
interest in the success of one of the parties, he may intervene in
support of the claims of that party until final judgment has been
given."
Article 82
"Procedural position of the intervener
The intervener may take all the steps in the proceedings in the
interests of the party which he supports and is bound to accept any
steps which have already been completed before his intervention.
The steps which he takes shall be valid in so far as they are
compatible with those of the main party in the proceedings ... "
Article 83
"'Autonomous' intervention (aftotelis prostheti paremvasi)
If the decision in the main proceedings affects the relationship
between the intervener and the opposing party, the provisions of
Articles 76 to 78 shall apply." (Articles "concerning common
interest between the parties" - "omodikia")
D. Case-law concerning the subrogation action
52. The subrogation action was introduced into Greek law in 1834
in Chapter 5 of the Code of Civil Procedure and was considered to be
an action for provisional measures and interlocutory relief. It is
now governed by the general provisions of the first Chapter of the
Code. It is generally agreed that this action is a sui generis
action which aims at safeguarding the property of the debtor in the
interests of the creditor. A person who brings the action must
prove that he is the creditor of a debtor who has neglected to
exercise his rights. The latter's insolvency is not a necessary
condition for bringing the action.
In a judgment of 6 June 1988 (no. 7892/1988) concerning enforcement
proceedings against a debtor, a private individual, who had just
lost his action against the T.E.E., the Athens Court of Appeal
stated as follows:
" ... between the T.E.E. and the engineer there is a 'quasi' debtor
(the T.E.E.) - creditor (the engineer) relationship, which lasts for
as long as the T.E.E. is under a statutory duty to secure the
recovery of the fee and to pay it thereafter to the person to whom
it is strictly due, the engineer ... It follows from the
above-mentioned provisions (Article 72 of the Code of Civil
Procedure) that if the T.E.E. fails to institute proceedings for the
recovery of fees or to bring an enforcement action for their
payment, ... the engineer, as the payee, has a legitimate interest
in doing so provided that he stipulates in his application that the
amount in question is to be paid to the T.E.E. ... "
PROCEEDINGS BEFORE THE COMMISSION
53. Mr Philis lodged applications with the Commission
on 5 January 1987 (application no. 12750/87), 6 April 1988
(application no. 13780/88) and 24 June 1988
(application no. 14003/88). He relied on Articles 6, 13 and 14
(art. 6, art. 13, art. 14) of the Convention and Article 1 of
Protocol No. 1 (P1-1). With regard to Article 6 (art. 6), he
claimed that he had not had a fair trial before an independent and
impartial tribunal within a reasonable time; he also complained of a
violation of his right of access to a court, on the ground that the
T.E.E. had been subrogated ex officio to his right to recover the
remuneration due in respect of a number of projects which he had
designed.
54. The Commission ruled on the admissibility of the three
applications on 7 December 1988 and 11 October 1989. It found
admissible the complaints concerning the right of access to a court
and the duration of the proceedings (Article 6) (art. 6)
as well as that concerning Article 13 (art. 13); it declared the
other complaints inadmissible.
On 8 March 1990 it ordered the joinder of the applications pursuant
to Rule 29 of its Rules of Procedure. In its report of the same day
(Article 31) (art. 31), it expressed the following opinion:
(a) unanimously that there had been a violation of the applicant's
right of access to a court;
(b) by eleven votes to two that the case had not been heard within a
reasonable time (application no. 13780/88);
(c) unanimously that no separate question arose under
Article 13 (art. 13).
The full text of the Commission's opinion and the dissenting opinion
contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will appear
only with the printed version of the judgment (volume 209 of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. SCOPE OF THE CASE
55. Mr Philis requested the Court to examine his complaints
under Articles 6, 8, 13, 14 and 17 (art. 6, art. 8, art. 13,
art. 14, art. 17) of the Convention and under Article 1 of Protocol
No. 1 (P1-1), those Articles being taken both in isolation and in
conjunction with one another. The Commission declared admissible
only the allegations concerning the right of access to a court, the
length of the proceedings and Article 13 (art. 13). However, the
applicant argued that it had not expressly ruled on some of his
other allegations and that the Greek legislation in this field,
namely Act no. 1346/1983 (see paragraph 12 above), Royal
Decree no. 30/1956 (see paragraph 45 above) and the Articles of the
Code of Civil Procedure on the payment in advance of legal costs,
constituted a permanent violation of the rights guaranteed under the
Convention.
In the view of the Government and the Commission, on the other hand,
the latter's decisions on admissibility defined the scope of the
case brought before the Court; that scope was in their opinion
clearly indicated in the operative part of the decisions of
7 December 1988 and 11 October 1989 (see paragraph 54 above).
56. Once a case is duly referred to it, the Court may take
cognisance of every question of law arising in the course of the
proceedings and concerning the facts submitted to its examination by
a Contracting State or by the Commission. Being master of the
characterisation to be given in law to these facts, the Court is
empowered to examine them if it deems it necessary and if need be of
its own motion, in the light of the Convention as a whole (see,
among many other authorities, the Handyside judgment of
7 December 1976, Series A no. 24, pp. 19-20, para. 41).
Having regard to all the evidence before it, the Court considers
that it can also examine the complaint based on Article 14
(art. 14) of the Convention (see paragraph 68 below) because it
relates to the same facts as the complaints under Articles 6 and 13
(art. 6, art. 13). On the other hand, it agrees with the Government
and the Commission that the other Articles relied on should not be
taken into account.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
57. The applicant alleged two violations of
Article 6 para. 1 (art. 6-1), which is worded as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable time
by [a] ... tribunal ... ."
In the first place he claimed that he had been refused access to a
court to seek the remuneration payable in respect of a number of
projects which he had designed. In addition, the Athens Court of
Appeal, ruling on his dispute with the Penteli Children's Hospital
(see paragraphs 34-36 above), had not, in his submission, given its
decision "within a reasonable time".
A. Access to a court
58. The applicant argued that he was deprived of his right of
access to a court by Royal Decree no. 30/1956, according to the
terms of which only the T.E.E. was empowered to bring an action for
the recovery of fees (see paragraph 45 above). This meant that he
was dependent on the intervention of a third party, which situation
did not make it possible for him to pursue the main proceedings at
the time and in the manner which he considered to be the most
appropriate, to have the benefit of the assistance of counsel of his
choice, to ensure that the action was well "targeted", to institute
subsidiary actions and to claim compensation. He was able to
participate in person in the proceedings only for the purpose of
supporting the T.E.E.'s arguments and did not therefore have
effective control of them. The aim of the disputed Royal Decree
was, he argued, in reality the "violation of engineers' right of
access to a court and the unlawful withholding and exploitation of
their fees"; even supposing that it pursued a legitimate aim, there
was a flagrant disproportion between that aim and the means
employed.
The Government contested this view. In their opinion, a restriction
on the right of engineers to institute proceedings in the courts,
should the Court find that there was one, would not be contrary to
Article 6 (art. 6). The Royal Decree sought only to protect the
rights and interests of engineers by guaranteeing a "compulsory
minimum scale of fees". Furthermore, the means employed were
consistent with that objective. The notion of rights being
subrogated to a third party, which had very deep roots in Greek law,
was introduced in this area at the express request of engineers, who
wished for a more effective and vigorous protection of their rights:
in the event of non-payment of their fees, they would be reluctant
to sue their clients; in any case, they were paid their fees more
easily and more rapidly as a result of the deposit of the amount
owed with a professional association responsible for paying them
over at a later stage.
59. The Court recalls that in its judgments in the Golder case
of 21 January 1975 and the Ashingdane case of 28 May 1985
(Series A no. 18, p. 18, para. 36, and no. 93, pp. 24-25,
para. 57), it held that Article 6 para. 1 (art. 6-1) secured to
everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal; in this way the
Article embodies the "right to a court", of which the right of
access, that is the right to institute proceedings before courts in
civil matters, constitutes one aspect.
This right of access, however, is not absolute but may be subject to
limitations since the right by its very nature calls for regulation
by the State. Nonetheless the limitations applied must not restrict
or reduce the access left to the individual in such a way or to such
an extent that the very essence of the right is impaired.
60. As the Government stressed, the requirements of
Article 6 (art. 6) - which is moreover directly applicable in the
Greek domestic legal system and, according to Article 28 of the
Greek Constitution of 1975, is of higher authority than domestic
legislation - were implemented in Greece both by Article 20 of the
Constitution (see paragraph 44 above) and by Article 68 of the Code
of Civil Procedure (see paragraph 51 above).
In addition to these provisions of a general nature, however, Greek
legislation also lays down special rules applying to various
socio-professional categories, such as Royal Decree no. 30/1956,
Article 2 para. 4 of which would indeed appear to confer on the
T.E.E. the exclusive right to take legal proceedings to recover the
fees of engineers by its being subrogated ex officio to the latter's
rights (see paragraph 45 above).
According to the Government, this legislation does not expressly
preclude the persons concerned from themselves instituting
proceedings; the T.E.E.'s capacity to bring proceedings is
"parallel" to that of the true beneficiaries but does not exclude
it, otherwise Article 2 para. 5 of the Decree (see paragraph 45
above) would have no point. In support of this position they
referred to a judgment of the Larissa Administrative Court of Appeal
(see paragraph 49 above) and the opinion of certain academic
writers, to the effect that the disputed provisions do not conflict
with Article 68 of the Code of Civil Procedure (see paragraph 51
above).
61. It is not for the Court to assess the merits of the Greek
system for the payment of engineers' fees as such; it will therefore
confine itself, in so far as possible, to examining the issues
raised by the specific case before it. In order to do so, however,
it must examine the provisions in question to the extent to which
the impediment to the individual's right of access was in fact the
result of their application (see, mutatis mutandis, the Mellacher
and Others judgment of 19 December 1989, Series A no. 169, p. 24,
para. 41).
There are indeed advantages flowing from the system in question: by
representing engineers in the courts, the T.E.E. provides them, in
return for a small percentage, with the services of experienced
counsel and it bears in addition the legal costs and the lawyers'
fees, which less well-off engineers would sometimes find it
difficult to pay. The wording used in paragraphs 4 and 5 of
Article 2 is however ambivalent, with the result that
there has been disagreement among academic writers and in the
case-law as to their implications. Read literally, Royal
Decree no. 30/1956 confers on the T.E.E. the exclusive capacity to
bring proceedings on behalf of engineers. Existing practice is
consistent with this interpretation.
In accordance with such practice, Mr Philis requested the T.E.E., in
connection with his disputes with the A.O.E.K. and A.S., to bring
proceedings in the courts. When he himself sued the P.I.K.P.A and
the P.N.P. in the Athens Court of Appeal, that court dismissed his
action on the ground that he lacked the requisite capacity
(see paragraph 36 above).
62. This practice is confirmed by the prevailing case-law. In
its judgment no. 2827/1986 (see paragraph 47 above), the Athens
Court of Appeal held that "the T.E.E. ... acts not as the engineer's
representative, but as an authority exercising an unfettered and
exclusive right conferred on it by law ... ". For its part, the
Court of Cassation decided that the T.E.E. was subrogated ex officio
to the rights of engineers even where they were not members of the
T.E.E. (judgment no. 309/1986 - see paragraph 48 above). It also
recognised that, where the T.E.E. did not bring an action for the
recovery of fees in sufficient time to prevent the action in
question being time-barred, such negligence gave rise to a right to
compensation; it did not enquire into whether there had been
contributory negligence in so far as the person concerned had not
tried to bring proceedings himself (judgment no. 25/1988 - see
paragraph 50 above). The judgment of the Larissa Administrative
Court of Appeal cited by the Government does appear to be clearly
out of line with the case-law.
63. The Government contended that, notwithstanding the effect
of the system described above, the applicant could have asserted his
rights in person through the numerous means available to him in
Greek civil procedure. He could have intervened "autonomously" in
the proceedings brought by the T.E.E., a possibility of which he had
moreover availed himself by virtue of Article 2 para. 5 of Royal
Decree no. 30/1956, in conjunction with Article 83 of the Code of
Civil Procedure (see paragraphs 45 and 51 above); he could have
lodged a third party objection (tritanakopi - Article 586 of the
Code of Civil Procedure) to a judgment delivered in breach of the
requirements of Article 2 para. 5 of Royal Decree no. 30/1956 (see
paragraph 45 above); he could have brought an action for damages
(Article 914 of the Civil Code) against the T.E.E., which had, by
its conduct, allegedly caused him damage; finally, he could have
brought a subrogation action under Article 72 of the Code of Civil
Procedure (see paragraph 51 above).
The principal condition for the exercise of the last-mentioned
remedy was satisfied. The engineer was entitled to sue his clients
on his own initiative, provided that he asked that the fees be paid
to the T.E.E. This right of the true beneficiary was derived from
the rules on subrogation and came into being with the engineer's
right to receive his remuneration.
64. This reasoning does not persuade the Court.
Intervention and third party objection are possible only once the
proceedings have been instituted by the T.E.E., whereas the action
for damages makes it possible for the engineer to claim
compensation, but not his fees as such.
As to the subrogation action, the prevailing case-law of the Greek
courts indicates that the general provision of Article 72 of the
Code of Civil Procedure does not override the specific provision of
Article 2 para. 4 of Royal Decree no. 30/1956, notwithstanding that
it may be possible to regard the T.E.E. as a debtor in relation to
the engineer before the payment of the remuneration. The Court,
like the Commission, notes in particular that the sole judgment
invoked by the Government in support of their view concerned the
enforcement of a judgment which had awarded the T.E.E. the sum in
dispute by a final decision (see paragraph 52 above).
65. In conclusion, since the applicant was not able to institute
proceedings, directly and independently, to seek the payment from
his clients - even to the T.E.E. in the first instance - of fees
which were owed to him, the very essence of his "right to a court"
was impaired, and this could not be redressed by any remedy
available under Greek law.
There has therefore been on this point a violation of
Article 6 para. 1 (art. 6-1).
B. Length of proceedings
66. Mr Philis also complained that the Athens Court of Appeal
took more than three years to give its decision which, in any event,
was confined to dismissing his action on the ground that he lacked
capacity to bring proceedings (see paragraphs 34-36 above). It had
therefore failed to rule within a "reasonable time".
In the light of the finding set out in the preceding paragraph, the
Court does not consider it necessary to examine this complaint.
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
67. Mr Philis maintained further that no effective remedy had
been available to him before a national "authority" to complain of
the breach of his right of access to a court. There had therefore
been a violation of Article 13 (art. 13), which is worded as
follows:
"Everyone whose rights and freedoms as set forth in [the] 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."
Having regard to its decision concerning Article 6 (art. 6), the
Court, like the Commission, takes the view that it does not have to
examine the case under Article 13 (art. 13) as its requirements are
less strict than, and are here absorbed by, those of Article 6
(art. 6) (see, among many other authorities, the Håkansson and
Sturesson judgment of 21 February 1990, Series A no. 171-A, p. 21,
para. 69).
IV. ALLEGED VIOLATION OF ARTICLE 14, IN CONJUNCTION WITH
ARTICLE 6 PARA. 1 (art. 14+6-1)
68. According to Article 14 (art. 14) of the Convention,
"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 applicant claimed to be the victim of a twofold discrimination
incompatible with this provision.
In the first place, the provisions of Act no. 1346/1983 which were
retrospective in effect were directed at him personally and had been
applied exclusively in his cases pending in the courts. As evidence
of this he cited the express reference to his name in the record of
the parliamentary debates prior to the voting of this Act.
Secondly, the profession of engineer was the only profession whose
members did not have the benefit of direct access to the courts to
assert their civil rights.
In its decision of 7 December 1988 on the admissiblity of the
application, the Commission rejected the first complaint because it
concerned a period prior to 20 November 1985, when the Greek
declaration accepting the right of individual petition took effect.
Accordingly, the Court may not entertain it.
As to the second complaint, the Court has already observed that the
restriction on Mr Philis's right of access to a court infringed
Article 6 (art. 6). This being so, it considers that no useful
purpose is to be served in determining whether he has in addition
suffered discrimination as compared with other persons who are
subject to lesser limitations on the same right (see, mutatis
mutandis, the Dudgeon judgment of 22 October 1981, Series A no. 45,
p. 26, paras. 67-70).
V. APPLICATION OF ARTICLE 50 (art. 50)
69. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of
this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party."
The applicant sought compensation for damage and the reimbursement
of costs and expenses. He also requested the Court to specify that
the sums awarded should be exempt from attachment.
A. Damage
1. Pecuniary damage
70. Mr Philis asked the Court to award him "full compensation",
on the ground that the outcome of the disputed proceedings would
unquestionably have been in his favour had there been no breach of
the Convention. In this connection he claimed a total sum of
582,889,280 drachmas, plus amounts to cover, for the period from
31 December 1988 to the date of the last payment, inflation,
currency depreciation and due interest. The violation of Article 6
(art. 6) had also interfered with the exercise of his profession
during the last five years, depriving him of earnings which he
assessed at a minimum of 100,000,000 drachmas.
The Government contended that there was no causal connection between
the damage sustained and the alleged breach. If however the Court
should find otherwise, Greek law - in particular Sections 105 and
106 of the "Introductory Act" to the Civil Code (right to
compensation in the event of judicial error) - made available to the
applicant the possiblity of restitutio in integrum; in any event, a
finding of a violation would constitute sufficient just
satisfaction.
71. The Court cannot speculate as to the conclusions which the
national courts would have reached had Mr Philis been able to bring
legal proceedings himself. As no causal connection has been
established, it dismisses the claims concerning the amounts sought
from the A.O.E.K., the P.N.P. and A.S. and the alleged loss of
earnings.
2. Non-pecuniary damage
72. In respect of non-pecuniary damage, the applicant sought
compensation of 300,000,000 drachmas. He maintained that for a
period of ten years he had suffered from great psychological
pressure because he had lived in a state of uncertainty and despair
with regard to the conduct and outcome of the proceedings pending in
the courts and their repercussions on his financial position.
The Government considered that Mr Philis had not sustained any such
damage, but left the question to be determined by the Court.
73. The feeling of frustration generated by the impossibility of
assuming control of the defence of his own interests, as well as the
prolonged anxiety as to the outcome of his disputes with his
debtors, must have caused the applicant some non-pecuniary damage.
Making an assessment on an equitable basis in accordance with
Article 50 (art. 50), the Court awards him 1,000,000 drachmas under
this head.
B. Costs and expenses
74. The applicant also claimed the payment of legal costs and
lawyers' fees together with an amount for the work which he had
carried out in connection with the case.
According to the established case-law of the Court, to be awarded
costs and expenses the injured party must have incurred them in
order to seek prevention or rectification of a violation of the
Convention, to have the same established by the Commission and later
by the Court and to obtain redress therefor. It must also be shown
that the costs were actually and necessarily incurred and that they
are reasonable as to quantum.
1. Costs referable to the national proceedings
75. Mr Philis claimed 21,312,160 drachmas for lawyers' fees, as
well as for other miscellaneous expenses incurred during the
proceedings brought, from 1978 to 1986, either by himself (see
paragraph 9 above) or by the T.E.E.; he provided a detailed list of
these expenses.
According to the Government, these costs were not incurred in order
to protect the right of access to the Greek courts or to speed up
the progress of the proceedings before them; accordingly, they
cannot give rise to reimbursement.
76. The Court observes that the costs incurred by the applicant
in the Greek courts related to the substance of the disputes and not
to the problem of access to a court.
It notes nevertheless that his interventions in the proceedings
instituted by the T.E.E. against the A.O.E.K. and his own action
against the P.N.P. constituted for him the sole means whereby he
could seek to remedy the deficiency of Greek law. It therefore
takes the view, in agreement with the Delegate of the Commission,
that Mr Philis must be reimbursed the corresponding costs to the
extent that they were actually incurred, necessarily incurred and
reasonable. As some of the claims appear to be excessive, the Court
can only award him in this respect the sum of 4,000,000 drachmas,
assessed on an equitable basis.
2. Costs referable to the European proceedings
77. Mr Philis was not assisted by a lawyer before the
Commission. He claimed 6,375,000 drachmas for the work carried out
by him and 911,120 drachmas for miscellaneous and travel expenses.
The Government agreed to reimburse the costs resulting from the
applicant's journeys to Strasbourg and certain other expenses, but
in their view the sum to be awarded in this respect should
correspond to the scales established by the Commission for legal
aid. They stated that they were willing to pay 1,000,000 drachmas.
The Court observes that the applicant presented his own case before
the Commission and appeared in person before it; he incurred
substantial costs, which he has itemised. Accordingly, and having
regard to the Government's observations, it considers that on the
basis of an equitable assessment he should be awarded
1,000,000 drachmas under this head.
78. Before the Court, the President authorised Mr Philis to
submit a memorial himself and to address the Court at the hearing;
he also agreed to accord him legal aid.
Nevertheless, the applicant claimed 1,632,770 drachmas and
3,226 French francs in respect of lawyer's fees and expenses
together with 544,900 drachmas for miscellaneous expenses. He also
sought 3,750,000 drachmas to cover his own work, 300,000 for his
attendance at the hearing and 275,000 for his presence at the
delivery of the Court's judgment.
The Government and the Commission pointed out that the applicant had
not established that he had incurred commitments exceeding the
amounts paid as legal aid.
Having regard to the memorandum accompanying the claim submitted
under Article 50 (art. 50), and to the sums received from the
Council of Europe, the Court awards the applicant 1,000,000 drachmas
in respect of his lawyer's fees and expenses.
Of Mr Philis's travel expenses, only those resulting from his
participation in the hearing could taken into account, but they are
already covered by legal aid. Finally, the Court, making an
assessment on an equitable basis, considers that the applicant
should be awarded 800,000 drachmas to cover his general expenses.
C. Request for a declaration that the sums in question should be
exempt from attachment
79. The applicant asked the Court to specify in its judgment
that the sums awarded under Article 50 (art. 50) should be exempt
from attachment.
The Court takes the view that it is not in a position to accede to
this request.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a violation
of the right of access to a court, guaranteed under
Article 6 para. 1 (art. 6-1);
2. Holds unanimously that it is not necessary to determine
whether in addition a "reasonable time" within the meaning of
the same Article (art. 6-1) was exceeded;
3. Holds unanimously that it is likewise not necessary to
examine the case either under Article 13 or under
Article 14 in conjunction with Article 6 (art. 13+6,
art. 14+6);
4. Holds unanimously that the respondent State must pay to the
applicant 1,000,000 (one million) drachmas for non-pecuniary
damage and 6,800,000 (six million eight hundred thousand)
drachmas for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 27 August 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of
Mr Pettiti is annexed to this judgment.
Initialled : R.R.
Initialled: M.-A.E.
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I did not vote with the majority for a violation of
Article 6 para. 1 (art. 6-1). In my view the applicant has not been
deprived of his right to a court or of his right of access to a
court within the meaning of the Golder judgment.
It is true that ex officio subrogation, provided for in
Decree no. 30 of 31 May 1956, occurs in the event of the refusal of
the debtor (the engineer's client) to pay. Under Article 2 para. 5
of the Decree, in conjunction with Article 83 of the Code of Civil
Procedure, the creditor retains the right to intervene at any moment
in the proceedings. It does not seem to me that this provision
takes away the right to bring proceedings or is prejudicial to the
payee, even though it alters the manner in which that right may be
exercised.
I do not consider it to have been established that, where the T.E.E.
refuses to exercise the right to bring proceedings, the person
concerned is definitively deprived of his right of action except in
order to seek payment of the fees to the T.E.E. The Athens Court of
Appeal, in its judgment of 16 November 1987, did indeed state that
only the T.E.E. had capacity to bring proceedings for the recovery
of fees, but in the light of the decision of the Larissa
Administrative Court of Appeal (judgment 8/1988) it remains possible
for the payee to take proceedings in person to recover his fees or
to sue the T.E.E. if the latter refuses to institute proceedings or
has been negligent in carrying out its duties under the subrogation
system. Furthermore, the engineer also has available to him the
"subrogation action" under Article 72 of the Code of Civil
Procedure, which is a clause of general application.
Since there is no consistent and definitive case-law from the Court
of Cassation on this question of principle (judgment 309/1986 being
of limited scope), I am of the opinion that it is premature to find
the Greek Government to be in breach of Article 6 (art. 6).