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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BEÏS v. GREECE - 22045/93 [1997] ECHR 17 (20 March 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/17.html
Cite as: [1997] ECHR 17, (1998) 25 EHRR 335, [1998] 25 EHRR 335, 25 EHRR 335
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In the case of Beis v. Greece (1),
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 Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr L. Wildhaber,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 November 1996 and
24 February 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 44/1996/663/849. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the Greek Government
("the Government") on 13 March 1996, within the three-month period laid
down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,
art. 47). It originated in an application (no. 22045/93) against the
Hellenic Republic lodged with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) by a Greek national,
Mr Konstantinos Beis, on 18 March 1993.
The Government's application referred to Articles 44 and 48 (b)
of the Convention (art. 44, art. 48-b) and Rule 32 of Rules of
Court A. The object of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 6 para. 1 and 13 of the
Convention (art. 6-1, art. 13) and Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d), the applicant stated that he wished to take part in the
proceedings and designated the lawyer who would represent him.
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. 4 (b)). On 30 March 1996, in the presence of the
Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh,
Mr J. De Meyer, Mr L. Wildhaber, Mr D. Gotchev and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr J.M. Morenilla, substitute judge, replaced Mr Walsh,
who was unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 19 September 1996 and the applicant's memorial
on 23 September.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
27 November 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Adviser;
(b) for the Commission
Mr A. Perenic, Delegate;
(c) for the applicant
Mr C. Chryssanthakis, professor of law and
member of the Athens Bar, Counsel.
The Court heard addresses by Mr Perenic, Mr Chryssanthakis and
Mr Georgakopoulos, and also their replies to questions put by four of
its members.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Beis lives in Athens. He is professor of the law of
civil procedure in the University of Athens.
7. In March 1992 the head of the Legal Service of the
Greek Chamber of Technology (Techniko Epimelitirio Ellados - "the
TEE"), a public-law entity (nomiko prosopo dimosiou dikeou) with all
the immunities and other privileges of the State, instructed the
applicant - orally and saying that he was "acting on behalf of the
TEE" - to draw up two expert reports on proceedings brought against the
TEE by Mr Philis and Mr Samaras; it was agreed that Mr Beis would be
paid 7,500,000 drachmas (GRD) for the two reports. Mr Philis, an
engineer, had brought two actions for damages against the TEE, which
he accused of having badly defended his interests in an action to
recover fees. Mr Samaras, a lawyer with a long-term contract with the
TEE, had brought proceedings against it to challenge the termination
of that contract.
8. Mr Beis submitted the two reports to the head of the TEE's
Legal Service on 22 April 1992. However, the agreed fees were not paid
to him. According to the applicant, the relevant member (paredros) of
the Court of Audit (Elenktiko Synedrio) responsible for scrutinising
the TEE's expenditure before payments were made orally opposed the
payment on the ground that the reports could have been produced by the
TEE's Legal Service and that the expenditure was therefore not lawful.
9. On 4 May 1992 the TEE's Governing Body requested a
working party of seven experts - including the applicant - to (a) draft
a bill designed to amend the rules providing for the TEE's subrogation
to engineers' rights in their actions to recover fees, in the light of
the European Court of Human Rights' judgment on the matter; (b) prepare
a bill amending the provisions on the functioning of the TEE's
Legal Service; (c) study the actions brought by Mr Philis, in order to
assist the TEE's Legal Service by means of an expert opinion;
(d) express an opinion on the prospects of success of the appeals
pending in the case brought against the TEE by Mr Samaras; and (e) give
any other advice likely to facilitate the TEE's work. It was expressly
stated in the Governing Body's decision that the working party's tasks
were to be "carried out jointly and with the cooperation" of all its
members.
The working party was to submit its report by 15 June 1992.
The remuneration was to be GRD 10,500,000, which was to be paid to the
members of the working party after submission of the report, by a
decision of the Governing Body and according to the work each had done.
It was also stipulated that if the report was submitted late, the
agreement would not be valid and the members of the working party would
forgo any action against the TEE to recover fees.
10. On 8 May 1992 five members of the working party informed the
TEE's Legal Service that they had instructed Mr Beis to advise the TEE
on the cases brought against it by Mr Philis and Mr Samaras. The
applicant was to be paid GRD 7,500,000 out of the total sum offered by
the TEE. The other tasks would be carried out by the other members,
who would share the remainder of the sum.
11. On 12 June 1992 the vice-president of the TEE acknowledged
receipt of the two expert reports submitted by the applicant on
22 April 1992 (see paragraph 8 above).
12. On 9 July 1992 the TEE issued a warrant (no. 3495) in favour
of Mr Beis for payment of GRD 7,500,000 as remuneration for his
membership of the working party between 5 May and 12 June 1992.
However, on 29 July 1992 an auditor (epitropos) from the
Court of Audit - carrying out the prior scrutiny of the lawfulness of
the expenditure to which the TEE is subject under
Presidential Decree no. 766/1947 - refused to authorise payment of that
sum, taking the view that the expenditure was unlawful
(decision no. 20 of 29 July 1992); in his view, the report drawn up by
the working party had been within the competence of the TEE's
Legal Service. The TEE argued that the expenditure was lawful and on
18 August 1992 resubmitted the warrant for payment for approval by the
Court of Audit's auditor. The latter, however, persisted in his
refusal and on 16 September 1992 sent the case to the First Division
of the Court of Audit.
13. On 5 October 1992, as a result of some procrastination on the
TEE's part in paying him the agreed remuneration, the applicant made
an ex parte application to a single judge of the
Athens Court of First Instance (Monomeles Protodikio) for an order to
pay (diatagi pliromis). His application was granted on
12 October 1992. The order to pay (no. 12207/92) was based on the
following documents: the decision of the TEE's Governing Body of
4 May 1992, the acknowledgment of receipt of 12 June 1992 and the
Governing Body's approval of 9 July 1992 for payment of the fees to the
applicant.
On 21 October 1992 Mr Beis served the order to pay and the
notice to comply on the TEE, but the latter made no payment. He served
them again on 11 November 1992, after the time during which the TEE
could have made an application to have the order set aside (anakopi)
had expired (see paragraph 15 below).
On 24 November 1992 the First Division of the Court of Audit,
to which the auditor had sent the case, ruled as follows
(decision no. 631/1992):
"In order that special problems of major importance arising in
connection with the TEE's activities may be studied, special
advisory committees or working parties may be set up, composed
of technicians or researchers who are members of the TEE and
experts from other fields (lawyers etc.) who are not members
of it, on the basis of a decision by the Governing Body (or a
regional section of the TEE) for which due reasons must be
given (as to the advisability of establishing such a body, its
objectives, etc.).
These special advisory committees or working parties may
sometimes be asked to study and carry out a specific
`scientific project' connected with the general activities and
functioning of the TEE and not solely of the specialised
standing scientific committees (section 10 of
Law no. 1486/1984), provided that the statutory requirements
are satisfied, even where such a project comes within the
competence of the TEE's standing bodies.
These special committees or working parties may, therefore, be
given powers to study and carry out a scientific project
relating to problems of major importance which normally come
within the competence of the TEE's Legal Service under
Article 1 of Presidential Decree no. 883/1980.
As part of their task, these special committees or working
parties draw up their opinion after a preliminary meeting and
exchange of views ...; only a procedure of this kind makes it
possible to clarify the issue being dealt with and to
facilitate a thorough study of it by the relevant executive
bodies of the TEE.
An opinion given merely by a single member of one of these
committees or working parties therefore does not fulfil the
law's intention, even if that person acts under powers granted
him by the other members, since in that eventuality the
participation of those other members in the collegiate bodies
would be pointless.
The remuneration which may be paid to the members of these
special committees or working parties, as provided in
section 14 (2) of Law no. 1486/1984 and in Article 1(d) of the
legislative decree of 10 May 1946 (ratified by
Law no. 28/1946), is laid down by the TEE's Governing Body.
If the recipient is a civil servant or a salaried employee in
the public sector (State, public-law entities, etc.) referred
to in section 1 (6) of Law no. 1256/1982 ... - a university
professor, for example - this remuneration must not exceed the
threshold laid down in section 3 (4) of Law no. 1256/1982, in
other words 30% of the office-holder's usual total salary, as
laid down in joint decision no. 4391/2-3-1982 of the
Prime Minister and Minister of Finance ..., adopted under
section 3(4) of the aforementioned Law, which includes the
basic salary, the length-of-service allowance, the
study allowance, the family allowance, the corrective amount,
the wage-indexation allowance and other allowances specific to
certain categories of employee or civil servant.
The setting up of the working party to study `jointly and in
cooperation' the special issues mentioned in decision no. 1238
adopted by the TEE's Governing Body at its 30th meeting on
4 May 1992 and to carry out the tasks set out in that decision
must be regarded as lawful ..., regard being had to the
capital importance of the issues in question for the
functioning of the TEE and the inability of the TEE's
Legal Service, which had competence in this instance, to deal
with the issues satisfactorily.
The carrying out of this project individually by Mr Beis, one
of the members of the working party, who drew up his opinions
without any preparatory meeting being held or any exchange of
views on the issues between the members of the working party,
does not comply either with the TEE Governing Body's decision
no. 1238/4 May 1992, whereby the members of the working party
were instructed to carry out the whole project `jointly', or
with the provisions of Article 15 of the presidential decree
of 27 November and 14 December 1926.
The joint statement of 8 May 1992 by five of the members of the
working party, whereby they entrusted the carrying out of part
of the project to Professor Beis, was made in contravention of
the general principles of the functioning of collegiate
administrative bodies, since there is nothing to show that all
the (seven) members of the working party were invited to a
joint meeting to take a decision; furthermore, it contravenes
the terms of implementation of the whole project laid down by
the Governing Body of the TEE in decision no. 1238/1992 and the
provisions of Article 15 of the presidential decree of
27 November and 14 December 1926.
The expenditure which was the subject of the TEE's payment
warrant was accordingly not lawful, by reason of, inter alia,
the irregularities in the project's implementation.
In this connection, it is of little importance that it has not
been proved in the instant case that the remuneration of a
public servant for participation in a public-sector working
party was within the limits laid down in section 3(4) of
Law no. 1256/1992. The payment warrant in issue must
accordingly not be approved."
14. On 3 December 1992, when the judicial order to pay had become
final by virtue of Article 633 of the Code of Civil Procedure
(see paragraph 15 below), Mr Beis applied to the Bank of Greece for
attachment of a sum of GRD 7,500,000 in the TEE's account at the bank;
the bank, however, did not react.
In the meantime, pursuant to the order to pay obtained
ex parte, the TEE issued two new payment warrants (nos. 93 and 94) for
a total of GRD 7,625,000. On 12 February 1993, however, the auditor
in charge of the file at the Court of Audit refused to authorise
payment on the ground that the Court of Audit was not bound by the fact
that the judicial order to pay had become final after expiry of the
time allowed for any application to have it set aside. Under the
Court of Audit's settled case-law (see paragraph 16 below), the effect
of orders of this kind is indeed limited and does not correspond to
that referred to in Article 17 para. 3 of
Presidential Decree no. 774/1980 on the Court of Audit
(see paragraph 23 below). An ex parte order to pay therefore does not
constitute a judicial act comparable to a final court decision.
II. Relevant domestic law and practice
A. Ex parte orders to pay
1. The Code of Civil Procedure
15. The relevant provisions of the Code of Civil Procedure are as
follows:
Article 623
"Under the special procedure set out in Articles 623-34 of the
Code of Civil Procedure, an order to pay may be sought in
respect of a pecuniary claim or one pertaining to securities
if the debt and the amount owed are proved by an officially
recorded document or a private one."
Article 625
"The justice of the peace shall be competent to issue an order
to pay where the claim comes within the jurisdiction of his
court. In all other cases a single judge of the court of
first instance shall be competent. No hearing shall be held
upon an application for an order to pay."
Article 627
"The judge shall rule on the application as soon as possible,
without summoning the debtor to attend ...; the judge shall,
however, be entitled
(a) to require the applicant to attend to give
explanations answering his application;
..."
Article 628
"1. The judge shall dismiss the application
(a) if the legal requirements for making an order to pay
are not satisfied;
..."
Article 629
"The judge shall grant the application in so far as it is, in
his view, founded in law and in fact, and shall order the
debtor to pay the sum due and legal costs ..."
Article 631
"A judicial order to pay shall be enforceable."
Article 632 para. 1
"A debtor against whom an order to pay has been issued may
apply to have it set aside within fifteen days of service of
the order. The application to set aside shall be made to the
court having jurisdiction ratione materiae to hear the case."
Article 633
"1. If an application to set aside has been properly made
within the time prescribed by law and the reasons given for it
are lawful and well-founded, the court shall set aside the
order to pay; otherwise it shall dismiss the application to set
aside and confirm the order to pay.
2. If the application to set aside has not been made within
the time prescribed by law, the party in favour of whom the
order to pay has been made may again serve that order on the
debtor, who shall again be entitled to apply to have it set
aside within a period of ten days ... If no application to set
aside has been made within that time, the order to pay shall
become final and may only be challenged by means of proceedings
to reopen the case."
2. The Court of Audit's case-law
16. In a decision adopted at the tenth session of the full court
on 6 March 1985 the Court of Audit held:
"It follows from the [aforementioned] provisions ... that when
verifying the lawfulness of expenditure, the Court of Audit
also, if necessary, verifies the entitlement of the creditor
of the State, local authority or other public-law entity. If
the issue of entitlement has become res judicata (within the
meaning of Articles 322 et seq. of the Code of Civil Procedure)
as a result of a judgment by a civil court, that judgment is
binding on the Court of Audit. It is clear that the
estoppel per rem judicatam which thus prevents the
Court of Audit reopening that issue derives from the fact that
the civil court has examined the merits, in law and in fact,
of the claim ...
If, further, it is taken into consideration that by Article 633
para. 2 (b) of the Code of Civil Procedure, an order to pay
does not create an estoppel per rem judicatam but merely
'becomes final', it may be asserted that the effect of an
ex parte order to pay, just like its limits in objective and
subjective terms, is not identical with that of a
court decision and of its functions and limits.
This is because an order to pay is not a court decision and,
by Articles 631 and 904 para. 2 (b) of the
Code of Civil Procedure, is made, after the special procedure
laid down in Articles 623 et seq. of that Code, solely to
provide an enforceable instrument.
The review undertaken when an application is made under
Articles 632 and 633 of the Code of Civil Procedure to set
aside an order to pay does not cover the right in issue but
relates merely to the validity of the order to pay as an
enforceable instrument.
In the light of the foregoing, accepting the contrary argument
that the effect of an order to pay does not differ from that
of a court decision or is not of limited scope is to call in
question the constitutionality of the effect of an order to
pay, as the latter is made without the debtor being summoned
and without any adversarial hearing.
It must therefore be considered that the effect of an order to
pay is merely to deprive the defendant of his right to raise
preliminary objections unreasonably, such an estoppel
resembling ... the negative aspect of the
estoppel per rem judicatam created by a court decision (in that
the objections may not be considered again).
Consequently, the effect of an order to pay does not extend to
a finding as to the right in issue (the positive aspect of
res judicata); that being so, the Court of Audit is not bound
by such an order when it verifies the lawfulness of
expenditure, the claim merely being made enforceable by such
an order.
None of the foregoing deprives an order to pay of its
enforceability, although naturally that does not prejudice the
provisions on immunity from execution enjoyed under section 8
of Law no. 2097/1952 by the Greek State and, as a result of a
broad construction of that statute, by local authorities and
other public-law entities.
...
Acknowledgment and settlement of expenditure, like the orders
to pay relating to it, presuppose that the right of the
creditor of the State, local authority or other public-law
entity has been proved by means of relevant documents, as it
is not sufficient to rely on a claim whose enforceability
derives from a judicial order to pay, even if that order has
become final.
It must accordingly be accepted that when verifying the
lawfulness of expenditure, the Court of Audit is not bound by
the limited effect of the order to pay ..., as that effect does
not have the characteristics of the binding force referred to
in paragraph 3 of Article 17 of
Presidential Decree no. 774/1980 on the Court of Audit.
It follows that the right conferred by the effect of the order
to pay on the person who is claiming to be entitled to the
amount of the expenditure does not ipso facto make that
expenditure lawful and that the Court of Audit is under an
obligation to verify the lawfulness of that expenditure in all
its aspects."
B. Enforcement
1. Law no. 2097/1952 regulating certain cases to which the
Law on the collection of public receipts relates
17. Section 8 of Law no. 2097/1952 provides:
"Enforcement of judicial decisions (of civil or
criminal courts, the Supreme Administrative Court and the
Court of Audit) whereby the State is ordered to pay a debt or
legal costs shall be prohibited, as shall be that of any
authority to execute to the effect that the State must pay such
a debt.
Service of a demand for payment of such debts shall be
prohibited and if it is effected nonetheless, such service
shall in no way bind the State."
2. Case-law
18. The courts have accepted that the statutory provisions whereby
a public-law entity enjoys the same rights as the State in
judicial matters (Court of Cassation, judgment no. 108/71,
"Greek Lawyers' Review" no. 38, p. 317) or "enjoys, in general, on the
same footing as the State, all the judicial, administrative, financial
or other immunities and rights of the State" (decision no. 2311/1979
of the Athens Court of First Instance, "Greek Lawyers' Review" no. 38,
p. 762) have the consequence that the provisions of section 8 of
Law no. 2097/1952 apply to an entity of that kind.
The Court of Cassation has ruled (in judgment no. 1039/1995)
that section 8 of Law no. 2097/1952 is consistent with the
Greek Constitution and the European Convention in these terms:
"The privilege of immunity from execution enjoyed by the
Greek Railways Board ('the OSE') is not contrary to Article 4
para. 1 of the Constitution, relating to the equality of
citizens before the law, as that provision excludes only the
creation by the legislature of privileged positions with regard
to certain persons; it does not, however, preclude the
legislature from making special rules ... where they are
necessary in the interests of society or the public. Such
reasons exist here because the preferential treatment given to
the OSE is justified by the vital social objective the OSE
pursues, namely the provision of rail transport; it follows
that the State has a direct interest in ensuring that the OSE
operates without hindrance. Nor is this privilege contrary to
Article 20 of the Constitution guaranteeing citizens' rights
to legal protection by the courts ... Furthermore, extension
to the OSE of the privilege of immunity from execution enjoyed
by the State is not contrary either to Article 1 of the
First Protocol (P1-1) of 20 May 1952 ... or, lastly, to
Article 6 para. 1 (art. 6-1) of the Rome Convention of
4 November 1950 ..., as those Articles (P1-1, art. 6-1)
regulate other matters and not questions such as the present
one, with which they are quite unconnected."
As to the TEE, Article 41 of the presidential decree of
27 November and 14 December 1926 on the establishment of the TEE
provides:
"The TEE shall correspond independently and enjoy all the
privileges and immunities of the State, taking precedence
immediately after the National Engineering School."
C. Garnishee proceedings
19. The relevant Articles of the Code of Civil Procedure provide:
Article 985
"1. Within eight days of service of the notice of the
garnishee order, the garnishee shall be required to declare
whether the attached debt exists, whether the attached asset
is in his possession and whether the asset is subject to
another garnishee order emanating from someone else and, if so,
for what sum.
2. The declaration referred to in paragraph 1 shall be made
orally to the clerk to the justice of the peace for the
declarant's place of residence, who shall make a record of it.
3. Failure to make a declaration shall be tantamount to a
negative declaration. Failure to make a declaration or the
making of an inaccurate one shall render the garnishee liable
in damages to the creditor."
Article 986
"Within thirty days of the making of the declaration referred
to in Article 985, the creditor shall be entitled to have the
declaration set aside by the court ... An application for
compensation under Article 985 para. 3 may be made at the same
time."
20. In judgment no. 3/1993 the Court of Cassation, sitting as a
full court, held that Greek banks were prohibited by their
confidentiality obligations from supplying information about
bank accounts even where the account-holder had consented to
disclosure. The existence of that prohibition - failure to comply with
which was a criminal offence - meant that a bank's failure to make the
declaration referred to in Article 985 of the Code of Civil Procedure
was not tantamount to a negative declaration within the meaning of that
Article and could not be made the subject of an application to set
aside under Article 986. Thus the law indirectly prohibited
attachments of assets in the hands of Greek banks, but that did not
impair the legal protection afforded by court decisions or
judicial orders to pay obtained ex parte. That conclusion was also
confirmed by the fact that the legislature had not added to the rules
on bankers' confidentiality obligations a provision expressly
permitting such attachments (Dike, vol. 5, May 1994, pp. 497-506).
D. Relevant provisions relating to the TEE
21. Article 1 of Presidential Decree no. 883/1980 provides:
"There shall be set up within the TEE a Legal Service with the
following duties: (a) to be responsible for the conduct of
litigation and proceedings to which the TEE is a party and the
protection of the TEE's legal and non-legal interests before
all judicial or administrative authorities ...; (b) to assist
the TEE's organs and departments by giving opinions on legal
questions submitted to it; (c) to produce the drafts of bills,
decrees, etc., suggested by the TEE; and (d) to draw up
contracts of all types between the TEE and third parties."
In addition, by Article 15 of the presidential decree of
27 November and 14 December 1926 establishing the TEE:
"... If necessary, special committees shall be set up to
consider specific problems or working parties to implement a
specific scientific project; in addition to [members of the
TEE], specialists in other fields who are not members of the
TEE may also sit on these ..."
The TEE's expenditure is dealt with in the single Article of
Presidential Decree no. 766/1974, which provides:
"The following public-law entities shall not incur expenditure
without prior authorisation from the Court of Audit: ...
(2) The Greek Chamber of Technology (TEE) ..."
E. The Constitution
22. Article 98 of the Constitution provides:
"1. The Court of Audit shall be competent, in particular,
(a) to scrutinise expenditure by the State,
local authorities or other public-law entities made subject to
its control by special laws ...
2. The powers of the Court of Audit shall be determined and
exercised in accordance with the law ...
3. The judgments of the Court of Audit in the cases referred
to in paragraph 1 shall not be subject to review by the
Supreme Administrative Court."
F. The Court of Audit's control of public expenditure
23. Article 17 of Presidential Decree no. 774/1980 on the
Court of Audit provides:
"1. The Court of Audit
(a) ...
(b) shall, under Article 98 of the Constitution,
scrutinise the expenditure of the State and local authorities
and other public-law entities made subject to this control by
special laws, in order to verify that each item of expenditure
is charged to an appropriation authorised by law and that it
has been incurred in accordance with the provisions of the
Code of Public Accounts and the other relevant statutes or
regulations.
2. ...
3. In the exercise of its powers of review, the
Court of Audit may, if necessary, examine any ancillary issue
that arises, subject to the provisions on res judicata.
4. ...
5. The Court of Audit shall not have jurisdiction to review
the appropriateness of administrative acts.
..."
The procedure for prior scrutiny of expenditure (before
payment) is set out in Article 21 of the decree, which provides:
"1. If the scrutiny carried out shows that the requirements
of paragraph 1 (b) of Article 17 are, in respect of a given
item of expenditure, wholly or partly unsatisfied, the
competent member or auditor shall, in a reasoned decision,
refuse to approve the payment warrant issued by the authority
concerned and shall return the warrant with a copy of his
decision to that authority.
If the payment warrant is resubmitted to him, the relevant
member or auditor may either approve it - if the impediments
to approval have in the meantime be removed - or send it with
his report to the appropriate division of the Court of Audit,
which shall rule ...
The appropriate division of the Court of Audit ... may, on
account of the major importance or public interest of the
question raised, refer the case to the full court of the
Court of Audit ...
2. If the payment warrant has not been approved, the
appropriate Minister may seek the requisite approval from the
Court of Audit on his own responsibility ...
If the warrant is approved on the Minister's responsibility,
Principal State Counsel at the Court of Audit shall file a
report with the Minister of Finance, the Cabinet and Parliament
stating why payment has not been approved. If Parliament ...
does not ratify the warrant thus approved, the Court of Audit,
sitting as a full court, shall order that the Minister
concerned shall be liable for the amount stipulated in the
warrant.
..."
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Beis applied to the Commission on 18 March 1993. He
maintained that the TEE's refusal to comply with a final order to pay
and the fact that in domestic law there was no means of compelling the
TEE to comply infringed Articles 6 para. 1 and 13 of the Convention
(art. 6-1, art. 13) and Article 1 of Protocol No. 1 (P1-1).
25. The Commission (First Chamber) declared the application
(no. 22045/93) admissible on 11 January 1995. In its report of
5 December 1995 (Article 31) (art. 31), it expressed the unanimous
opinion that there had been a violation of Article 6 para. 1 of the
Convention (art. 6-1) and Article 1 of Protocol No. 1 (P1-1) and that
no separate issue arose under Article 13 of the Convention (art. 13).
The full text of the Commission's opinion is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
26. In their memorial the Government submitted that the applicant's
application must be declared inadmissible or be dismissed as being
unfounded.
27. The applicant requested the Court to
"make a formal finding that the Hellenic Republic has committed
the violations, to award [him] compensation for the pecuniary
and non-pecuniary damage [he has] sustained and the costs and
expenses he has incurred in the preparation of this
application, under Article 50 of the Convention (art. 50)".
AS TO THE LAW
THE GOVERNMENT'S PRELIMINARY OBJECTION
28. As they had done before the Commission, the Government
maintained that Mr Beis had failed to exhaust domestic remedies as he
had not brought a civil action in the ordinary courts (as opposed to
making an ex parte application for a payment order) or applied to the
Court of Audit for an order setting aside its decision no. 631/1992
(see paragraph 13 above) or challenged the Bank of Greece's implied
refusal to advise him whether or not the TEE had funds at that bank.
29. The applicant argued that the TEE had not applied - as it was
entitled to do under Article 633 of the Code of Civil Procedure
(see paragraph 15 above) - to have the payment order set aside. That
order had therefore become final and afforded him effective
judicial protection as his debtor could only have obtained release from
its debt to him by making an application for the proceedings to be
reopened, and it had not done so. If he, as a creditor, had then
brought a civil action, it would have been declared inadmissible on the
ground that he had no legal interest. Moreover, he could not have been
expected to bring lengthy and costly civil proceedings when his debt
was already protected by a final order for payment that was enforceable
and could not be challenged by the TEE.
As to the second limb of the objection, any further application
to the Court of Audit would have been pointless since, under its
settled case-law, it did not consider itself bound by an order to pay
(see paragraph 16 above).
Lastly, with respect to the third limb of the objection, a
challenge would have had no practical effect, owing to the TEE's
immunity from execution and the fact that the courts had held that
creditors could not attach their debtors' bank deposits
(see paragraphs 17 and 20 above).
30. The Commission had already considered the objection. In its
decision on admissibility it had decided to examine the three limbs
when considering the merits.
31. The Court is not minded, however, to follow the Commission's
approach in this regard. It notes at the outset that the instant case
is concerned with a private individual's inability to secure payment
of his remuneration for work done for a public-law entity because of
the opposition of the body responsible for verifying the lawfulness of
public expenditure and notwithstanding an order to pay issued by a
judge of the court of first instance.
32. Under Article 26 (art. 26) normal recourse should be had by an
applicant to remedies which are available and capable of remedying the
breaches alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice. Article 26
(art. 26) also entails a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that an effective remedy existed at the relevant time. Once they
have done so, it falls to the applicant to establish that the remedy
advanced by the Government was ineffective in the particular
circumstances of the case or that there existed special circumstances
absolving him from having to make use of it.
In applying the rule of exhaustion, the Court must take
realistic account not only of the existence of formal remedies in the
legal system of the Contracting Party concerned but also of the context
in which they operate and the personal circumstances of the applicant
(see the Akdivar and Others v. Turkey judgment of 16 September 1996,
Reports of Judgments and Decisions 1996-IV, pp. 1210-11, paras. 66-69).
33. So far as the first limb of the objection is concerned, the
Court notes that Mr Beis's remuneration was considered to be unlawful
both by the relevant member of the Court of Audit - when the agreement
between the applicant and the head of the TEE's Legal Service was
concluded (see paragraph 8 above) - and by the auditor of the
Court of Audit, when the applicant was officially instructed to draw
up his report as a member of the working party established by the TEE
(see paragraph 12 above). Despite initial hesitation (see paragraph 13
above), the TEE still wished to pay Mr Beis; it did not seek to have
the order to pay set aside and even issued two new warrants for payment
after the order to pay had become final within the meaning of
Article 633 para. 2 of the Code of Civil Procedure
(see paragraphs 13-14 above).
34. In his book on civil procedure the applicant himself
recognises, in the chapter on ex parte orders to pay, that the fact
that a debtor has lost the right to challenge such an order and to
apply for it to be set aside does not mean that the order to pay
creates an estoppel per rem judicatam, which is a characteristic of
court decisions. In spite of its binding nature, an order to pay -
which emanates from a judge - does not create an irrebuttable
presumption that the legal act that gave rise to the debt was valid
(K. Beis, Politiki Dikonomia, A. Sakkoulas, Athens, vol. IV,
pp. 157-58, 199 and 255-56).
Those statements are of particular importance in the
circumstances of the present case as the applicant's remuneration
represented public expenditure incurred by a public-law entity, the
TEE, and, as such, subject to prior scrutiny by the Court of Audit.
35. The applicant, a professor of the law of civil procedure, was
well placed to assess whether, having regard to the aforementioned
position taken up by the relevant organs of the Court of Audit and
especially the full court's decision of 6 March 1985 (which, though not
connected with the facts of the instant case, was delivered well before
they arose), an application for an order to pay was sufficient and
appropriate to ensure that he received his remuneration
(see, mutatis mutandis, the Melin v. France judgment of 22 June 1993,
Series A no. 261-A, p. 12, para. 24); the Court of Audit had said in
that decision that, when considering the lawfulness of public
expenditure, it was bound only by judicial decisions on the merits -
which, unlike orders to pay, concerned a determination of the right
underlying the debt (see paragraph 16 above).
36. The Court notes that Mr Beis had - as indeed he admitted - a
choice between applying ex parte for an order to pay and bringing a
civil action in the ordinary courts. The first course, which he chose
and which was admittedly quicker and cheaper than the latter, did not
suffice because of the Court of Audit's supervising organs' refusal to
authorise the expenditure for payment of his remuneration, in the light
notably of that court's decision of 6 March 1985. In contrast, the
second course, which the applicant could have taken from the time the
TEE hesitated to pay him the sum due (see paragraph 13 above), would
have enabled him to rely on a decision that would have been binding on
the relevant organs of the Court of Audit and would even have made it
possible to have the decision of the First Division of that court set
aside (ibid.).
In the circumstances of the case, the Court considers that the
applicant did not make use of an adequate and effective remedy such as
would have afforded the Greek authorities the opportunity of putting
right the alleged violations. The first limb of the objection of
failure to exhaust domestic remedies is therefore well-founded.
37. That conclusion makes it unnecessary to consider the other
limbs of the objection.
FOR THESE REASONS, THE COURT
Holds by eight votes to one that, as domestic remedies have not
been exhausted, it is unable to consider the merits of the
case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 20 March 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mr Ryssdal is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE RYSSDAL
(Translation)
I regret that I am unable to concur in the opinion set out in
paragraphs 32 et seq. of the judgment.
Notwithstanding that the TEE may not have been authorised to
conclude the agreement concerned with Mr Beis, that agreement was made
and Mr Beis performed his part of it. After the TEE had issued the
payment warrant, Mr Beis made an application to the appropriate judge,
who granted him an order to pay, which under Articles 623 et seq. of
the Greek Code of Civil Procedure is an enforceable instrument
(Article 631) and becomes final if no application is made within the
prescribed time to have it set aside (Article 633 para. 2,
last sentence).
Under Greek law - as indeed under the law of several other
countries - a creditor is given a choice between bringing ordinary
proceedings or following the simplified procedure for obtaining an
ex parte order to pay. Where the law offers several courses of action,
it is for the person concerned to choose the one that appears to him
to be most suitable in his case.
For reasons which he does not have to account for, Mr Beis
chose to apply for an order to pay. Had the debtor wished to challenge
the lawfulness of that order, it could have had the order set aside and
the creditor would subsequently have had to bring ordinary proceedings.
Since no application was made to have the order to pay set
aside, it became final and enforceable. The fact that, unlike a
judgment delivered in ordinary proceedings, an order to pay does not
give rise to an estoppel per rem judicatam is not decisive.
As soon as the order to pay was made, the applicant was
entitled to payment of the amount stated in it. When faced with the
Court of Audit's refusal, he was therefore under no obligation to bring
ordinary civil proceedings, irrespective of whether such proceedings
would have been declared inadmissible because he had no interest in
bringing them.
I conclude that the applicant exhausted domestic remedies
within the meaning of Article 26 of the Convention (art. 26).