[TRANSLATION]

THE FACTS

The applicant is a private limited company whose head office is in Athens. It was represented before the Court by Ms Evgenia Kyriazi and Ms Violetta Kasseri, of the Athens Bar.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 February 1992 the applicant company applied to the Ministry of the National Economy under the provisions of Law no. 1892/1990 for a subsidy to build a hotel. That statute provided that companies satisfying certain conditions were entitled to a State subsidy for their investments.

The applicant’s request was rejected in a decision of 29 June 1992.

On 30 September 1992 the applicant company lodged an application with the Supreme Administrative Court for judicial review of the above-mentioned decision. Its lawyer delivered the application into the hands of two police officers at Athens 4th police station. The police officers affixed the police station’s seal and wrote the registration number and date on the first page of the application. They did not, however, note the registration number on the record of deposit stamped onto the application itself.

On 6 February 1996 the Supreme Administrative Court ruled the application inadmissible on the following grounds:

“Article 19 §§ 1 and 2 of Presidential Decree no. 18/1989 provide that in order for an application for judicial review to be validly lodged with a public authority, it must be registered in the said authority’s register and stamped with a record of deposit. This record must mention the registration number and the date and must be signed by the official receiving the application and by the applicant ... There can be no substitute formalities for compliance with that procedure, to which the applicant himself is a party, because it is a legal requirement for the valid registration of an application. Accordingly, if an application lodged with a public authority other than the Supreme Administrative Court is incorrectly stamped, this will affect the validity of the application.

In the present case the notice of application was lodged with the Athens 4th police station and a stamp affixed which was signed by the lawyer depositing the application, the two police officers dealing with it and the senior officer at the station. However, this stamp did not bear a registration number. Admittedly, the registration number and date of deposit are indicated both on the seal next to the stamp and the first page of the appeal, but they do not appear on the stamp recording deposit of the application itself and are signed neither by the lawyer who lodged the application nor by the police officers dealing with it. Accordingly, they do not satisfy the statutory conditions of admissibility of applications.”

That judgment was finalised (καθαρογραφή) on 16 May 1997 and the applicant company obtained a copy on 13 June 1997.

COMPLAINT

The applicant company complained that the inadmissibility of its application to the Supreme Administrative Court amounted to a denial of access to the courts, contrary to Articles 6 § 1 and 13 of the Convention.

PROCEDURE

The application was lodged on 11 July 1997 and registered on 20 January 1998.

On 21 October 1998 the European Commission of Human Rights decided to give notice of the application to the respondent Government and invited them to submit their written observations on its admissibility and merits.

The Government submitted their observations on 1 March 1999, after an extension of the time-limit fixed for this purpose, and the applicant replied on 4 August 1999, also after an extension of the time-limit.

Pursuant to Article 5 § 2 of Protocol No. 11, which came into force on 1 November 1998, the case was examined by the European Court of Human Rights from that date onwards.

THE LAW

1.  Relying on Article 6 § 1 of the Convention, the applicant company complained that the inadmissibility of its application to the Supreme Administrative Court amounted to a denial of access to the courts.

The relevant parts of Article 6 § 1 of the Convention provide:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(a)  The Government submitted first of all that the application was inadmissible for failure to comply with the six-month time-limit. The final domestic decision was delivered on 6 February 1996 and from that date onwards the applicant company could have informed itself of its contents without having to wait until it was finalised. There was nothing to prove that the applicant company, which did not lodge its application with the Commission until 11 July 1997, was prevented from knowing the contents of the judgment of the Supreme Administrative Court throughout the six-month period which elapsed after it had been delivered.

The applicant company refuted that submission. It asserted that it was not until the judgment had been finalised that it had been able to find out the full reasoning followed by the Supreme Administrative Court.

Under Article 35 § 1 of the Convention the Court may only deal with a matter after all domestic remedies have been exhausted and within a period of six months from the date on which the final decision was taken.

The Court refers to its decision that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the written judgment (see the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1547, § 33). Where, as in the present case, the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting point, that being when the parties were definitely able to find out its content (see the Papachelas v. Greece judgment of 25 March 1999, to be published in Reports 1999, § 30).

In the present case the Supreme Administrative Court’s judgment was finalised on 16 May 1997. The applicant company obtained a copy of it on 13 June 1997 and lodged an application with the Commission less than six months later, on 11 July 1997. Having regard to the foregoing, the Court considers that the application was not out of time for the purposes of Article 35 § 1 of the Convention.

(b)  The Government affirmed next that Article 6 of the Convention did not apply to the present case. The right to a subsidy was neither an acquired right nor a civil right. The Government stressed that the subsidies in question pursued a public-interest aim and were awarded by the State, which had a wide margin of appreciation in that connection. In any event, the Government maintained that the ministerial decision rejecting such an application constituted an administrative measure of which the merits were not subject to judicial review.

The applicant company replied that Law no. 1892/1990 was in fact a call for tenders to investors: it promised them the benefit of certain advantages if they made an investment envisaged by that statute. It did not institute a mere opportunity, but a right to obtain such a subsidy where the statutory conditions were met. Furthermore, the applicant company stressed that the present case concerned a private dispute between an investor and the Greek State. It submitted, lastly, that the outcome of the proceedings in the Supreme Administrative Court was directly decisive for its right to obtain a subsidy, that court being the only one with jurisdiction to quash the ministerial decision refusing its application.

The Court has to ascertain whether there was a dispute (contestation) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see, among other authorities, the Neigel v. France judgment of 17 March 1997, Reports 1997-II, p. 409, § 38).

In the present case Law no. 1892/1990 provides that a company is entitled to a State subsidy subject to certain conditions. The Court considers that the mere fact that the subsidy is awarded by the State does not in itself exclude the existence of a civil right. The Court notes first of all that disputes arising from a refusal to award such a subsidy present, at first sight, pecuniary aspects. Moreover, in deciding whether or not to award the subsidy, the relevant minister does not exercise his discretionary prerogatives. His task is to judge the circumstances of every company and award the subsidy in question if the statutory conditions are satisfied. The decision taken can subsequently be challenged in the Supreme Administrative Court whose final decision will determine the civil right in question.

Having regard to the foregoing considerations, the Court considers that the applicant company’s claim related to a civil right, so that Article 6 § 1 of the Convention is applicable to the present case.

(c)  With regard to the merits, the Government asserted that the Supreme Administrative Court’s dismissal of the application was the foreseeable consequence of the error made when the application was lodged. Since the applicant company’s lawyer was also responsible for that error, the applicant could not complain of an infringement of its right of access to a tribunal.

The applicant company replied that responsibility lay with the police officers to stamp the application correctly and, in their capacity as public officials, to take all necessary steps to ensure that it was valid.

The Court has made a preliminary examination of the arguments submitted by the parties. It considers that they raise issues of fact and of law which cannot be resolved at this stage of the examination, but require an examination of the merits.

Accordingly, this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court notes further that no other ground for declaring it inadmissible has been established.

2.  Relying on Article 13 of the Convention, the applicant company complained of the lack of an effective remedy in a national court to enforce its rights.

Article 13 of the Convention provides:

“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.”

The Court observes that the complaint based on Article 13 of the Convention concerns the same facts as those relating to the complaint raised under Article 6 § 1. It must therefore be treated in the same way.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Erik Fribergh Marc Fischbach

Section Registrar  President

S.A. “Sotiris and Nikos Koutras ATee” v. Greece DECISION


S.A. “Sotiris and nikos koutras atee” v. Greece DECISION