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THE FACTS

The applicant, Mr Ioannis Karahalios, is a Greek national who was born in 1942 and lives in Athens.

A.  The circumstances of the case

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

The applicant is a civil engineer and building contractor. The present case concerns proceedings brought by the applicant for payment of the balance due for work done under a public works contract.

On 16 November 1993 the Tripolis Administrative Court of Appeal (Τριμελές Διοικητικό Εφετείο) allowed his claim and determined the amounts to be paid him by the treasury of the Arcadia prefecture (judgment no. 175/1993).

On 15 March 1994 the Arcadia prefecture appealed on points of law.

On 1 March 1999 the Supreme Administrative Court dismissed the appeal as being out of time (judgment no. 612/1999). Judgment no. 175/1993 then became final. However, despite the steps taken by the applicant the authorities have not yet paid him the sums due.

B.  Relevant domestic law and practice

1. Section 8 of Law no. 2097/1952 regulating certain cases to which the Law on the Collection of Public Receipts relates used to contain the following provision:

“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 that of any authority to execute by which 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.”

The Court of Cassation had ruled that section 8 of Law no. 2097/1952 was consistent with the Greek Constitution and the Convention (judgment no. 1039/1995).

2. Subsequently, at its tenth plenary session on 14 February 1999, the Court of Audit held that, in the light of Article 6 § 1 of the Convention, it should be possible to bring enforcement proceedings against the State as well.

3. Article 95 § 4 of the Constitution, as amended following the constitutional reform of April 2001, now provides:

“... Judicial decisions shall also be enforceable against the State, local authorities and public-law entities ...”

In a recent judgment the Court of Cassation, sitting in plenary session, held that section 8 of Law no. 2097/1952 ran counter to Article 6 of the Convention and that it should be regarded as having been repealed, particularly since the constitutional reform of April 2001.

COMPLAINTS

The applicant complained under Articles 2, 3, 4, 6 § 1, 7 and 8 of the Convention and Article 1 of Protocol No. 1 about the authorities’ refusal to comply with judgment no. 175/1993 of the Tripolis Administrative Court of Appeal. He stated that, on account of that refusal, he had been unable to meet his obligations and honour his debts, which had even resulted in his being sentenced to seven months’ imprisonment.

THE LAW

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2. The applicant complained that the authorities’ refusal to comply with judgment no. 175/1993 of the Tripolis Administrative Court of Appeal and pay him the sums due to him in accordance with that judgment had infringed his right to effective judicial protection in the determination of his civil rights and had interfered with his right to the peaceful enjoyment of his possessions. The applicant relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

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 trial by [a] ... tribunal...”

Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

As their primary submission, the Government maintained that the applicant had not exhausted domestic remedies because he had not instituted enforcement proceedings against the Arcadia prefecture. Such proceedings would have enabled him to recover the money owed to him. The Government stressed in this regard that section 8 of Law no. 2097/1952 had been repealed and that it was now possible to bring enforcement proceedings against the State, local authorities and public-law entities.

The Government submitted that enforcement of the judgment was in any event suspended pending expiry of the time-limit for appealing on points of law and the exercise of that right of appeal. Accordingly, as long as the case was pending before the Supreme Administrative Court the authorities were not obliged to comply with judgment no. 175/1993 of the Tripolis Administrative Court of Appeal. Lastly, the Government maintained that the relevant administrative authority was temporarily unable to find the necessary funds.

The applicant disputed the Government’s arguments. He submitted, first of all, that there was not as yet any established case-law on the possibility of bringing enforcement proceedings against the State and other public-law entities. Moreover, the fact that an appeal on points of law had been lodged against judgment no. 175/1993 was irrelevant because the appeal did not have suspensive effect. The authorities were obliged to comply with the judgment promptly. The applicant went on to affirm that the State owed him several million drachmas and that, in refusing to pay him the amounts owed, it had put him in a distressing and precarious position.

The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention requires applicants – using the legal remedies available in domestic law in so far as they are effective and adequate – to afford the Contracting States the possibility of putting right the violations alleged against them before those allegations are submitted to an international court (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). The only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38).

In the instant case the Government produced a number of documents before the Court to support their submission that it was now possible to bring enforcement proceedings against the State. The Court is therefore satisfied that this remedy exists and that it is now available to litigants. However, the Court cannot fail to observe that on the date on which the application was lodged, on 24 March 2000, this possibility did not yet exist in Greek law. Irrespective, therefore, of the issue whether it is appropriate to require an individual who has obtained judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction, the applicant in the present case cannot be criticised for failing to use that remedy before lodging his application with the Court.  In any event, even if the applicant does now have the opportunity of recovering the sums owed to him by bringing enforcement proceedings, the Court considers that this possibility cannot cure the national authorities’ long-standing failure to comply with a judgment that was delivered on 16 November 1993 and became final on 1 March 1999 (see, mutatis mutandis, Burdov v. Russia, no. 59498/00, §§ 31 and 36-37, ECHR 2002-II).

Having regard to the foregoing considerations, the objection raised by the Government on grounds of failure to exhaust domestic remedies must be rejected.

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KARAHALIOS v. GREECE DRAFT DECISION


KARAHALIOS v. GREECE DRAFT DECISION