FIRST SECTION
CASE OF KANDARAKIS v. GREECE
(Applications nos. 48345/12 and 2 others)
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Access to court • Locus standi denied to practising lawyers who applied to have the lawyers’ fees awarded in expropriation proceedings, which had been temporarily deposited in a consignment fund, transferred to the bar association with which they were registered • Lack of a clear, practical and effective opportunity to assert claim, either in this manner or an alternative • No loss of victim status following eventual payment of fees after action brought by bar association • Restriction disproportionate
 
STRASBOURG
11 June 2020
 
FINAL
 
11/09/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kandarakis v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Krzysztof Wojtyczek,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Pere Pastor Vilanova,
 Jovan Ilievski,
 Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to:
the applications (nos. 48345/12, 48348/12 and 67463/12) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Greek nationals, Mr Alexandros Kandarakis and Mr Michail Kandarakis (“the applicants”), on 18 July 2012;
the decision to give notice to the Greek Government (“the Government”) of the complaints under Article 6 and Article 1 of Protocol No. 1 to the Convention;
the parties’ observations;
Having deliberated in private on 19 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants are lawyers registered with the Athens Bar Association. After representing a number of clients in three sets of expropriation proceedings, a certain amount was awarded to those clients for court expenses incurred, including lawyers’ fees. Pursuant to domestic legislation, that amount was deposited in the Consignment Deposits and Loans Fund (Ταμείο παρακαταθηκών και Δανείων) to the benefit of the bar association with which the representatives of the person whose property was expropriated were registered. Under the law, such money should be deposited in the Fund so that the relevant bar association can then request the money and – having withheld for itself a percentage prescribed by law – forward the remainder to the lawyer concerned. The applicants complained under Articles 6 of the Convention and 1 of Protocol No. 1 to the Convention about the judgments delivered by the domestic courts dismissing their applications to have those amounts handed over to the Athens Bar Association, holding that only the relevant bar association could directly initiate proceedings seeking the payment of that amount and that the applicants could only bring a subrogation action. THE FACTS
2. The applicants were born in 1938 and 1979 respectively and live in Athens. The applicants were represented by the first applicant in his capacity as a lawyer, Mr V. Chirdaris and Ms E. Salamoura, lawyers practising in Athens. 3. The Government were represented by their Agent’s delegate, Mrs G. Papadaki, Senior Advisor at the State Legal Council. 4. The facts of the cases, as submitted by the parties, may be summarised as follows. Application no. 48345/12
5. The applicants, who are lawyers registered with the Athens Bar Association, represented certain clients in expropriation proceedings before the single-member first-instance civil court of Kalavryta (Μονομελές Πρωτοδικείο Καλαβρύτων), after being authorised to do so (νομιμοποίηση) by a lawyer registered with the Kalavryta Bar Association. 6. By judgment no. 56/2007, the single-member first instance civil court of Kalavryta fixed the provisional amount of compensation to be awarded. It additionally fixed the amount to be awarded for costs at 320 euros (EUR) and for the lawyers’ fees at EUR 54,387.75. 7. The company ERGOSE AE, which was ordered to compensate the persons whose property had been expropriated, deposited the above-mentioned amounts in the Consignment Deposits and Loans Fund to the benefit of the Kalavryta Bar Association. 8. The applicants lodged an application with the single-member first-instance civil court of Athens against ERGOSE AE, seeking that the amounts fixed as costs and lawyers’ fees be deposited to the benefit of the Athens Bar Association, with whom they were registered. They invoked as reason that they were the only lawyers who had represented the client and the lawyer registered with the Kalavryta Bar Association had merely authorised their presence before the Kalavryta court. By judgment no. 119/2009, the single-member first-instance civil court of Athens dismissed the applicants’ application, holding that the applicants lacked locus standi because, pursuant to Articles 8 and 18 of Law no. 2882/2001, the beneficiary of the amounts awarded as costs and lawyers’ fees was the relevant bar association. The applicants could only bring a subrogation action (πλαγιαστική αγωγή), but in order to do so they had to plead that the Athens Bar Association had neglected or refused to pursue such an action itself. 9. The applicants lodged an appeal against that judgment; that appeal was dismissed by judgment no. 5140/2010 of the Athens Court of Appeal on the basis of the same reasoning as that contained in the first-instance judgment. Following a further appeal on points of law, the appellate court’s judgment was upheld by judgment no. 694/2012 of the Court of Cassation (Άρειος Πάγος), issued on 24 April 2012
10. On 15 November 2013, the Athens Bar Association lodged an application with the single-member first-instance civil court of Athens against ERGOSE AE seeking that the amounts fixed as costs and lawyers’ fees by judgment no. 56/2007 of the single-member first-instance civil court of Kalavryta be deposited to its benefit. The first-instance civil court of Athens by judgment no. 5955/2014 rejected the application as unsubstantiated and, in any event, as not having been lodged under the right procedure. The Athens Bar Association lodged an appeal against that judgment; that appeal was allowed by judgment no. 1768/2017 of the Athens Court of Appeal. The appeal court ruled that the application had been substantiated and should be referred to the Patras Court of Appeal. At the time that the parties’ observations were filed with the Court, the case was pending before the Patras Court of Appeal. Application no. 48348/12
11. The applicants represented a client in expropriation proceedings before the single-member first-instance civil court of Korinthos (Μονομελές Πρωτοδικείο Κορίνθου), after being authorised to do so by a lawyer registered with the Korinthos Bar Association. 12. By judgment no. 54/2007, the single-member first-instance civil court of Korinthos fixed the provisional amount of compensation to be awarded. It additionally fixed the amount to be awarded as costs to 120 euros (EUR) and for the lawyers’ fees at EUR 18,405. 13. The company ERGOSE AE, which was liable for compensating the persons whose property was expropriated, deposited the above-mentioned amounts in the Consignment Deposits and Loans Fund to the benefit of the Korinthos Bar Association. 14. The applicants lodged an application with the single-member first-instance civil court of Athens against ERGOSE AE seeking that the amounts fixed as costs and lawyers’ fees be deposited to the benefit of the Athens Bar Association, with whom they were registered. They invoked as reason that they were the only lawyers who had represented the client and the lawyer registered with the Korinthos Bar Association had merely authorised their presence before the Korinthos court. By judgment no. 118/2009, the single-member first-instance civil court of Athens rejected the applicants’ application, holding that the applicants lacked locus standi, because, pursuant to Articles 8 and 18 of Law no. 2882/2001, the beneficiary of the amounts awarded as costs and lawyers’ fees was the relevant bar association. The applicants could only bring a subrogation action, but in order to do so they had to plead that the Athens Bar Association had neglected or refused to pursue such an action itself. In addition, they had not noted in their application that judgment no. 54/2007 of the single-member first-instance civil court of Korinthos had become final and, thus, enforceable. 15. The applicants lodged an appeal, which was rejected by judgment no. 5139/2010 of the Athens Court of Appeal on the basis of the same reasoning as that contained in the first-instance judgment. Following an appeal on points of law by the applicants, the appellate court’s judgment was upheld by judgment no. 693/2012 of the Court of Cassation, issued on 24 April 2012. 16. On 15 November 2013 the Athens Bar Association lodged an application with the single-member first-instance civil court of Athens against ERGOSE AE, seeking that the amounts fixed as costs and lawyers’ fees by judgment no. 54/2007 of the single-member first-instance civil court of Korinthos be deposited in the Consignment Deposits and Loans Fund to its benefit. The court, by judgment no. 1360/2015, rejected the application as unsubstantiated and in any event, as not having been lodged under the right procedure. 17. The first applicant, who had intervened in the proceedings before the first-instance court, lodged an appeal against that judgment. By judgment no. 1624/2018, the Athens Court of Appeal noted that, having regard to the documents before it, half of the amount that had been awarded as lawyers’ fees had already been deposited by the Korinthos Bar Association with the Athens Bar Association. Therefore, the outstanding sum that remained to be paid to the Athens Bar Association consisted of the amounts of EUR 9,203.25 (that is to say the other half part of the lawyers’ fees – see paragraph 12 above) and EUR 120 that had been awarded as costs. However, the applicants’ claim concerning their fee had become time-barred on 31 December 2012. On the basis of the above-mentioned considerations, the application was dismissed. Application no. 67463/12
18. The applicant represented certain clients in expropriation proceedings before the single-member first-instance civil court of Athens (Μονομελές Πρωτοδικείο Αθηνών). 19. Following an appeal and an appeal on points of law against the judgments setting the provisional amount of compensation, by judgment no. 4531/2002, the Athens Court of Appeal fixed the amount for costs and expenses, including the lawyers’ fees, at EUR 40,683.91. 20. In 2004 the Ministry for the Environment, Regional Development and Public Works, which was liable for compensating persons whose property had been expropriated, deposited the above-mentioned amount of EUR 40,683.91 in the Consignment Deposits and Loans Fund to the benefit of the Athens Bar Association. However, the Consignment Deposits and Loans Fund declined to pass on that amount to the Athens Bar Association. 21. The applicant lodged an application with the single-member first-instance civil court of Athens, seeking that the Consignment Deposits and Loans Fund be ordered to pay the above-mentioned amount of EUR 40,683.91 to the Athens Bar Association, with whom he was registered. By judgment no. 1635/2005, the single-member first-instance civil court of Athens rejected the applicant’s application. Following an appeal by the applicant, the Athens Court of Appeal allowed the application and by its judgment no. 5162/2005, ordered the Consignment Deposits and Loans Fund to deposit the relevant amount with the Athens Bar Association. Following an appeal on points of law, on 15 December 2008 the Court of Cassation issued judgment no. 1922/2008, by which it reversed the appellate court’s judgment on the basis that only the relevant bar association could initiate proceedings to secure the amount in question, and not the lawyer who would benefit indirectly. 22. On 14 November 2013 the Athens Bar Association lodged an application with the single-member first-instance civil court of Athens against the Consignment Deposits and Loans Fund seeking that the amounts fixed as costs and lawyers’ fees by judgment no. 4531/2002 of the Athens Court of Appeal be paid to the Athens Bar Association. The domestic court by its judgment no. 6516/2014 allowed the application. An appeal lodged by the Consignment Deposits and Loans Fund was rejected by judgment no. 3582/2015, as was an appeal on points of law lodged with the Court of Cassation by judgment no. 702/2016. 23. On the basis of the above-mentioned judgments, the Consignment Deposits and Loans Fund paid the above-mentioned amount to the Athens Bar Association, which withheld for itself the amount provided by law and gave the rest to the applicant. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Law no. 1093/1980
24. The relevant provisions of Law no. 1093/1980, which amended Legislative Decree no. 3026/1954 (“the Lawyers’ Code” – see paragraph 25 below), read as follows:
Article 9
“... 5. The provisions of Articles 178 and 179 of the Code of Civil Procedure do not apply to proceedings conducted under the special procedure for compulsory expropriations. The court costs are always imposed in full, and exclusively to the detriment of the person liable for [paying] compensation, subject to the provisions of L.D. 446/1974. In any case, the court shall determine the fees of the lawyers of both parties, respectively, calculated on the basis of the agreement provided for by paragraph 3 of article 92 of the L.D. 3026/1954, or, in its absence, in accordance with the provisions of Articles 100 et seq. of the same L.D. 6. The person liable [for paying] compensation [for the expropriation] shall withhold the fees of the lawyer of the person against whom the expropriation was carried out... If they are not withheld and the fees are deposited in the Deposits and Loans Fund, then the latter has the obligation to withhold them. The person liable [for paying] compensation and the Consignment Deposits and Loans Fund shall give the withheld fees to the bar association with whom the entitled lawyer was registered...”
25. Under Article 161 of Legislative Decree no. 3026/1954, which included at the material time the provisions for the Lawyers’ Code, and in the meantime has been repealed by Article 166 § 2 of Law no. 4194/2013, the relevant bar association may withhold a percentage of the lawyers’ fees for distribution to its members. Law no. 2882/2001
26. The relevant provisions of Law no. 2882/2001 (“the Expropriation Code”) read as follows:
Article 8
“The person liable for paying compensation, court expenses pursuant to Article 18 § 4, and lawyers’ fees, as fixed by the court, shall deposit in the Consignment Deposits and Loans Fund that compensation to the benefit of the right-holder, and the court expenses and lawyers’ fees to the benefit of the bar association with whom the lawyers are registered.”
Article 18
“...
4. [Payment of] court expenses, as well as lawyers’ fees, shall be the obligation of the person liable for compensation, shall be fixed by the court by the same judgment, if not otherwise provided under the present law, and shall be deposited in the Consignment Deposits and Loans Fund to the benefit of the bar association ...”
Code of Civil Procedure
27. 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 («πλαγιαστική αγωγή»)
“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 189
Expenses to be awarded
“Only expenses [incurred] in and out of court that were necessary for the defence during a trial shall be awarded, ... in particular: ... c) lawyers’ fees or the fees of other representatives and of court employees, in accordance with the applicable rates ... Domestic case-law
28. According to the jurisprudence of the Court of Cassation, court expenses, as awarded by a court that rules on expropriation, include lawyers’ fees, which constitute the largest part of such expenses. However, they are to be awarded to the party that wins the proceedings in question, and not to his or her lawyer. Therefore, court expenses and lawyers’ fees constitute two different concepts: court expenses belong to the party that wins a set of proceedings and shall be paid by the person to the benefit of whom the expropriation in question took place; lawyers’ fees relate to the internal relationship between a client and his lawyer and is fixed by an agreement concluded between them, provided that that agreement is in accordance with established legal standards (Court of Cassation judgment no. 1778/2001 and judgment no. 2073/2007). The law provides for the deposit of the lawyers’ fees by the person liable for compensation, so as to ensure that the amount that the beneficiary would receive is not reduced (Court of Cassation judgment no. 702/2016). 29. A lawyer may bring a legal action seeking the payment of his fee under the special procedure provided by the Code of Civil Procedure in respect of disputes concerning fees for the provision of services (Ioannina Court of Appeal judgment no. 283/2009 and Court of Cassation judgment no. 321/2017). 30. Following the Court’s judgment in Philis v. Greece (no. 1), 27 August 1991, Series A no. 209), the Special Supreme Court (Ανώτατο Ειδικό Δικαστήριο) issued judgment no. 26/1993, which ruled that the Technical Chamber of Greece was not the only interested party entitled to bring proceedings seeking the payment of fees owed to a certain engineer. THE LAW
JOINDER OF THE APPLICATIONS
31. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
32. The applicants complained that the dismissal of their actions, by which they had sought that the Consignment Deposits and Loans Fund hand over the respective amounts fixed as lawyers’ fees to the Athens Bar Association, on the grounds that they had lacked locus standi, had violated their right of access to a court, as provided in Article 6 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilityThe parties’ arguments

33. The Government submitted that the application should be rejected for the applicants’ lack of victim status. In particular, citing the relevant domestic judgments and law (see paragraphs 24 - 30), they argued that court expenses – including lawyers’ fees, as fixed by the respective domestic courts – belonged to that party to the proceedings to whom the judgment in question awards costs and expenses. The amount awarded as lawyers’ fees by a domestic court merely constitutes a reference amount for the purposes of withholding a certain percentage for distribution to the members of the relevant bar association. A lawyer’s fee relates to the internal relationship that that lawyer has with his client and is fixed by an agreement concluded between them; in the event that the agreement is not valid, then the fee is fixed by the applicable provisions of the Lawyers’ Code. By contrast, court expenses are fixed on the basis of Article 189 of the Code of Civil Procedure. The applicants could have lodged an action against their clients, seeking the payment of their respective fees based on their agreement or, in the absence thereof, based on the fees as fixed by the Lawyers’ Code. 34. In addition, in the Government’s view, the issue in the present case was that of which bar association was the beneficiary of the costs and expenses deposited in the Consignment Deposits and Loans Fund. In particular, in cases 48345/12 and 48348/12, the applicants complained of an alleged violation of their rights under Article 6 of the Convention and Article 1 of Protocol 1 to the Convention because their actions had been rejected for lack of locus standi; however, even if it had been accepted that they had had legal standing, the issue would not have been resolved as lawyers from various bar associations had authorised the applicants to defend the cases before courts in other cities. What the applicants sought from the Strasbourg Court, given the circumstances of the instant cases, was a judgment concerning the compatibility in abstracto of the relevant legislative provisions with the Convention. In any event, in cases 48345/12 and 48348/12, in which the applicants had been authorised by other lawyers to appear before the domestic courts of other cities, the applicants had been paid a certain amount of what had been fixed as lawyers’ fees, and in case 67463/12 the applicant had received the full amount. Therefore, they could no longer claim to be victims of a violation of the Articles of the Convention. 35. Lastly, the Government argued that the applicants had not exhausted the domestic remedies; in particular, they had failed to bring a subrogation action seeking that the Consignment Deposits and Loans Fund deposit the relevant amounts with the Athens Bar Association. On the contrary, they had brought a direct action, without pleading that the Athens Bar Association had neglected or refused to pursue such an action. In any event, as regards case no. 48345/12, there were still proceedings pending before domestic courts and the application should therefore be rejected. The same considerations applied also to case 48348/12, in which there was a two-year deadline for lodging an appeal on points of law against the judgment that had ruled that the applicants’ claim had been time-barred (see paragraph 16 above). 36. The applicants referred to their application and argued that they had exhausted all domestic remedies. In addition, the fact that they had received some or even all the amounts awarded in those cases had not had any bearing on their access to a court, which had still been impeded. They did not provide any comment in relation to the rest of the Government’s objections.

Outcome for Article 6: violation