ITEMID: 001-57681
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF PHILIS v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13+6 and 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 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.
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.
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).
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.
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.
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.
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.
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.
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."
45. The following provisions of the above-mentioned Royal Decree of 31 May 1956, as they were applicable at the material time, are relevant:
"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.] ...
..."
"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."
"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).
51. The Code of Civil Procedure provides as follows:
"Capacity to bring proceedings of parties
Any person who can establish a direct legitimate interest may seek judicial protection."
"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."
"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."
"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 ... "
"‘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")
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. ... "
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23893
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MICONI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in San Severino (Macerata) and living in Macerata. He is a lawyer by profession. The respondent Government are represented by their Agent, Mr I.M. Braguglia, and by their co-Agent, Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
By judgment no. 314 of 6 December 1985, the Constitutional Court ruled that the State should, in respect of entitlement to a pension of any nature, guarantee the statutory minimum amount.
Since that judgment was not immediately enforced through legislative measures, in 1990 the applicant took proceedings against the Istituto Nazionale della Previdenza Sociale (INPS) in the Italian magistrates' courts on behalf of numerous pensioners. In those proceedings, the applicant requested that his fees, costs and expenses be awarded directly to him (distrazione delle spese, Article 93 of the Code of Civil Procedure).
At first instance, in 1992, the magistrates' courts found in the plaintiff's favour and awarded the fees, costs and expenses directly to the applicant.
By judgments nos. 495 of 31 December 1993 and 240 of 10 June 1994, the Constitutional Court held that the State should reimburse part of the taxes unjustifiably paid by certain categories of pensioners on their old-age pensions.
At second instance, in 1995, the appellate court upheld the magistrates' courts' judgments and awarded fees and legal costs directly to the applicant.
In 1995, the INPS appealed against those judgments to the Court of Cassation.
On 28 March 1996 the President of the Republic passed a legislative decree (“decreto legge”) (no. 166) enforcing the judgments of the Constitutional Court. It provided that the State would reimburse the amounts by distribution of State bonds to the pensioners over a period of six years. Article 1(3) of Legislative Decree no. 166 extinguished all pending proceedings concerning the reimbursement in question and provided that each party would bear its own legal costs and that the judicial decisions which, on the day of entry into force of the Legislative Decree no. 166, had not yet become final would produce no legal effects.
Legislative Decree no. 166/1996 was never converted into a law, but its effects were maintained by section 1(183) of Law no. 662 of 23 December 1996 and section 36 of Law no. 448 of 23 December 1998, which reiterated, inter alia, that the judicial decisions which, on the day of entry into force of the Legislative Decree no. 166, had not yet become final would produce no legal effects.
In respect of the above proceedings that the applicant had instituted on behalf of numerous pensioners and which were pending before the Court of Cassation, the latter by numerous judgments given in 1999 and 2000 declared the proceedings extinguished and the legal costs divided between the applicant and the INPS, in accordance with the above-mentioned laws.
Some judges in 1999 and 2000 applied to the Constitutional Court for review of the above-mentioned sections of Laws nos. 662/1996 and 448/1998. By judgment no. 310 of 20 July 2000, the Constitutional Court declared the said laws compatible with the Italian Constitution.
On 2 April 2001 the applicant was served with an injunction granted to the INPS by the Macerata magistrate court ordering him to pay the sum of 227,646,556 Italian lire [about 117,569.63 euros]. This sum had been paid to the applicant as a consequence of the first instance decisions of the magistrates' courts' (see above).
On 12 May 2001 the applicant appealed against the order and instituted proceedings before the Macerata magistrate's court against the INPS. By a judgment issued on 28 May 2003 and filed with the registry on 20 June 2003 the magistrate's court rejected the applicant's claim because the proceedings had been extinguished and the legal costs divided in accordance with the above-mentioned laws and because the first instance decisions of the magistrates' courts' had not become final.
It is not clear whether the applicant appealed against this judgment.
Under Article 91 of the Code of Civil Procedure, the unsuccessful party in the proceedings bears all legal costs, including the lawyer's fees, costs and expenses incurred by the other party or parties.
Under Article 92, the judge can divide the legal costs between the parties when neither is entirely successful or when there are other equitable grounds (“altri giusti motivi”) therefore.
Under Article 93 of the Code of Civil Procedure, a lawyer whose client is of limited means can declare that he has advanced the costs and expenses of the proceedings on behalf of his client and has not been paid his fees (onorari), and can accordingly request that, if his client is successful and is thus entitled to be awarded legal costs under Article 91, the court should award the costs directly to the lawyer (distrazione delle spese). Article 93 thus grants a special protection to the lawyer, who enters into a direct relationship with the opposing party. He can subsequently act autonomously against the losing party in order to recover his fees, costs and expenses. The lawyer remains entitled to claim his fees from his client, however.
Under Legislative Decree no. 166/1996 all pending proceedings concerning the reimbursement of taxes unjustifiably paid by pensioners were extinguished and the legal costs were divided between the parties.
Under Article 77 (3) of the Italian Constitution, a legislative decree is a provisional Act which ceases to be valid if not converted into a law.
Legislative Decree no. 166/1996 was not converted into a law. However, its effects were maintained by section 1(183) of Law no. 662 of 23 December 1996 and section 36 of Law no. 448 of 23 December 1998. Law no. 448 of 23 December 1998 entered into force on 1 January 1999.
Under Article 1 of Constitutional Law no. 1 of 9 February 1948 “The question of the constitutionality of a law or equivalent act of the Republic which has been raised either by the judge or by any of the parties to the proceedings and has not been considered manifestly ill-founded by the judge shall be referred to the Constitutional Court for decision.”


ITEMID: 001-5666
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: LUDESCHER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austria national, living in Weiler (Austria). He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 December 1989 the Mayor of Röthis dismissed the applicant’s request of 28 August 1989 for a building permit in respect of a shed to be constructed on two plots of land marked as a free zone in the development plan. The Röthis Local Council (Gemeindevertretung) rejected the applicant’s appeal on 11 July 1990.
On 9 November 1990 the Feldkirch District Administrative Authority (Bezirkshauptmannschaft) dismissed the applicant’s further appeal. It found that no building was permissible in a free zone.
On 11 July 1991 the Constitutional Court (Verfassungsgerichtshof) declined to entertain the applicant’s complaint against the refusal of the building permit and referred the case to the Administrative Court (Verwaltungsgerichtshof).
On 4 October 1991 the Administrative Court requested the applicant to amend his submissions, which the applicant did on 4 November 1991.
On 15 December 1994 the Administrative Court rejected the applicant’s complaint. It found that the complaint related in essence to the alleged unlawfulness of the development plan underlying the refusal of the building permit, an issue outside the Administrative Court’s competence.


ITEMID: 001-139017
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: GOLUBENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 1. The applicant, Mr Vladimir Pavlovich Golubenko, is a Ukrainian national, who was born in 1952 and lives in Vilnyansk.
2. The applicant was granted leave to present his own case in the proceedings before the Court, in accordance with Rule 36 § 3 in fine of the Rules of Court. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Nazar Kulchytskyy.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. From 6 April to 14 November 2004 the applicant was detained in the Kherson Pre-Trial Detention Centre (SIZO).
5. From 14 November 2004 to 16 December 2006 he served his sentence in Orikhivska Prison no. 88, a correctional colony.
6. From 16 December 2006 to 30 January 2007 the applicant underwent a psychiatric examination in the psychiatric hospital of Vilnyansk Prison no. 20.
7. From 30 January 2007 until his release on 6 April 2009 he was detained in Sofiyivska Prison no. 55.
8. The applicant stated in his submissions before the Court that he was fully satisfied with the conditions of his detention and healthcare afforded to him in Vilnyansk Prison no. 20 and Sofiyivska Prison no. 55.
9. According to the applicant’s initial submissions, he was detained in “premises” measuring 42.5 sq. m (5.67 x 7.5 m). It had seventeen two-tier bunks and accommodated thirty-four inmates, all suffering from tuberculosis.
10. Later the applicant accepted without reservation the Government’s account, according to which he had been accommodated in a dormitory measuring 95.19 sq. m shared by thirty-eight inmates (see paragraph 18 below).
11. According to the applicant, there was no heating and the temperature inside never exceeded 9 degrees Celsius in winter. All the inmates therefore had to sleep in their outer clothes, which were permanently damp as there had been no place to dry them.
12. While there were two ordinary lamps and a night lamp, only the bulb in the night lamp worked. As a result, the lighting was poor.
13. The supply of electricity was limited and intermittent. More precisely, electric power was only supplied during the following periods: 220V from 6 to 7 a.m., 10 to 10.20 a.m., 12 to 12:20 p.m., 3 to 3.20 p.m., and 7 to 10 p.m.; and 110V from 10 p.m. to 6 a.m., and 4.30 to 7.30 p.m.
14. All the prisoners (the number of whom varied from 160 to 200) had to share seven taps for hand washing. Even those taps were unusable in winter, as the water pipes often cracked because of frost and were not properly maintained. When this happened the inmates had to fill plastic bottles with water from the shower block or the kitchen. Some of them preferred to use snow for “washing”.
15. Mere pits served for toilets, which were insufficient in number (only five). The prison was infested with rats.
16. The quality of food was poor. The applicant noted, in particular, that inmates were served porridge for lunch and dinner most days. Twice or three times per week mashed potatoes were on the menu. Inmates suffering from tuberculosis also received carrot juice in the morning, biscuits at lunch and cheese in the evening. Meat was served not as separate portions for each detainee, but from a communal casserole dish. Butter was also served from a shared dish. Sweets were offered instead of sugar. According to the applicant’s calculations, detainees suffering from tuberculosis received 20-30% fewer calories than the required nutritional amount.
17. The prison in question is a medium-security correctional colony for men who have served their prison sentence. The applicant was held in the “resocialisation” section, where inmates are accommodated in dormitories. The section measured 451 sq. m and comprised four dormitories (each measuring approximately 95, 71, 21 and 16 sq. m).
18. The applicant slept in dormitory no. 1 measuring 95.19 sq. m. He shared it with thirty-seven inmates, all having a medical history of tuberculosis.
19. There were two fluorescent tube lamps used for lighting in the dormitory. It also had six windows, each measuring 2.5 sq. m.
20. The dormitory had satisfactory sanitary conditions. It had a bathroom unit measuring 24 sq. m with one washing basin and four lavatory pans.
21. In addition, the section had the following:
a bathroom unit measuring 36 sq. m with eight toilet pits and ten washbasins;
an education room measuring 36.35 sq. m with two windows and one lamp;
a room for taking meals measuring 60.12 sq. m with two lamps and two windows;
a room for storing prisoners’ personal belongings measuring 14.37 sq. m with one window and one lamp;
a special room for drying clothes and shoes measuring 14.38 sq. m with one window and one lamp.
22. Prisoners also had at their disposal a sports ground, a smoking area and an outside area for drying clothes.
23. The dormitories were ventilated twice a day: from 8 to 9 a.m. during the morning check, and from 5 to 5.30 p.m. during the evening check.
24. The prison was centrally heated in summer and by stand-alone boilers during the cold season. The temperature in the dormitories was maintained at 18-19 degrees Celsius.
25. Prison nutrition was in compliance with the applicable legal and regulatory requirements. The applicant was provided with the full nutritional amount for people infected with mycobacterium of tuberculosis.
26. Aside from alleging that the physical conditions of detention and nutrition in the prison had been inadequate for inmates suffering from or having previously suffered from tuberculosis, the applicant did not give any factual account regarding his diagnosis of tuberculosis and treatment.
27. According to the applicant’s medical file (a copy of which has been submitted to the Court by the Government), the applicant stated on several occasions that he had suffered from tuberculosis from 1984 to 1997.
28. On 28 July 2004, during one of his examinations by a tuberculosis specialist in the SIZO, the applicant was diagnosed with a minor inflammation in his left lung, known as a Ghon focus, with a limited likelihood of it progressing to tuberculosis. As a result, he was placed under medical supervision for five years.
29. Upon his arrival at the prison the applicant underwent a medical examination which included urine, blood and sputum tests and an X-ray. As a result, he was prescribed and underwent tuberculosis anti-relapse therapy.
30. On 19 April, 20 October and 17 December 2004, 17 December 2005 and 7 June 2006 the applicant was X-rayed. Furthermore, on 15 July 2004, 22 April 2005, 14 and 21 March and 28 September 2006 he was examined by a tuberculosis specialist. As a result, he was prescribed and received certain medication as preventive medical treatment.
31. According to the applicant’s initial submissions, during his detention in Orikhivska Prison no. 88 his sight progressively deteriorated for almost a year. Despite this, his requests for a specialist examination remained ignored, as the prison did not employ an ophthalmologist, and seeking an external consultation was not deemed feasible.
32. According to the applicant’s later observations in reply to those of the Government, all the inmates of Orikhivska Prison no. 88 who had any sight-related complaints could register for an examination with a visiting ophthalmologist from Orikhivska Town Hospital. The applicant provided no further details.
33. As submitted by the Government, the applicant did not raise a single complaint about his sight deterioration during his detention in Orikhivska Prison.
34. On 31 January 2007 he was diagnosed for the first time with visual impairment (no further details being available) in Sofiyivska Prison, and he was told to wear spectacles. The applicant was placed under dispensary supervision in that regard, with check-ups twice a year. He was also prescribed medical treatment for meibomitis of the upper eyelid of the left eye (an inflammation of glands that produce an oily substance to reduce the evaporation of a person’s tears).
35. The applicant alleged that he had contracted onychomycosis of both feet and the left hand, as a result of poor sanitary conditions. According to him, the head of the medical unit of Orikhivska Prison refused to provide him with any treatment, telling him that there was a lack of medication and that this type of infection was not dangerous.
36. According to the applicant’s medical file (submitted by the Government), on 20 April 2004, while the applicant was detained in the Kherson SIZO, he was examined by a dermatologist who did not diagnose him with any dermatological conditions.
37. As stated by the Government on the basis of the applicant’s medical file, during his detention in Orikhivska Prison the applicant only applied once for medical assistance regarding skin problems, on 23 December 2005. He was examined and diagnosed with a foot fissure. As a result, he was prescribed and treated with Methyluracil ointment.
38. According to the Government, the applicant did not subsequently raise any complaints regarding any dermatological conditions with the medical staff or prison administration. Nor did he raise any such complaints with the prosecutor.
39. On 16 December 2006 the applicant was transferred to the psychiatric hospital of Vilnyansk Prison no. 20. His general medical examination upon arrival there did not reveal any skin rashes, scabs, pediculosis or any other dermatological conditions. The applicant did not raise any complaints either.
40. On 26 February 2013 the applicant consulted an ophthalmologist who gave the following diagnoses: high-degree myopia, myopic astigmatism, central and peripheral chorioretinal dystrophy of the right eye; and low-degree myopia and myopic astigmatism of the left eye. Further examinations were recommended with a view to defining the appropriate treatment.
41. The applicant neither undertook the recommended examinations nor sought any treatment, referring to the fact that he was experiencing financial hardship.
42. On 28 February 2013 the applicant was also examined in a local dermatovenerologic hospital. He was diagnosed with onychomycosis of both feet and the left hand, and was recommended treatment.
43. The applicant did not pursue any treatment, which he explained to the Court was because of his low income.


ITEMID: 001-5236
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ROCK v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is an Irish citizen, born in 1968 living in Dublin. He is represented before the Court by Ferry’s, Solicitors, Dublin.
A.
“In or about the afternoon of 4 May 1994 the applicant was arrested in a cubicle in the public toilet of <a hotel>. The door had been forced open. The prosecution alleges that on the floor between the legs of the accused was a bag marked “Aer Rianta Duty Free at Shannon”. Inside the bag was a quantity of notes which appeared to be US dollars. The prosecution intends to call evidence from a member of the United States Secret Service Treasury Department that the dollars are forged.
The applicant was conveyed to <a police> station where he was detained under Section 4 of the Criminal Justice Act 1984. The applicant was taken to an interview room by <two detectives>. In the course of the interview <Detective R> alleges that he explained sections 18 and 19 of the Criminal Justice Act 1984 to the applicant. The applicant gave his name and address in response to questions and in one instance replied <with the name of his girlfriend>.
At 10.05pm the applicant was again taken to the interview room. Present were <two detectives>. Detective R alleges that he produced a copy of <a police manual> and read sections 18 and 19 of the Criminal Justice Act 1984 to the applicant and that he explained the meaning of the sections in ordinary language. He also made certain statements to the accused as to the meaning in law in regard to the sections. The applicant declined to reply to questions put to him during the interrogation.”
The applicant does not dispute in his application to the Court that when he was arrested by the detectives, he was in a cubicle in the toilets of the hotel with the plastic carrier above-described bag between his legs. He does not dispute that, when he was asked what was inside the bag, he replied “What bag?” or that the plastic bag contained forged dollars. He accepts that he was cautioned on arrest as follows:
“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”
He also accepts that he responded a second time “What bag?” when asked about the bag. He also accepts that after one hour in the police station he was brought to an interview room and again cautioned in the above terms and that when he was again asked about the bag he replied giving his name and address only. The applicant does not dispute that he was interviewed a second time, given a copy of the police manual, that the detective in question read sections 18 and 19 to him and explained the meaning of those sections in ordinary language. He confirms that he did not proffer any explanation to the detectives.
When the period of the applicant’s detention expired the applicant was arrested for an offence under section 8 of the Forgery Act 1913 and he was brought before the District Court where evidence was given of arrest, charge and caution. He pleaded not guilty and he was remanded on bail from time to time until he was returned for trial to the Dublin Circuit Criminal Court. His trial was subsequently adjourned pending his constitutional challenge to sections 18 and 19 of the Criminal Justice Act 1984.
In its judgment of 10 November 1995, the High Court quoted, with approval, the judgment of the High Court in the case of Heaney v. Ireland ([1994] 3 IR 593) and considered that the constitutional right to remain silent could be diluted in certain circumstances. The constitutional validity of any such reduction in protection would depend on whether it was considered proportionate given the competing public and individual interests involved. Applying that test, the High Court found that the sections were not an excessive intrusion on the rights of an accused and were therefore not unconstitutional.
The applicant appealed to the Supreme Court. That court considered that the above-cited case of Heaney v. Ireland did not automatically dispose of the issues in the case. Having analysed the provisions of section 18 (which operated in the same manner as section 19), the Supreme Court pointed out that the courts were not obliged to draw negative inference but could draw such inferences as appeared proper. It was a matter for the court, or the jury subject to the court’s directions, to decide whether any such inferences would be drawn. In so deciding, the court was obliged to act in accordance with the principles of constitutional justice and was under a constitutional obligation to ensure that no improper or unfair inferences were drawn or permitted to be drawn from such failure or refusal.
Moreover, it was clear from the provisions of the section 18 that it did not interfere in any way with the accused person’s right to be presumed innocent or with the obligation on the prosecution to establish guilt beyond all reasonable doubt. The burden of proof on the prosecution in a criminal charge was not in any way affected by the provisions of the relevant sections, which merely provided a factor which might be adduced as evidence in the course of the trial. Furthermore, if such inferences were properly drawn, they amounted to evidence only and were not taken as proof. A person could not be convicted solely on the basis of such inferences, the inferences being corroborative of other evidence in relation to which the failure or refusal is material.
As regards the right to remain silent, in particular, the Supreme Court noted that the State was constitutionally obliged to protect its citizens from attacks on their person or property but was obliged to have due regard for the constitutional rights of accused persons. The question was whether the restrictions which the relevant sections placed on the right to silence were any greater than was necessary to enable the State to fulfil its constitutional obligations, the court noting that the “principle of proportionality” was a well established tenet of Irish law. The court considered that sections 18 and 19 of the 1984 Act sought to achieve that balance. It was not the court’s role to decide whether a perfect balance had been reached but merely to decide whether the legislature had acted within the range of what was permissible. The court found that the legislature had done so, considering two factors limiting sections 18 and 19 important; an inference could not form the basis of a conviction in the absence of other evidence and an adverse inference could only be drawn where the court deemed if proper to do so. An example of where it would be improper would be where the prejudicial effect of an inference would wholly outweigh its probative value as evidence.
On 20 October 1998 the applicant’s case came on for trial in the Dublin Circuit Criminal Court. The applicant pleaded guilty and he was given a five-year suspended sentence on condition that he enter a bond of good behaviour for three years. The applicant entered the bond.
B. Relevant domestic law and practice
Section 18 of the 1984 Act, in so far as relevant, reads as follows:
“(1) Where
(a) a person is arrested without warrant by a member of the <police>, and there is;
(i) on his person, or,
(ii) in or on his clothing or footwear, or
(iii) otherwise in his possession, or
(iv) in any place in which he is at the time of his arrest
any object, substance or mark, or there is any mark on any such object, and the member reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested, and
(b) The member informs the person arrested that he so believes, and requests him to account for the presence of the object, the substance or mark, and
(c) The person fails or refuses to do so,
then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure.
(2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of evidence to be given by a witness at the trial.
(3) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
(4) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the <police> when making the request mentioned in subsection (1)(b) what the effect of the failure or refusal might be.
(5) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section. …”
Section 19 relates to the presence of an accused at a particular place and is similar in its effect to section 18. It reads, in so far as relevant, as follows:
(1) Where
(a) a person arrested without warrant by a member of the <police> was found by him at a particular place on or about the time the offence in respect of which he was arrested is alleged to have been committed, and
(b) the member reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and
(c) the member informs the person arrested that he so believes, and requests him to account for such presence, and
(d) the person fails or refuses to do so,
then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure.
(2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of evidence to be given by a witness at the trial.
(3) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the <police> when making the request mentioned in subsection (1)(c) what the effect of the failure or refusal might be.
(4) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for his presence which could properly be drawn apart from this section. …”


ITEMID: 001-58124
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF CANEA CATHOLIC CHURCH v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 14;Not necessary to examine Art. 9;Not necessary to examine P1-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. The Roman Catholic Church of the Virgin Mary (Tis Panagias) in Canea is the cathedral of the Roman Catholic diocese of Crete. Built in the thirteenth century, it adjoins a former Capuchin convent and it has been used as a place of worship continuously since at least 1879. The building was acquired by the church by adverse possession (ektakti khrissiktissia).
7. In June 1987 two people living next to the church, Mr I.N. and Mr A.K., demolished one of its surrounding walls, which was 1.20 metres high, and made a window looking onto the church in the wall of their own building.
8. On 2 February 1988 the church, represented by the abbot, the Right Reverend Giorgios Roussos, applied to the Canea District Court seeking a declaration that it was the owner of the wall in question and orders that the defendants must cease the nuisance and restore the previously existing situation, that the judgment should be provisionally enforceable and that the defendants should be liable to a fine of 100,000 drachmas and six months’ imprisonment if they did not comply with the judgment.
The defendants raised an objection to admissibility on the ground that Catholic churches in Greece had no legal personality and were thus prevented from bringing legal proceedings.
The plaintiff church answered the objection by stating that it was a cloister church, founded and authorised before 1830 and recognised under the Protocol of London of 3 February 1830. More particularly, it stated that it was a Capuchin cloister that had been authorised before 1830 and belonged to the diocese of Syros and Thera, which did have legal personality (aftotelia).
9. On 18 October 1988 the District Court held that the wall was owned by the church and ordered the defendants to rebuild it to its original height. As to the objection to admissibility, the court held that it was unfounded, accepting the plaintiff church’s submissions, which – it found – were substantiated by the papal seal of 20 June 1974 that was in the file; the court also noted that the abbot was the manager of its wealth and was therefore entitled to represent it in legal proceedings.
10. The defendants appealed against that judgment to the Canea Court of First Instance on 8 December 1988.
11. On 18 May 1989 the Court of First Instance, allowing the appeal, quashed the judgment of the court below for the following reasons:
“…
The provisions of the Treaty of Sèvres of 10 August 1920, which remains in force by virtue of Protocol No. 16 annexed to the Treaty of Lausanne of 24 July 1923, require Greece to ensure Greeks’ freedom of religion, freedom of worship and equality before the law irrespective of their religious denomination – freedoms which are, moreover, guaranteed in Articles 4, 5 and 13 of the current Constitution – but do not provide that religious or other establishments founded by a religious minority may acquire legal personality without complying with the State’s laws on the acquisition of legal personality. Furthermore, the Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted.
In the instant case the Holy Church and Holy Convent of the Capuchins, whose date of foundation is not apparent from the evidence, did not acquire legal personality from the sole fact of being founded by the competent bishop in Greece without the formalities laid down in Greek laws on the acquisition of legal personality having been complied with. Consequently, they have no legal standing and their action must be dismissed for that reason in accordance with Article 62 of the Code of Civil Procedure. The failure to comply with the State’s laws on the acquisition of legal personality is admitted by the plaintiffs themselves. It must be noted that even if this church was founded before 1830, it accordingly did not acquire legal personality, having failed to comply with the laws of the State.
…”
12. On 14 December 1990 the church appealed on points of law, alleging a breach of the Protocol of London of 3 February 1830 taken together with the Greek Senate’s Memorandum of 10 April 1830, Article 8 of the Treaty of Sèvres of 1920, Article 13 of the Civil Code, Articles 13 and 20 of the Constitution and Article 9 of the European Convention on Human Rights.
In his opinion of 10 December 1992 the reporting judge of the Court of Cassation indicated that he thought the judgment of 18 May 1989 should be quashed; he pointed out that under Article 13 § 2 of the Constitution and Article 8 of the Treaty of Sèvres, Greek nationals belonging to religious minorities enjoyed the same protection in law and in fact and the same safeguards as other Greek nationals and, in particular, had an equal right to establish religious foundations and practise their religion freely; furthermore, under the canon law of the Roman Catholic Church, churches, convents and monasteries established with the approval of the Holy See had legal personality without it being necessary to comply with the formalities laid down in Greek laws. Such a restriction would be contrary to Article 13 of the Constitution and Article 8 of the Treaty of Sèvres.
13. In a judgment of 2 March 1994 the Court of Cassation dismissed the appeal in the following terms:
“…
[The Treaty of Sèvres], having been ratified in a statute, was kept in force as domestic law, but inasmuch as its content is covered by the Convention for the Protection of Human Rights and Fundamental Freedoms, which is much wider in scope, the treaty must be regarded as having been abrogated by this subsequent Convention, which pursues the same objective. However, the special provisions of the treaty which are not reproduced in the Rome Convention and do not conflict with it must be regarded as still being in force. By means of the Convention Greece protects, inter alia, the religious freedom not only of minorities but of any person within its jurisdiction, irrespective of religion, national origin, membership of an ethnic minority, etc. Article 13 § 2 of the Constitution, which provides for freedom to practise any ‘known’ religion and for freedom to perform religious obligations without hindrance, likewise corresponds to the content [of the Convention].
Regard being had to the foregoing, it is clear that the above-mentioned provisions guarantee to religious minorities freedom of religion, freedom of worship and religious equality and, by extension, the right to found religious associations and establishments, which acquire legal personality as of right but only after complying with the State’s laws on such acquisition … It is even provided (in Article 13 § 4 of the Constitution) that the religious convictions of minorities cannot constitute a legal ground exempting them from complying with the above-mentioned laws on the acquisition of legal personality, which, by the first sentence of Article 62 of the Code of Civil Procedure, is a condition of being able to bring or defend legal proceedings … Consequently, if Article 20 of the Constitution, whereby everyone is entitled to seek legal protection from the courts, is to apply, the above-mentioned statutory conditions must be satisfied. Furthermore, since section 13 of the Introductory Law to the Civil Code … provides that only legal persons ‘lawfully constituted’ at the date of adoption of the Civil Code continue to exist, the court below rightly held that Article 20 of the Constitution did not apply in the instant case as the formalities required by Greece’s laws for the acquisition of legal personality had not been complied with by the appellants.”
14. The relevant Articles of the Constitution provide:
Article 3
“1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople.”
Article 13
“1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it.”
15. Section 13 of the Introductory Law to the Civil Code provides:
“Legal persons that were lawfully constituted at the date of adoption of the Civil Code [23 February 1946] shall continue to exist. As regards their legal capacity, administration or functioning, the relevant provisions of the Code shall apply.”
16. Article 61 of the Civil Code gives the following definition of a legal person in general:
“A union of persons for the purpose of pursuing a given aim or a group of assets assigned to the service of a given aim may acquire legal personality if the requirements laid down by law are satisfied.”
17. The legal persons provided for in the Civil Code are associations (Articles 78 et seq.), foundations (Articles 108 et seq.) and charitable fundraising committees (Articles 122 et seq.). Non-commercial partnerships only acquire legal personality after taking the publicity measures laid down by law for commercial partnerships (Articles 741 et seq. and Article 784). It must also be noted that the Civil Code makes the provisions on partnerships applicable to unions of persons that have been created to pursue a given aim but are not associations (Article 107).
18. By Article 62 of the Code of Civil Procedure, “A person who has the capacity to possess rights and be bound by obligations shall also be entitled to bring or defend legal proceedings. Unions of persons which pursue a specified aim without being associations and also partnerships that do not have legal personality may bring or defend legal proceedings.”
This concept of a union of persons seems to approximate to the concept of a common-interest group in Greek law, since the courts have applied the concept to co-ownership of a seagoing vessel, to a political party and to an association of co-owners of a building.
19. Section 1 (4) of Law no. 590/1977 on the Charter of the Church of Greece confers personality in public law on the Orthodox Church and on a number of its institutions, at least as regards “their legal relations”.
20. Article 8 of the Treaty of Sèvres of 10 August 1920 provides:
“Greek nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Greek nationals. In particular they shall have an equal right to establish, manage and control, at their own expense, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.”
21. The applicant church annexed to the memorial it filed with the Court a series of judgments given by the highest courts in the land which, it submitted, substantiated its assertion that neither the legal personality of the Catholic Church in Greece nor its capacity to bring or defend legal proceedings had ever been called in question. The decisions were the following:
(a) judgment no. 142/1889 of the Court of Cassation, in which the court held that the appropriate Catholic bishop represented the legal person of the Catholic Church and its parish churches in legal proceedings for the protection of their property, and did so by virtue of the Catholic canon law, which was wholly applicable in Greece in so far as it did not conflict with any provisions of national law;
(b) judgment no. 1437/1896 of the Athens Court of Appeal, in which the court ruled similarly, holding that the canon law of the Catholic Church had been recognised in the Protocol of 3 February 1830 “as having the force of law” in Greece;
(c) judgment no. 256/1902 of the Athens Court of Appeal, in which the court held that it was for the Pope to appoint local administrators of the Catholic Church’s property and, moreover, that there was no need for Catholic parish churches “once established and lawfully in existence, to obtain permission from the State authorities to acquire [their] legal personality”;
(d) judgment no. 45/1931 of the Court of Appeal of the Aegean Islands, in which it was held that Catholic parish churches were represented by persons appointed by the Pope, according to canon law;
(e) judgment no. 1885/1946 of the Athens Court of Appeal (the first to be given on the subject after the Civil Code of the same year had come into force), in which the court held that legal persons constituted before 1946 were accorded full recognition under section 13 of the Introductory Law to the Civil Code; as regards, more specifically, Catholic Church foundations in Greece, it was held in the same judgment that Catholic bishops had “special” power to constitute them by means of a unilateral decision, without any need for that decision to take any particular form or to be subject to any prior authorisation;
(f) judgment no. 2716/1973 of the Second Division of the Supreme Administrative Court, whereby that court recognised the legal personality of the Catholic convent of the Ursuline Sisters on the island of Tinos, established by law in 1865 and to which was attached the Catholic school operating in Athens under the same name;
(g) judgment no. 1292/1977 of a full court of the Supreme Administrative Court, whereby the court recognised the legal personality of the parish church of St John the Baptist on the island of Thera in a case of expropriation in the public interest;
(h) judgment no. 101/1979 of the Court of Appeal of the Aegean Islands, delivered in a case of unlawful interference with the rights of possession and ownership of the same parish church of the island of Thera, whose capacity to bring and defend legal proceedings was formally confirmed.
On the other hand, following judgment no. 360/1994 delivered by the Court of Cassation in the present case, the Crete Court of Appeal dismissed an action brought jointly by the Episcopal Catholic Church of Crete and the applicant church for recovery of possession of a rented property, holding that the plaintiffs had no standing as they did not have legal personality (judgment no. 408/1995).
22. The Government cited a judgment of the Supreme Administrative Court (no. 239/1966) in which it was held that a monastery founded in 1963 by a decision of the Catholic bishop of Greece had not by virtue of that fact alone acquired legal personality. The Supreme Administrative Court said:
“The Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … was intended to ensure that the Catholics living in Greece enjoyed freedom of religion and freedom of worship and it did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted. The legal personality of Church establishments is a question which does not relate to worship or the Church’s domestic order but primarily concerns the legal order of the State and consequently cannot exist unless it is recognised by law.”
23. Lastly, in a judgment (no. 1099/1985) of 1985 the Court of Cassation held that the abbot of a monastic establishment of the Roman Catholic Church is empowered to represent it in legal proceedings concerning its property without the written authorisation of the local bishop as provided in canon 1526.
24. According to the applicant church, numerous notarial acts to which the Catholic Church of Greece and/or Catholic parish churches, duly represented by authorised agents in accordance with Catholic canon law, were parties unequivocally attest that as regards their property, the churches’ legal personality has never been challenged. By way of example, it has produced the following documents:
(a) contract of sale no. 17955/1915, whereby the Catholic Cathedral of Athens, duly represented by the Archbishop of the Greek Catholics, purchased 12,500 square metres of land in the Athens suburb of Iraklion. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force;
(b) contract of sale no. 5027/1936, whereby the applicant church, duly represented, purchased a shop in the centre of Canea;
(c) contract of sale no. 271/1955, whereby the Catholic Cathedral of Athens, duly represented, purchased a four-storey building in the centre of Athens. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force;
(d) contract of sale no. 2084/1981, whereby the applicant church sold to the city council of Canea 4,231.75 square metres of land in the city centre; in this document the church of Canea was represented by its bishop, appointed by papal decree;
(e) contract of sale no. 53844/1981, whereby the applicant church, expressly described as a private-law entity and a religious foundation of the Catholic Church, purchased a flat in the Athens suburb of Maroussi;
(f) contract of sale no. 1817/1992, whereby the Catholic Cathedral of Athens sold a flat in Athens which it had acquired by gift in 1980. This notarial act mentions (i) the foundation of the vendor cathedral in 1865 by unilateral act of the Bishop of Syros and (ii) the papal bull of 1973 whereby its representative was appointed according to the rules of Catholic canon law. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that it was registered according to the rules in force.
In all these contracts it is expressly stated that the appropriate transfer tax was duly paid; and the contracts were all registered with the appropriate mortgage registries. Furthermore, as may be seen from the tax returns duly completed and submitted by the applicant church for the years 1994, 1995 and 1996, its rent income from its properties, including some of the abovementioned properties, was exempt from income tax because of the landlord’s status as a religious legal entity.
In addition, two inheritance certificates issued by the clerk of the Athens Court of First Instance on an application by the Catholic Cathedral of Athens (the first certificate) and the Catholic parish church of Phira on the island of Thera (the second certificate) attest that these churches were recognised as the sole heirs of persons who died in 1988 and 1990.
VIOLATED_ARTICLES: 14
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104293
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KRAVTSOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1965 and lives in the town of Yelizovo, the Kamchatka Region. He is a military serviceman.
6. On 22 March and 20 May 2004 the Pacific Ocean Fleet Military Court (“the Fleet Court”), sitting in Vladivostok, in the final instance dismissed the applicant's claims against his commanding officers.
7. On 22 July 2004 the Fleet Court in the final instance allowed the applicant's other claim. It made the following order:
“The commanding officer of military unit no. 27120 shall provide [the applicant] with data about the constitutive elements of his monetary allowance paid to him from 1 January 2003 until 13 March 2004, as well as about reasons and grounds for him being deprived of bonus in 2003”.
8. The Fleet Court's judgment of 22 July 2004 was final and immediately enforceable.
9. On 4 April 2005 the bailiffs of the Kamchatka Regional Department of the Federal Court Bailiffs Service (“the Regional Department”) commenced the enforcement proceedings. They requested the commanding officer to enforce the judgment of 22 July 2004 in the applicant's favour voluntarily within a five-days period.
10. Meanwhile, on 1 April 2005 the 35th Garrison Military Court (“the Garrison Court”), sitting in Petropavlovsk-Kamchatskiy, allowed another claim lodged by the applicant. It ordered the commanding officer of the military unit no. 51401 to provide the applicant with an annual leave starting from 29 May 2005. The judgment of 1 April 2005 was not appealed against and became final and enforceable on 15 April 2005.
11. On 10 June 2005 the bailiffs of the Regional Department commenced the enforcement proceedings. They requested the commanding officer to enforce the judgment of 1 April 2005 in the applicant's favour voluntarily within a five-days period. The judgment was enforced before October 2005.
12. On 4 June 2009 the commanding officer of the military unit no. 27120 wrote to the applicant providing him with the relevant information, as he had been ordered to do by the Fleet Court's judgment of 22 July 2004. The letter of 4 June 2009 indicated that it was sent in compliance with the judgment of 22 July 2004. It was received by the applicant on 8 June 2009.
13. Domestic law and practice on execution of the judgments delivered against the State and its entities are summarised in Burdov (no. 2) v. Russia (no. 33509/04, §§ 23-24, ECHR 2009-...).
14. The 2010 legislation introducing a new domestic remedy in respect of an alleged violation of one's right to enforcement of a judgment within reasonable time is summarised in Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 15-20, 23 September 2010, and Balagurov v. Russia (dec.), no. 9610/05, 2 December 2010.
15. On 23 December 2010 the Joint Plenary of the Supreme Court of the Russian Federation and the Supreme Commercial Court of the Russian Federation adopted a resolution interpreting the above-mentioned legislative provisions. It is reiterated in the resolution that the legislation in question is applicable only in respect of the monetary awards payable from the public funds pursuant to a contractual or legal provision (paragraph 1).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1