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You are here: BAILII >> Databases >> European Court of Human Rights >> PHILIS v. GREECE - 12750/87;13780/88;14003/88 [1991] ECHR 38 (27 August 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/38.html Cite as: [1991] ECHR 38, 13 EHRR 741, (1991) 13 EHRR 741

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In the Philis case v. Greece*,

The European Court of Human Rights, sitting, in accordance with

Article 43** (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court***, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr N. Valticos,

Mrs E. Palm,

Mr I. Foighel,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 21 February and 26 June 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 32/1990/223/285-287. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 21 May 1990 within the

three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated in

three applications (nos. 12750/87, 13780/88 and 14003/88) against the

Hellenic Republic lodged with the Commission under Article 25 (art. 25)

by a Greek national, Mr Nicolaos Philis, on 5 January 1987,

6 April 1988 and 24 June 1988 respectively.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings. On 27 June 1990 the

President of the Court gave him leave to present his own case, with the

assistance of counsel, during the written proceedings, it being

understood that he would have to be represented by a lawyer at the

hearing (Rule 30 para. 1).

3. The Chamber to be constituted included ex officio

Mr N. Valticos, the elected judge of Greek nationality (Article 43 of

the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 24 May 1990, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mrs D. Bindschedler-Robert, Mr F. Gölcüklü,

Mr L.-E. Pettiti, Mr B. Walsh, Mr C. Russo, Mrs E. Palm and

Mr I. Foighel (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Greek Government ("the Government"), the Delegate of the Commission

and the applicant on the need for a written procedure (Rule 37

para. 1). In accordance with the orders made in consequence, the

Registrar received the applicant's memorial on 25 October 1990. By

telex message of 31 October 1990 the Agent of the Government indicated

that he no longer intended to file a memorial; on 14 December 1990 the

Secretary to the Commission informed the Registrar that the Delegate

would submit his observations at the hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President had directed, on

10 July 1990, that the oral proceedings should open on 19 February 1991

(Rule 38). In addition, on 19 December 1990 he granted the applicant's

request for legal aid (Rule 4 of the Addendum to the Rules of Court),

and the latter then designated the lawyer who was to represent him.

6. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr C. Economides, Director of the Special

Legal Department of the Ministry

of Foreign Affairs, Agent,

Mr N. Klamaris, Professor at Athens University,

Mr C. Chrissanthakis, Lecturer at Athens

University,

Miss A. Papathanassiou, Member of the Special

Legal Department, Ministry

of Foreign Affairs, Counsel;

(b) for the Commission

Sir Basil Hall, Delegate;

(c) the applicant and his counsel, Mr S. Perrakis,

Professor of law at the Komotini University.

The Court heard addresses by Mr Economides and Mr Klamaris for the

Government, by Sir Basil Hall for the Commission and by the applicant

himself and his counsel, Mr Perrakis, as well as their answers to its

questions.

AS TO THE FACTS

I. The particular circumstances of the case

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.

A. The proceedings concerning the dispute with the Autonomous

Organisation for Labour Housing (Autonomos Organismos

Ergatikis Katoikias - "A.O.E.K.")

1. The background to the dispute

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.

2. The first set of proceedings

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).

3. The second set of proceedings

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.

4. The third set of proceedings

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.

5. The fourth set of proceedings

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.

B. The proceedings relating to the dispute with the Penteli

children's hospital (Paidiko Nosokomeio Pentelis - "P.N.P.")

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.

C. The proceedings relating to the dispute with A.S.

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.

II. The relevant domestic law

A. Constitution

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."

B. Royal Decree no. 30 of 31 May 1956 laying down the rules

for the remuneration of engineers in general

45. The following provisions of the above-mentioned Royal Decree

of 31 May 1956, as they were applicable at the material time, are

relevant:

Article 1

"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.] ...

..."

Article 2

"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."

Article 3

"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).

C. The Code of Civil Procedure (Kodikas Politikis Dikonomias)

51. 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 (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."

Article 80

"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."

Article 82

"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 ... "

Article 83

"'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")

D. Case-law concerning the subrogation action

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. ... "

PROCEEDINGS BEFORE THE COMMISSION

53. Mr Philis lodged applications with the Commission

on 5 January 1987 (application no. 12750/87), 6 April 1988

(application no. 13780/88) and 24 June 1988

(application no. 14003/88). He relied on Articles 6, 13 and 14

(art. 6, art. 13, art. 14) of the Convention and Article 1 of

Protocol No. 1 (P1-1). With regard to Article 6 (art. 6), he

claimed that he had not had a fair trial before an independent and

impartial tribunal within a reasonable time; he also complained of a

violation of his right of access to a court, on the ground that the

T.E.E. had been subrogated ex officio to his right to recover the

remuneration due in respect of a number of projects which he had

designed.

54. The Commission ruled on the admissibility of the three

applications on 7 December 1988 and 11 October 1989. It found

admissible the complaints concerning the right of access to a court

and the duration of the proceedings (Article 6) (art. 6)

as well as that concerning Article 13 (art. 13); it declared the

other complaints inadmissible.

On 8 March 1990 it ordered the joinder of the applications pursuant

to Rule 29 of its Rules of Procedure. In its report of the same day

(Article 31) (art. 31), it expressed the following opinion:

(a) unanimously that there had been a violation of the applicant's

right of access to a court;

(b) by eleven votes to two that the case had not been heard within a

reasonable time (application no. 13780/88);

(c) unanimously that no separate question arose under

Article 13 (art. 13).

The full text of the Commission's opinion and the dissenting opinion

contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will appear

only with the printed version of the judgment (volume 209 of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

I. SCOPE OF THE CASE

55. Mr Philis requested the Court to examine his complaints

under Articles 6, 8, 13, 14 and 17 (art. 6, art. 8, art. 13,

art. 14, art. 17) of the Convention and under Article 1 of Protocol

No. 1 (P1-1), those Articles being taken both in isolation and in

conjunction with one another. The Commission declared admissible

only the allegations concerning the right of access to a court, the

length of the proceedings and Article 13 (art. 13). However, the

applicant argued that it had not expressly ruled on some of his

other allegations and that the Greek legislation in this field,

namely Act no. 1346/1983 (see paragraph 12 above), Royal

Decree no. 30/1956 (see paragraph 45 above) and the Articles of the

Code of Civil Procedure on the payment in advance of legal costs,

constituted a permanent violation of the rights guaranteed under the

Convention.

In the view of the Government and the Commission, on the other hand,

the latter's decisions on admissibility defined the scope of the

case brought before the Court; that scope was in their opinion

clearly indicated in the operative part of the decisions of

7 December 1988 and 11 October 1989 (see paragraph 54 above).

56. Once a case is duly referred to it, the Court may take

cognisance of every question of law arising in the course of the

proceedings and concerning the facts submitted to its examination by

a Contracting State or by the Commission. Being master of the

characterisation to be given in law to these facts, the Court is

empowered to examine them if it deems it necessary and if need be of

its own motion, in the light of the Convention as a whole (see,

among many other authorities, the Handyside judgment of

7 December 1976, Series A no. 24, pp. 19-20, para. 41).

Having regard to all the evidence before it, the Court considers

that it can also examine the complaint based on Article 14

(art. 14) of the Convention (see paragraph 68 below) because it

relates to the same facts as the complaints under Articles 6 and 13

(art. 6, art. 13). On the other hand, it agrees with the Government

and the Commission that the other Articles relied on should not be

taken into account.

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

57. The applicant alleged two violations of

Article 6 para. 1 (art. 6-1), which is worded as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair ... hearing within a reasonable time

by [a] ... tribunal ... ."

In the first place he claimed that he had been refused access to a

court to seek the remuneration payable in respect of a number of

projects which he had designed. In addition, the Athens Court of

Appeal, ruling on his dispute with the Penteli Children's Hospital

(see paragraphs 34-36 above), had not, in his submission, given its

decision "within a reasonable time".

A. Access to a court

58. The applicant argued that he was deprived of his right of

access to a court by Royal Decree no. 30/1956, according to the

terms of which only the T.E.E. was empowered to bring an action for

the recovery of fees (see paragraph 45 above). This meant that he

was dependent on the intervention of a third party, which situation

did not make it possible for him to pursue the main proceedings at

the time and in the manner which he considered to be the most

appropriate, to have the benefit of the assistance of counsel of his

choice, to ensure that the action was well "targeted", to institute

subsidiary actions and to claim compensation. He was able to

participate in person in the proceedings only for the purpose of

supporting the T.E.E.'s arguments and did not therefore have

effective control of them. The aim of the disputed Royal Decree

was, he argued, in reality the "violation of engineers' right of

access to a court and the unlawful withholding and exploitation of

their fees"; even supposing that it pursued a legitimate aim, there

was a flagrant disproportion between that aim and the means

employed.

The Government contested this view. In their opinion, a restriction

on the right of engineers to institute proceedings in the courts,

should the Court find that there was one, would not be contrary to

Article 6 (art. 6). The Royal Decree sought only to protect the

rights and interests of engineers by guaranteeing a "compulsory

minimum scale of fees". Furthermore, the means employed were

consistent with that objective. The notion of rights being

subrogated to a third party, which had very deep roots in Greek law,

was introduced in this area at the express request of engineers, who

wished for a more effective and vigorous protection of their rights:

in the event of non-payment of their fees, they would be reluctant

to sue their clients; in any case, they were paid their fees more

easily and more rapidly as a result of the deposit of the amount

owed with a professional association responsible for paying them

over at a later stage.

59. The Court recalls that in its judgments in the Golder case

of 21 January 1975 and the Ashingdane case of 28 May 1985

(Series A no. 18, p. 18, para. 36, and no. 93, pp. 24-25,

para. 57), it held that Article 6 para. 1 (art. 6-1) secured to

everyone the right to have any claim relating to his civil rights

and obligations brought before a court or tribunal; in this way the

Article embodies the "right to a court", of which the right of

access, that is the right to institute proceedings before courts in

civil matters, constitutes one aspect.

This right of access, however, is not absolute but may be subject to

limitations since the right by its very nature calls for regulation

by the State. Nonetheless the limitations applied must not restrict

or reduce the access left to the individual in such a way or to such

an extent that the very essence of the right is impaired.

60. As the Government stressed, the requirements of

Article 6 (art. 6) - which is moreover directly applicable in the

Greek domestic legal system and, according to Article 28 of the

Greek Constitution of 1975, is of higher authority than domestic

legislation - were implemented in Greece both by Article 20 of the

Constitution (see paragraph 44 above) and by Article 68 of the Code

of Civil Procedure (see paragraph 51 above).

In addition to these provisions of a general nature, however, Greek

legislation also lays down special rules applying to various

socio-professional categories, such as Royal Decree no. 30/1956,

Article 2 para. 4 of which would indeed appear to confer on the

T.E.E. the exclusive right to take legal proceedings to recover the

fees of engineers by its being subrogated ex officio to the latter's

rights (see paragraph 45 above).

According to the Government, this legislation does not expressly

preclude the persons concerned from themselves instituting

proceedings; the T.E.E.'s capacity to bring proceedings is

"parallel" to that of the true beneficiaries but does not exclude

it, otherwise Article 2 para. 5 of the Decree (see paragraph 45

above) would have no point. In support of this position they

referred to a judgment of the Larissa Administrative Court of Appeal

(see paragraph 49 above) and the opinion of certain academic

writers, to the effect that the disputed provisions do not conflict

with Article 68 of the Code of Civil Procedure (see paragraph 51

above).

61. It is not for the Court to assess the merits of the Greek

system for the payment of engineers' fees as such; it will therefore

confine itself, in so far as possible, to examining the issues

raised by the specific case before it. In order to do so, however,

it must examine the provisions in question to the extent to which

the impediment to the individual's right of access was in fact the

result of their application (see, mutatis mutandis, the Mellacher

and Others judgment of 19 December 1989, Series A no. 169, p. 24,

para. 41).

There are indeed advantages flowing from the system in question: by

representing engineers in the courts, the T.E.E. provides them, in

return for a small percentage, with the services of experienced

counsel and it bears in addition the legal costs and the lawyers'

fees, which less well-off engineers would sometimes find it

difficult to pay. The wording used in paragraphs 4 and 5 of

Article 2 is however ambivalent, with the result that

there has been disagreement among academic writers and in the

case-law as to their implications. Read literally, Royal

Decree no. 30/1956 confers on the T.E.E. the exclusive capacity to

bring proceedings on behalf of engineers. Existing practice is

consistent with this interpretation.

In accordance with such practice, Mr Philis requested the T.E.E., in

connection with his disputes with the A.O.E.K. and A.S., to bring

proceedings in the courts. When he himself sued the P.I.K.P.A and

the P.N.P. in the Athens Court of Appeal, that court dismissed his

action on the ground that he lacked the requisite capacity

(see paragraph 36 above).

62. This practice is confirmed by the prevailing case-law. In

its judgment no. 2827/1986 (see paragraph 47 above), the Athens

Court of Appeal held that "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 ... ". For its part, the

Court of Cassation decided that the T.E.E. was subrogated ex officio

to the rights of engineers even where they were not members of the

T.E.E. (judgment no. 309/1986 - see paragraph 48 above). It also

recognised that, where the T.E.E. did not bring an action for the

recovery of fees in sufficient time to prevent the action in

question being time-barred, such negligence gave rise to a right to

compensation; it did not enquire into whether there had been

contributory negligence in so far as the person concerned had not

tried to bring proceedings himself (judgment no. 25/1988 - see

paragraph 50 above). The judgment of the Larissa Administrative

Court of Appeal cited by the Government does appear to be clearly

out of line with the case-law.

63. The Government contended that, notwithstanding the effect

of the system described above, the applicant could have asserted his

rights in person through the numerous means available to him in

Greek civil procedure. He could have intervened "autonomously" in

the proceedings brought by the T.E.E., a possibility of which he had

moreover availed himself by virtue of Article 2 para. 5 of Royal

Decree no. 30/1956, in conjunction with Article 83 of the Code of

Civil Procedure (see paragraphs 45 and 51 above); he could have

lodged a third party objection (tritanakopi - Article 586 of the

Code of Civil Procedure) to a judgment delivered in breach of the

requirements of Article 2 para. 5 of Royal Decree no. 30/1956 (see

paragraph 45 above); he could have brought an action for damages

(Article 914 of the Civil Code) against the T.E.E., which had, by

its conduct, allegedly caused him damage; finally, he could have

brought a subrogation action under Article 72 of the Code of Civil

Procedure (see paragraph 51 above).

The principal condition for the exercise of the last-mentioned

remedy was satisfied. The engineer was entitled to sue his clients

on his own initiative, provided that he asked that the fees be paid

to the T.E.E. This right of the true beneficiary was derived from

the rules on subrogation and came into being with the engineer's

right to receive his remuneration.

64. This reasoning does not persuade the Court.

Intervention and third party objection are possible only once the

proceedings have been instituted by the T.E.E., whereas the action

for damages makes it possible for the engineer to claim

compensation, but not his fees as such.

As to the subrogation action, the prevailing case-law of the Greek

courts indicates that the general provision of Article 72 of the

Code of Civil Procedure does not override the specific provision of

Article 2 para. 4 of Royal Decree no. 30/1956, notwithstanding that

it may be possible to regard the T.E.E. as a debtor in relation to

the engineer before the payment of the remuneration. The Court,

like the Commission, notes in particular that the sole judgment

invoked by the Government in support of their view concerned the

enforcement of a judgment which had awarded the T.E.E. the sum in

dispute by a final decision (see paragraph 52 above).

65. In conclusion, since the applicant was not able to institute

proceedings, directly and independently, to seek the payment from

his clients - even to the T.E.E. in the first instance - of fees

which were owed to him, the very essence of his "right to a court"

was impaired, and this could not be redressed by any remedy

available under Greek law.

There has therefore been on this point a violation of

Article 6 para. 1 (art. 6-1).

B. Length of proceedings

66. Mr Philis also complained that the Athens Court of Appeal

took more than three years to give its decision which, in any event,

was confined to dismissing his action on the ground that he lacked

capacity to bring proceedings (see paragraphs 34-36 above). It had

therefore failed to rule within a "reasonable time".

In the light of the finding set out in the preceding paragraph, the

Court does not consider it necessary to examine this complaint.

III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

67. Mr Philis maintained further that no effective remedy had

been available to him before a national "authority" to complain of

the breach of his right of access to a court. There had therefore

been a violation of Article 13 (art. 13), which is worded as

follows:

"Everyone whose rights and freedoms as set forth in [the] Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

Having regard to its decision concerning Article 6 (art. 6), the

Court, like the Commission, takes the view that it does not have to

examine the case under Article 13 (art. 13) as its requirements are

less strict than, and are here absorbed by, those of Article 6

(art. 6) (see, among many other authorities, the Håkansson and

Sturesson judgment of 21 February 1990, Series A no. 171-A, p. 21,

para. 69).

IV. ALLEGED VIOLATION OF ARTICLE 14, IN CONJUNCTION WITH

ARTICLE 6 PARA. 1 (art. 14+6-1)

68. According to Article 14 (art. 14) of the Convention,

"The enjoyment of the rights and freedoms set forth in [the]

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The applicant claimed to be the victim of a twofold discrimination

incompatible with this provision.

In the first place, the provisions of Act no. 1346/1983 which were

retrospective in effect were directed at him personally and had been

applied exclusively in his cases pending in the courts. As evidence

of this he cited the express reference to his name in the record of

the parliamentary debates prior to the voting of this Act.

Secondly, the profession of engineer was the only profession whose

members did not have the benefit of direct access to the courts to

assert their civil rights.

In its decision of 7 December 1988 on the admissiblity of the

application, the Commission rejected the first complaint because it

concerned a period prior to 20 November 1985, when the Greek

declaration accepting the right of individual petition took effect.

Accordingly, the Court may not entertain it.

As to the second complaint, the Court has already observed that the

restriction on Mr Philis's right of access to a court infringed

Article 6 (art. 6). This being so, it considers that no useful

purpose is to be served in determining whether he has in addition

suffered discrimination as compared with other persons who are

subject to lesser limitations on the same right (see, mutatis

mutandis, the Dudgeon judgment of 22 October 1981, Series A no. 45,

p. 26, paras. 67-70).

V. APPLICATION OF ARTICLE 50 (art. 50)

69. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said Party

allows only partial reparation to be made for the consequences of

this decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured party."

The applicant sought compensation for damage and the reimbursement

of costs and expenses. He also requested the Court to specify that

the sums awarded should be exempt from attachment.

A. Damage

1. Pecuniary damage

70. Mr Philis asked the Court to award him "full compensation",

on the ground that the outcome of the disputed proceedings would

unquestionably have been in his favour had there been no breach of

the Convention. In this connection he claimed a total sum of

582,889,280 drachmas, plus amounts to cover, for the period from

31 December 1988 to the date of the last payment, inflation,

currency depreciation and due interest. The violation of Article 6

(art. 6) had also interfered with the exercise of his profession

during the last five years, depriving him of earnings which he

assessed at a minimum of 100,000,000 drachmas.

The Government contended that there was no causal connection between

the damage sustained and the alleged breach. If however the Court

should find otherwise, Greek law - in particular Sections 105 and

106 of the "Introductory Act" to the Civil Code (right to

compensation in the event of judicial error) - made available to the

applicant the possiblity of restitutio in integrum; in any event, a

finding of a violation would constitute sufficient just

satisfaction.

71. The Court cannot speculate as to the conclusions which the

national courts would have reached had Mr Philis been able to bring

legal proceedings himself. As no causal connection has been

established, it dismisses the claims concerning the amounts sought

from the A.O.E.K., the P.N.P. and A.S. and the alleged loss of

earnings.

2. Non-pecuniary damage

72. In respect of non-pecuniary damage, the applicant sought

compensation of 300,000,000 drachmas. He maintained that for a

period of ten years he had suffered from great psychological

pressure because he had lived in a state of uncertainty and despair

with regard to the conduct and outcome of the proceedings pending in

the courts and their repercussions on his financial position.

The Government considered that Mr Philis had not sustained any such

damage, but left the question to be determined by the Court.

73. The feeling of frustration generated by the impossibility of

assuming control of the defence of his own interests, as well as the

prolonged anxiety as to the outcome of his disputes with his

debtors, must have caused the applicant some non-pecuniary damage.

Making an assessment on an equitable basis in accordance with

Article 50 (art. 50), the Court awards him 1,000,000 drachmas under

this head.

B. Costs and expenses

74. The applicant also claimed the payment of legal costs and

lawyers' fees together with an amount for the work which he had

carried out in connection with the case.

According to the established case-law of the Court, to be awarded

costs and expenses the injured party must have incurred them in

order to seek prevention or rectification of a violation of the

Convention, to have the same established by the Commission and later

by the Court and to obtain redress therefor. It must also be shown

that the costs were actually and necessarily incurred and that they

are reasonable as to quantum.

1. Costs referable to the national proceedings

75. Mr Philis claimed 21,312,160 drachmas for lawyers' fees, as

well as for other miscellaneous expenses incurred during the

proceedings brought, from 1978 to 1986, either by himself (see

paragraph 9 above) or by the T.E.E.; he provided a detailed list of

these expenses.

According to the Government, these costs were not incurred in order

to protect the right of access to the Greek courts or to speed up

the progress of the proceedings before them; accordingly, they

cannot give rise to reimbursement.

76. The Court observes that the costs incurred by the applicant

in the Greek courts related to the substance of the disputes and not

to the problem of access to a court.

It notes nevertheless that his interventions in the proceedings

instituted by the T.E.E. against the A.O.E.K. and his own action

against the P.N.P. constituted for him the sole means whereby he

could seek to remedy the deficiency of Greek law. It therefore

takes the view, in agreement with the Delegate of the Commission,

that Mr Philis must be reimbursed the corresponding costs to the

extent that they were actually incurred, necessarily incurred and

reasonable. As some of the claims appear to be excessive, the Court

can only award him in this respect the sum of 4,000,000 drachmas,

assessed on an equitable basis.

2. Costs referable to the European proceedings

77. Mr Philis was not assisted by a lawyer before the

Commission. He claimed 6,375,000 drachmas for the work carried out

by him and 911,120 drachmas for miscellaneous and travel expenses.

The Government agreed to reimburse the costs resulting from the

applicant's journeys to Strasbourg and certain other expenses, but

in their view the sum to be awarded in this respect should

correspond to the scales established by the Commission for legal

aid. They stated that they were willing to pay 1,000,000 drachmas.

The Court observes that the applicant presented his own case before

the Commission and appeared in person before it; he incurred

substantial costs, which he has itemised. Accordingly, and having

regard to the Government's observations, it considers that on the

basis of an equitable assessment he should be awarded

1,000,000 drachmas under this head.

78. Before the Court, the President authorised Mr Philis to

submit a memorial himself and to address the Court at the hearing;

he also agreed to accord him legal aid.

Nevertheless, the applicant claimed 1,632,770 drachmas and

3,226 French francs in respect of lawyer's fees and expenses

together with 544,900 drachmas for miscellaneous expenses. He also

sought 3,750,000 drachmas to cover his own work, 300,000 for his

attendance at the hearing and 275,000 for his presence at the

delivery of the Court's judgment.

The Government and the Commission pointed out that the applicant had

not established that he had incurred commitments exceeding the

amounts paid as legal aid.

Having regard to the memorandum accompanying the claim submitted

under Article 50 (art. 50), and to the sums received from the

Council of Europe, the Court awards the applicant 1,000,000 drachmas

in respect of his lawyer's fees and expenses.

Of Mr Philis's travel expenses, only those resulting from his

participation in the hearing could taken into account, but they are

already covered by legal aid. Finally, the Court, making an

assessment on an equitable basis, considers that the applicant

should be awarded 800,000 drachmas to cover his general expenses.

C. Request for a declaration that the sums in question should be

exempt from attachment

79. The applicant asked the Court to specify in its judgment

that the sums awarded under Article 50 (art. 50) should be exempt

from attachment.

The Court takes the view that it is not in a position to accede to

this request.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been a violation

of the right of access to a court, guaranteed under

Article 6 para. 1 (art. 6-1);

2. Holds unanimously that it is not necessary to determine

whether in addition a "reasonable time" within the meaning of

the same Article (art. 6-1) was exceeded;

3. Holds unanimously that it is likewise not necessary to

examine the case either under Article 13 or under

Article 14 in conjunction with Article 6 (art. 13+6,

art. 14+6);

4. Holds unanimously that the respondent State must pay to the

applicant 1,000,000 (one million) drachmas for non-pecuniary

damage and 6,800,000 (six million eight hundred thousand)

drachmas for costs and expenses;

5. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 27 August 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention

and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of

Mr Pettiti is annexed to this judgment.

Initialled : R.R.

Initialled: M.-A.E.

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I did not vote with the majority for a violation of

Article 6 para. 1 (art. 6-1). In my view the applicant has not been

deprived of his right to a court or of his right of access to a

court within the meaning of the Golder judgment.

It is true that ex officio subrogation, provided for in

Decree no. 30 of 31 May 1956, occurs in the event of the refusal of

the debtor (the engineer's client) to pay. Under Article 2 para. 5

of the Decree, in conjunction with Article 83 of the Code of Civil

Procedure, the creditor retains the right to intervene at any moment

in the proceedings. It does not seem to me that this provision

takes away the right to bring proceedings or is prejudicial to the

payee, even though it alters the manner in which that right may be

exercised.

I do not consider it to have been established that, where the T.E.E.

refuses to exercise the right to bring proceedings, the person

concerned is definitively deprived of his right of action except in

order to seek payment of the fees to the T.E.E. The Athens Court of

Appeal, in its judgment of 16 November 1987, did indeed state that

only the T.E.E. had capacity to bring proceedings for the recovery

of fees, but in the light of the decision of the Larissa

Administrative Court of Appeal (judgment 8/1988) it remains possible

for the payee to take proceedings in person to recover his fees or

to sue the T.E.E. if the latter refuses to institute proceedings or

has been negligent in carrying out its duties under the subrogation

system. Furthermore, the engineer also has available to him the

"subrogation action" under Article 72 of the Code of Civil

Procedure, which is a clause of general application.

Since there is no consistent and definitive case-law from the Court

of Cassation on this question of principle (judgment 309/1986 being

of limited scope), I am of the opinion that it is premature to find

the Greek Government to be in breach of Article 6 (art. 6).