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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> BEÏS v. GREECE - 22045/93 [1997] ECHR 17 (20 March 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/17.html
Cite as: (1998) 25 EHRR 335, [1998] 25 EHRR 335, 25 EHRR 335, [1997] ECHR 17

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In the case of Beis v. Greece (1),

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 Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr J. De Meyer,

Mr N. Valticos,

Mr J.M. Morenilla,

Mr L. Wildhaber,

Mr D. Gotchev,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 29 November 1996 and

24 February 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 44/1996/663/849. 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.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the Greek Government

("the Government") on 13 March 1996, within the three-month period laid

down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,

art. 47). It originated in an application (no. 22045/93) against the

Hellenic Republic lodged with the European Commission of Human Rights

("the Commission") under Article 25 (art. 25) by a Greek national,

Mr Konstantinos Beis, on 18 March 1993.

The Government's application referred to Articles 44 and 48 (b)

of the Convention (art. 44, art. 48-b) and Rule 32 of Rules of

Court A. The object of the application was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Articles 6 para. 1 and 13 of the

Convention (art. 6-1, art. 13) and Article 1 of Protocol No. 1 (P1-1).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d), the applicant stated that he wished to take part in the

proceedings and designated the lawyer who would represent him.

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. 4 (b)). On 30 March 1996, in the presence of the

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

seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh,

Mr J. De Meyer, Mr L. Wildhaber, Mr D. Gotchev and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

Subsequently Mr J.M. Morenilla, substitute judge, replaced Mr Walsh,

who was unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

Government's memorial on 19 September 1996 and the applicant's memorial

on 23 September.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

27 November 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Georgakopoulos, Senior Adviser,

Legal Council of State, Delegate of the Agent,

Mrs K. Grigoriou, Legal Assistant,

Legal Council of State, Adviser;

(b) for the Commission

Mr A. Perenic, Delegate;

(c) for the applicant

Mr C. Chryssanthakis, professor of law and

member of the Athens Bar, Counsel.

The Court heard addresses by Mr Perenic, Mr Chryssanthakis and

Mr Georgakopoulos, and also their replies to questions put by four of

its members.

AS TO THE FACTS

I. Circumstances of the case

6. Mr Beis lives in Athens. He is professor of the law of

civil procedure in the University of Athens.

7. In March 1992 the head of the Legal Service of the

Greek Chamber of Technology (Techniko Epimelitirio Ellados - "the

TEE"), a public-law entity (nomiko prosopo dimosiou dikeou) with all

the immunities and other privileges of the State, instructed the

applicant - orally and saying that he was "acting on behalf of the

TEE" - to draw up two expert reports on proceedings brought against the

TEE by Mr Philis and Mr Samaras; it was agreed that Mr Beis would be

paid 7,500,000 drachmas (GRD) for the two reports. Mr Philis, an

engineer, had brought two actions for damages against the TEE, which

he accused of having badly defended his interests in an action to

recover fees. Mr Samaras, a lawyer with a long-term contract with the

TEE, had brought proceedings against it to challenge the termination

of that contract.

8. Mr Beis submitted the two reports to the head of the TEE's

Legal Service on 22 April 1992. However, the agreed fees were not paid

to him. According to the applicant, the relevant member (paredros) of

the Court of Audit (Elenktiko Synedrio) responsible for scrutinising

the TEE's expenditure before payments were made orally opposed the

payment on the ground that the reports could have been produced by the

TEE's Legal Service and that the expenditure was therefore not lawful.

9. On 4 May 1992 the TEE's Governing Body requested a

working party of seven experts - including the applicant - to (a) draft

a bill designed to amend the rules providing for the TEE's subrogation

to engineers' rights in their actions to recover fees, in the light of

the European Court of Human Rights' judgment on the matter; (b) prepare

a bill amending the provisions on the functioning of the TEE's

Legal Service; (c) study the actions brought by Mr Philis, in order to

assist the TEE's Legal Service by means of an expert opinion;

(d) express an opinion on the prospects of success of the appeals

pending in the case brought against the TEE by Mr Samaras; and (e) give

any other advice likely to facilitate the TEE's work. It was expressly

stated in the Governing Body's decision that the working party's tasks

were to be "carried out jointly and with the cooperation" of all its

members.

The working party was to submit its report by 15 June 1992.

The remuneration was to be GRD 10,500,000, which was to be paid to the

members of the working party after submission of the report, by a

decision of the Governing Body and according to the work each had done.

It was also stipulated that if the report was submitted late, the

agreement would not be valid and the members of the working party would

forgo any action against the TEE to recover fees.

10. On 8 May 1992 five members of the working party informed the

TEE's Legal Service that they had instructed Mr Beis to advise the TEE

on the cases brought against it by Mr Philis and Mr Samaras. The

applicant was to be paid GRD 7,500,000 out of the total sum offered by

the TEE. The other tasks would be carried out by the other members,

who would share the remainder of the sum.

11. On 12 June 1992 the vice-president of the TEE acknowledged

receipt of the two expert reports submitted by the applicant on

22 April 1992 (see paragraph 8 above).

12. On 9 July 1992 the TEE issued a warrant (no. 3495) in favour

of Mr Beis for payment of GRD 7,500,000 as remuneration for his

membership of the working party between 5 May and 12 June 1992.

However, on 29 July 1992 an auditor (epitropos) from the

Court of Audit - carrying out the prior scrutiny of the lawfulness of

the expenditure to which the TEE is subject under

Presidential Decree no. 766/1947 - refused to authorise payment of that

sum, taking the view that the expenditure was unlawful

(decision no. 20 of 29 July 1992); in his view, the report drawn up by

the working party had been within the competence of the TEE's

Legal Service. The TEE argued that the expenditure was lawful and on

18 August 1992 resubmitted the warrant for payment for approval by the

Court of Audit's auditor. The latter, however, persisted in his

refusal and on 16 September 1992 sent the case to the First Division

of the Court of Audit.

13. On 5 October 1992, as a result of some procrastination on the

TEE's part in paying him the agreed remuneration, the applicant made

an ex parte application to a single judge of the

Athens Court of First Instance (Monomeles Protodikio) for an order to

pay (diatagi pliromis). His application was granted on

12 October 1992. The order to pay (no. 12207/92) was based on the

following documents: the decision of the TEE's Governing Body of

4 May 1992, the acknowledgment of receipt of 12 June 1992 and the

Governing Body's approval of 9 July 1992 for payment of the fees to the

applicant.

On 21 October 1992 Mr Beis served the order to pay and the

notice to comply on the TEE, but the latter made no payment. He served

them again on 11 November 1992, after the time during which the TEE

could have made an application to have the order set aside (anakopi)

had expired (see paragraph 15 below).

On 24 November 1992 the First Division of the Court of Audit,

to which the auditor had sent the case, ruled as follows

(decision no. 631/1992):

"In order that special problems of major importance arising in

connection with the TEE's activities may be studied, special

advisory committees or working parties may be set up, composed

of technicians or researchers who are members of the TEE and

experts from other fields (lawyers etc.) who are not members

of it, on the basis of a decision by the Governing Body (or a

regional section of the TEE) for which due reasons must be

given (as to the advisability of establishing such a body, its

objectives, etc.).

These special advisory committees or working parties may

sometimes be asked to study and carry out a specific

`scientific project' connected with the general activities and

functioning of the TEE and not solely of the specialised

standing scientific committees (section 10 of

Law no. 1486/1984), provided that the statutory requirements

are satisfied, even where such a project comes within the

competence of the TEE's standing bodies.

These special committees or working parties may, therefore, be

given powers to study and carry out a scientific project

relating to problems of major importance which normally come

within the competence of the TEE's Legal Service under

Article 1 of Presidential Decree no. 883/1980.

As part of their task, these special committees or working

parties draw up their opinion after a preliminary meeting and

exchange of views ...; only a procedure of this kind makes it

possible to clarify the issue being dealt with and to

facilitate a thorough study of it by the relevant executive

bodies of the TEE.

An opinion given merely by a single member of one of these

committees or working parties therefore does not fulfil the

law's intention, even if that person acts under powers granted

him by the other members, since in that eventuality the

participation of those other members in the collegiate bodies

would be pointless.

The remuneration which may be paid to the members of these

special committees or working parties, as provided in

section 14 (2) of Law no. 1486/1984 and in Article 1(d) of the

legislative decree of 10 May 1946 (ratified by

Law no. 28/1946), is laid down by the TEE's Governing Body.

If the recipient is a civil servant or a salaried employee in

the public sector (State, public-law entities, etc.) referred

to in section 1 (6) of Law no. 1256/1982 ... - a university

professor, for example - this remuneration must not exceed the

threshold laid down in section 3 (4) of Law no. 1256/1982, in

other words 30% of the office-holder's usual total salary, as

laid down in joint decision no. 4391/2-3-1982 of the

Prime Minister and Minister of Finance ..., adopted under

section 3(4) of the aforementioned Law, which includes the

basic salary, the length-of-service allowance, the

study allowance, the family allowance, the corrective amount,

the wage-indexation allowance and other allowances specific to

certain categories of employee or civil servant.

The setting up of the working party to study `jointly and in

cooperation' the special issues mentioned in decision no. 1238

adopted by the TEE's Governing Body at its 30th meeting on

4 May 1992 and to carry out the tasks set out in that decision

must be regarded as lawful ..., regard being had to the

capital importance of the issues in question for the

functioning of the TEE and the inability of the TEE's

Legal Service, which had competence in this instance, to deal

with the issues satisfactorily.

The carrying out of this project individually by Mr Beis, one

of the members of the working party, who drew up his opinions

without any preparatory meeting being held or any exchange of

views on the issues between the members of the working party,

does not comply either with the TEE Governing Body's decision

no. 1238/4 May 1992, whereby the members of the working party

were instructed to carry out the whole project `jointly', or

with the provisions of Article 15 of the presidential decree

of 27 November and 14 December 1926.

The joint statement of 8 May 1992 by five of the members of the

working party, whereby they entrusted the carrying out of part

of the project to Professor Beis, was made in contravention of

the general principles of the functioning of collegiate

administrative bodies, since there is nothing to show that all

the (seven) members of the working party were invited to a

joint meeting to take a decision; furthermore, it contravenes

the terms of implementation of the whole project laid down by

the Governing Body of the TEE in decision no. 1238/1992 and the

provisions of Article 15 of the presidential decree of

27 November and 14 December 1926.

The expenditure which was the subject of the TEE's payment

warrant was accordingly not lawful, by reason of, inter alia,

the irregularities in the project's implementation.

In this connection, it is of little importance that it has not

been proved in the instant case that the remuneration of a

public servant for participation in a public-sector working

party was within the limits laid down in section 3(4) of

Law no. 1256/1992. The payment warrant in issue must

accordingly not be approved."

14. On 3 December 1992, when the judicial order to pay had become

final by virtue of Article 633 of the Code of Civil Procedure

(see paragraph 15 below), Mr Beis applied to the Bank of Greece for

attachment of a sum of GRD 7,500,000 in the TEE's account at the bank;

the bank, however, did not react.

In the meantime, pursuant to the order to pay obtained

ex parte, the TEE issued two new payment warrants (nos. 93 and 94) for

a total of GRD 7,625,000. On 12 February 1993, however, the auditor

in charge of the file at the Court of Audit refused to authorise

payment on the ground that the Court of Audit was not bound by the fact

that the judicial order to pay had become final after expiry of the

time allowed for any application to have it set aside. Under the

Court of Audit's settled case-law (see paragraph 16 below), the effect

of orders of this kind is indeed limited and does not correspond to

that referred to in Article 17 para. 3 of

Presidential Decree no. 774/1980 on the Court of Audit

(see paragraph 23 below). An ex parte order to pay therefore does not

constitute a judicial act comparable to a final court decision.

II. Relevant domestic law and practice

A. Ex parte orders to pay

1. The Code of Civil Procedure

15. The relevant provisions of the Code of Civil Procedure are as

follows:

Article 623

"Under the special procedure set out in Articles 623-34 of the

Code of Civil Procedure, an order to pay may be sought in

respect of a pecuniary claim or one pertaining to securities

if the debt and the amount owed are proved by an officially

recorded document or a private one."

Article 625

"The justice of the peace shall be competent to issue an order

to pay where the claim comes within the jurisdiction of his

court. In all other cases a single judge of the court of

first instance shall be competent. No hearing shall be held

upon an application for an order to pay."

Article 627

"The judge shall rule on the application as soon as possible,

without summoning the debtor to attend ...; the judge shall,

however, be entitled

(a) to require the applicant to attend to give

explanations answering his application;

..."

Article 628

"1. The judge shall dismiss the application

(a) if the legal requirements for making an order to pay

are not satisfied;

..."

Article 629

"The judge shall grant the application in so far as it is, in

his view, founded in law and in fact, and shall order the

debtor to pay the sum due and legal costs ..."

Article 631

"A judicial order to pay shall be enforceable."

Article 632 para. 1

"A debtor against whom an order to pay has been issued may

apply to have it set aside within fifteen days of service of

the order. The application to set aside shall be made to the

court having jurisdiction ratione materiae to hear the case."

Article 633

"1. If an application to set aside has been properly made

within the time prescribed by law and the reasons given for it

are lawful and well-founded, the court shall set aside the

order to pay; otherwise it shall dismiss the application to set

aside and confirm the order to pay.

2. If the application to set aside has not been made within

the time prescribed by law, the party in favour of whom the

order to pay has been made may again serve that order on the

debtor, who shall again be entitled to apply to have it set

aside within a period of ten days ... If no application to set

aside has been made within that time, the order to pay shall

become final and may only be challenged by means of proceedings

to reopen the case."

2. The Court of Audit's case-law

16. In a decision adopted at the tenth session of the full court

on 6 March 1985 the Court of Audit held:

"It follows from the [aforementioned] provisions ... that when

verifying the lawfulness of expenditure, the Court of Audit

also, if necessary, verifies the entitlement of the creditor

of the State, local authority or other public-law entity. If

the issue of entitlement has become res judicata (within the

meaning of Articles 322 et seq. of the Code of Civil Procedure)

as a result of a judgment by a civil court, that judgment is

binding on the Court of Audit. It is clear that the

estoppel per rem judicatam which thus prevents the

Court of Audit reopening that issue derives from the fact that

the civil court has examined the merits, in law and in fact,

of the claim ...

If, further, it is taken into consideration that by Article 633

para. 2 (b) of the Code of Civil Procedure, an order to pay

does not create an estoppel per rem judicatam but merely

'becomes final', it may be asserted that the effect of an

ex parte order to pay, just like its limits in objective and

subjective terms, is not identical with that of a

court decision and of its functions and limits.

This is because an order to pay is not a court decision and,

by Articles 631 and 904 para. 2 (b) of the

Code of Civil Procedure, is made, after the special procedure

laid down in Articles 623 et seq. of that Code, solely to

provide an enforceable instrument.

The review undertaken when an application is made under

Articles 632 and 633 of the Code of Civil Procedure to set

aside an order to pay does not cover the right in issue but

relates merely to the validity of the order to pay as an

enforceable instrument.

In the light of the foregoing, accepting the contrary argument

that the effect of an order to pay does not differ from that

of a court decision or is not of limited scope is to call in

question the constitutionality of the effect of an order to

pay, as the latter is made without the debtor being summoned

and without any adversarial hearing.

It must therefore be considered that the effect of an order to

pay is merely to deprive the defendant of his right to raise

preliminary objections unreasonably, such an estoppel

resembling ... the negative aspect of the

estoppel per rem judicatam created by a court decision (in that

the objections may not be considered again).

Consequently, the effect of an order to pay does not extend to

a finding as to the right in issue (the positive aspect of

res judicata); that being so, the Court of Audit is not bound

by such an order when it verifies the lawfulness of

expenditure, the claim merely being made enforceable by such

an order.

None of the foregoing deprives an order to pay of its

enforceability, although naturally that does not prejudice the

provisions on immunity from execution enjoyed under section 8

of Law no. 2097/1952 by the Greek State and, as a result of a

broad construction of that statute, by local authorities and

other public-law entities.

...

Acknowledgment and settlement of expenditure, like the orders

to pay relating to it, presuppose that the right of the

creditor of the State, local authority or other public-law

entity has been proved by means of relevant documents, as it

is not sufficient to rely on a claim whose enforceability

derives from a judicial order to pay, even if that order has

become final.

It must accordingly be accepted that when verifying the

lawfulness of expenditure, the Court of Audit is not bound by

the limited effect of the order to pay ..., as that effect does

not have the characteristics of the binding force referred to

in paragraph 3 of Article 17 of

Presidential Decree no. 774/1980 on the Court of Audit.

It follows that the right conferred by the effect of the order

to pay on the person who is claiming to be entitled to the

amount of the expenditure does not ipso facto make that

expenditure lawful and that the Court of Audit is under an

obligation to verify the lawfulness of that expenditure in all

its aspects."

B. Enforcement

1. Law no. 2097/1952 regulating certain cases to which the

Law on the collection of public receipts relates

17. Section 8 of Law no. 2097/1952 provides:

"Enforcement of judicial decisions (of civil or

criminal courts, the Supreme Administrative Court and the

Court of Audit) whereby the State is ordered to pay a debt or

legal costs shall be prohibited, as shall be that of any

authority to execute to the effect that the State must pay such

a debt.

Service of a demand for payment of such debts shall be

prohibited and if it is effected nonetheless, such service

shall in no way bind the State."

2. Case-law

18. The courts have accepted that the statutory provisions whereby

a public-law entity enjoys the same rights as the State in

judicial matters (Court of Cassation, judgment no. 108/71,

"Greek Lawyers' Review" no. 38, p. 317) or "enjoys, in general, on the

same footing as the State, all the judicial, administrative, financial

or other immunities and rights of the State" (decision no. 2311/1979

of the Athens Court of First Instance, "Greek Lawyers' Review" no. 38,

p. 762) have the consequence that the provisions of section 8 of

Law no. 2097/1952 apply to an entity of that kind.

The Court of Cassation has ruled (in judgment no. 1039/1995)

that section 8 of Law no. 2097/1952 is consistent with the

Greek Constitution and the European Convention in these terms:

"The privilege of immunity from execution enjoyed by the

Greek Railways Board ('the OSE') is not contrary to Article 4

para. 1 of the Constitution, relating to the equality of

citizens before the law, as that provision excludes only the

creation by the legislature of privileged positions with regard

to certain persons; it does not, however, preclude the

legislature from making special rules ... where they are

necessary in the interests of society or the public. Such

reasons exist here because the preferential treatment given to

the OSE is justified by the vital social objective the OSE

pursues, namely the provision of rail transport; it follows

that the State has a direct interest in ensuring that the OSE

operates without hindrance. Nor is this privilege contrary to

Article 20 of the Constitution guaranteeing citizens' rights

to legal protection by the courts ... Furthermore, extension

to the OSE of the privilege of immunity from execution enjoyed

by the State is not contrary either to Article 1 of the

First Protocol (P1-1) of 20 May 1952 ... or, lastly, to

Article 6 para. 1 (art. 6-1) of the Rome Convention of

4 November 1950 ..., as those Articles (P1-1, art. 6-1)

regulate other matters and not questions such as the present

one, with which they are quite unconnected."

As to the TEE, Article 41 of the presidential decree of

27 November and 14 December 1926 on the establishment of the TEE

provides:

"The TEE shall correspond independently and enjoy all the

privileges and immunities of the State, taking precedence

immediately after the National Engineering School."

C. Garnishee proceedings

19. The relevant Articles of the Code of Civil Procedure provide:

Article 985

"1. Within eight days of service of the notice of the

garnishee order, the garnishee shall be required to declare

whether the attached debt exists, whether the attached asset

is in his possession and whether the asset is subject to

another garnishee order emanating from someone else and, if so,

for what sum.

2. The declaration referred to in paragraph 1 shall be made

orally to the clerk to the justice of the peace for the

declarant's place of residence, who shall make a record of it.

3. Failure to make a declaration shall be tantamount to a

negative declaration. Failure to make a declaration or the

making of an inaccurate one shall render the garnishee liable

in damages to the creditor."

Article 986

"Within thirty days of the making of the declaration referred

to in Article 985, the creditor shall be entitled to have the

declaration set aside by the court ... An application for

compensation under Article 985 para. 3 may be made at the same

time."

20. In judgment no. 3/1993 the Court of Cassation, sitting as a

full court, held that Greek banks were prohibited by their

confidentiality obligations from supplying information about

bank accounts even where the account-holder had consented to

disclosure. The existence of that prohibition - failure to comply with

which was a criminal offence - meant that a bank's failure to make the

declaration referred to in Article 985 of the Code of Civil Procedure

was not tantamount to a negative declaration within the meaning of that

Article and could not be made the subject of an application to set

aside under Article 986. Thus the law indirectly prohibited

attachments of assets in the hands of Greek banks, but that did not

impair the legal protection afforded by court decisions or

judicial orders to pay obtained ex parte. That conclusion was also

confirmed by the fact that the legislature had not added to the rules

on bankers' confidentiality obligations a provision expressly

permitting such attachments (Dike, vol. 5, May 1994, pp. 497-506).

D. Relevant provisions relating to the TEE

21. Article 1 of Presidential Decree no. 883/1980 provides:

"There shall be set up within the TEE a Legal Service with the

following duties: (a) to be responsible for the conduct of

litigation and proceedings to which the TEE is a party and the

protection of the TEE's legal and non-legal interests before

all judicial or administrative authorities ...; (b) to assist

the TEE's organs and departments by giving opinions on legal

questions submitted to it; (c) to produce the drafts of bills,

decrees, etc., suggested by the TEE; and (d) to draw up

contracts of all types between the TEE and third parties."

In addition, by Article 15 of the presidential decree of

27 November and 14 December 1926 establishing the TEE:

"... If necessary, special committees shall be set up to

consider specific problems or working parties to implement a

specific scientific project; in addition to [members of the

TEE], specialists in other fields who are not members of the

TEE may also sit on these ..."

The TEE's expenditure is dealt with in the single Article of

Presidential Decree no. 766/1974, which provides:

"The following public-law entities shall not incur expenditure

without prior authorisation from the Court of Audit: ...

(2) The Greek Chamber of Technology (TEE) ..."

E. The Constitution

22. Article 98 of the Constitution provides:

"1. The Court of Audit shall be competent, in particular,

(a) to scrutinise expenditure by the State,

local authorities or other public-law entities made subject to

its control by special laws ...

2. The powers of the Court of Audit shall be determined and

exercised in accordance with the law ...

3. The judgments of the Court of Audit in the cases referred

to in paragraph 1 shall not be subject to review by the

Supreme Administrative Court."

F. The Court of Audit's control of public expenditure

23. Article 17 of Presidential Decree no. 774/1980 on the

Court of Audit provides:

"1. The Court of Audit

(a) ...

(b) shall, under Article 98 of the Constitution,

scrutinise the expenditure of the State and local authorities

and other public-law entities made subject to this control by

special laws, in order to verify that each item of expenditure

is charged to an appropriation authorised by law and that it

has been incurred in accordance with the provisions of the

Code of Public Accounts and the other relevant statutes or

regulations.

2. ...

3. In the exercise of its powers of review, the

Court of Audit may, if necessary, examine any ancillary issue

that arises, subject to the provisions on res judicata.

4. ...

5. The Court of Audit shall not have jurisdiction to review

the appropriateness of administrative acts.

..."

The procedure for prior scrutiny of expenditure (before

payment) is set out in Article 21 of the decree, which provides:

"1. If the scrutiny carried out shows that the requirements

of paragraph 1 (b) of Article 17 are, in respect of a given

item of expenditure, wholly or partly unsatisfied, the

competent member or auditor shall, in a reasoned decision,

refuse to approve the payment warrant issued by the authority

concerned and shall return the warrant with a copy of his

decision to that authority.

If the payment warrant is resubmitted to him, the relevant

member or auditor may either approve it - if the impediments

to approval have in the meantime be removed - or send it with

his report to the appropriate division of the Court of Audit,

which shall rule ...

The appropriate division of the Court of Audit ... may, on

account of the major importance or public interest of the

question raised, refer the case to the full court of the

Court of Audit ...

2. If the payment warrant has not been approved, the

appropriate Minister may seek the requisite approval from the

Court of Audit on his own responsibility ...

If the warrant is approved on the Minister's responsibility,

Principal State Counsel at the Court of Audit shall file a

report with the Minister of Finance, the Cabinet and Parliament

stating why payment has not been approved. If Parliament ...

does not ratify the warrant thus approved, the Court of Audit,

sitting as a full court, shall order that the Minister

concerned shall be liable for the amount stipulated in the

warrant.

..."

PROCEEDINGS BEFORE THE COMMISSION

24. Mr Beis applied to the Commission on 18 March 1993. He

maintained that the TEE's refusal to comply with a final order to pay

and the fact that in domestic law there was no means of compelling the

TEE to comply infringed Articles 6 para. 1 and 13 of the Convention

(art. 6-1, art. 13) and Article 1 of Protocol No. 1 (P1-1).

25. The Commission (First Chamber) declared the application

(no. 22045/93) admissible on 11 January 1995. In its report of

5 December 1995 (Article 31) (art. 31), it expressed the unanimous

opinion that there had been a violation of Article 6 para. 1 of the

Convention (art. 6-1) and Article 1 of Protocol No. 1 (P1-1) and that

no separate issue arose under Article 13 of the Convention (art. 13).

The full text of the Commission's opinion is reproduced as an annex to

this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-II), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

26. In their memorial the Government submitted that the applicant's

application must be declared inadmissible or be dismissed as being

unfounded.

27. The applicant requested the Court to

"make a formal finding that the Hellenic Republic has committed

the violations, to award [him] compensation for the pecuniary

and non-pecuniary damage [he has] sustained and the costs and

expenses he has incurred in the preparation of this

application, under Article 50 of the Convention (art. 50)".

AS TO THE LAW

THE GOVERNMENT'S PRELIMINARY OBJECTION

28. As they had done before the Commission, the Government

maintained that Mr Beis had failed to exhaust domestic remedies as he

had not brought a civil action in the ordinary courts (as opposed to

making an ex parte application for a payment order) or applied to the

Court of Audit for an order setting aside its decision no. 631/1992

(see paragraph 13 above) or challenged the Bank of Greece's implied

refusal to advise him whether or not the TEE had funds at that bank.

29. The applicant argued that the TEE had not applied - as it was

entitled to do under Article 633 of the Code of Civil Procedure

(see paragraph 15 above) - to have the payment order set aside. That

order had therefore become final and afforded him effective

judicial protection as his debtor could only have obtained release from

its debt to him by making an application for the proceedings to be

reopened, and it had not done so. If he, as a creditor, had then

brought a civil action, it would have been declared inadmissible on the

ground that he had no legal interest. Moreover, he could not have been

expected to bring lengthy and costly civil proceedings when his debt

was already protected by a final order for payment that was enforceable

and could not be challenged by the TEE.

As to the second limb of the objection, any further application

to the Court of Audit would have been pointless since, under its

settled case-law, it did not consider itself bound by an order to pay

(see paragraph 16 above).

Lastly, with respect to the third limb of the objection, a

challenge would have had no practical effect, owing to the TEE's

immunity from execution and the fact that the courts had held that

creditors could not attach their debtors' bank deposits

(see paragraphs 17 and 20 above).

30. The Commission had already considered the objection. In its

decision on admissibility it had decided to examine the three limbs

when considering the merits.

31. The Court is not minded, however, to follow the Commission's

approach in this regard. It notes at the outset that the instant case

is concerned with a private individual's inability to secure payment

of his remuneration for work done for a public-law entity because of

the opposition of the body responsible for verifying the lawfulness of

public expenditure and notwithstanding an order to pay issued by a

judge of the court of first instance.

32. Under Article 26 (art. 26) normal recourse should be had by an

applicant to remedies which are available and capable of remedying the

breaches alleged. The existence of the remedies in question must be

sufficiently certain not only in theory but in practice. Article 26

(art. 26) also entails a distribution of the burden of proof. It is

incumbent on the Government claiming non-exhaustion to satisfy the

Court that an effective remedy existed at the relevant time. Once they

have done so, it falls to the applicant to establish that the remedy

advanced by the Government was ineffective in the particular

circumstances of the case or that there existed special circumstances

absolving him from having to make use of it.

In applying the rule of exhaustion, the Court must take

realistic account not only of the existence of formal remedies in the

legal system of the Contracting Party concerned but also of the context

in which they operate and the personal circumstances of the applicant

(see the Akdivar and Others v. Turkey judgment of 16 September 1996,

Reports of Judgments and Decisions 1996-IV, pp. 1210-11, paras. 66-69).

33. So far as the first limb of the objection is concerned, the

Court notes that Mr Beis's remuneration was considered to be unlawful

both by the relevant member of the Court of Audit - when the agreement

between the applicant and the head of the TEE's Legal Service was

concluded (see paragraph 8 above) - and by the auditor of the

Court of Audit, when the applicant was officially instructed to draw

up his report as a member of the working party established by the TEE

(see paragraph 12 above). Despite initial hesitation (see paragraph 13

above), the TEE still wished to pay Mr Beis; it did not seek to have

the order to pay set aside and even issued two new warrants for payment

after the order to pay had become final within the meaning of

Article 633 para. 2 of the Code of Civil Procedure

(see paragraphs 13-14 above).

34. In his book on civil procedure the applicant himself

recognises, in the chapter on ex parte orders to pay, that the fact

that a debtor has lost the right to challenge such an order and to

apply for it to be set aside does not mean that the order to pay

creates an estoppel per rem judicatam, which is a characteristic of

court decisions. In spite of its binding nature, an order to pay -

which emanates from a judge - does not create an irrebuttable

presumption that the legal act that gave rise to the debt was valid

(K. Beis, Politiki Dikonomia, A. Sakkoulas, Athens, vol. IV,

pp. 157-58, 199 and 255-56).

Those statements are of particular importance in the

circumstances of the present case as the applicant's remuneration

represented public expenditure incurred by a public-law entity, the

TEE, and, as such, subject to prior scrutiny by the Court of Audit.

35. The applicant, a professor of the law of civil procedure, was

well placed to assess whether, having regard to the aforementioned

position taken up by the relevant organs of the Court of Audit and

especially the full court's decision of 6 March 1985 (which, though not

connected with the facts of the instant case, was delivered well before

they arose), an application for an order to pay was sufficient and

appropriate to ensure that he received his remuneration

(see, mutatis mutandis, the Melin v. France judgment of 22 June 1993,

Series A no. 261-A, p. 12, para. 24); the Court of Audit had said in

that decision that, when considering the lawfulness of public

expenditure, it was bound only by judicial decisions on the merits -

which, unlike orders to pay, concerned a determination of the right

underlying the debt (see paragraph 16 above).

36. The Court notes that Mr Beis had - as indeed he admitted - a

choice between applying ex parte for an order to pay and bringing a

civil action in the ordinary courts. The first course, which he chose

and which was admittedly quicker and cheaper than the latter, did not

suffice because of the Court of Audit's supervising organs' refusal to

authorise the expenditure for payment of his remuneration, in the light

notably of that court's decision of 6 March 1985. In contrast, the

second course, which the applicant could have taken from the time the

TEE hesitated to pay him the sum due (see paragraph 13 above), would

have enabled him to rely on a decision that would have been binding on

the relevant organs of the Court of Audit and would even have made it

possible to have the decision of the First Division of that court set

aside (ibid.).

In the circumstances of the case, the Court considers that the

applicant did not make use of an adequate and effective remedy such as

would have afforded the Greek authorities the opportunity of putting

right the alleged violations. The first limb of the objection of

failure to exhaust domestic remedies is therefore well-founded.

37. That conclusion makes it unnecessary to consider the other

limbs of the objection.

FOR THESE REASONS, THE COURT

Holds by eight votes to one that, as domestic remedies have not

been exhausted, it is unable to consider the merits of the

case.

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

hearing in the Human Rights Building, Strasbourg, on 20 March 1997.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the dissenting

opinion of Mr Ryssdal is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

DISSENTING OPINION OF JUDGE RYSSDAL

(Translation)

I regret that I am unable to concur in the opinion set out in

paragraphs 32 et seq. of the judgment.

Notwithstanding that the TEE may not have been authorised to

conclude the agreement concerned with Mr Beis, that agreement was made

and Mr Beis performed his part of it. After the TEE had issued the

payment warrant, Mr Beis made an application to the appropriate judge,

who granted him an order to pay, which under Articles 623 et seq. of

the Greek Code of Civil Procedure is an enforceable instrument

(Article 631) and becomes final if no application is made within the

prescribed time to have it set aside (Article 633 para. 2,

last sentence).

Under Greek law - as indeed under the law of several other

countries - a creditor is given a choice between bringing ordinary

proceedings or following the simplified procedure for obtaining an

ex parte order to pay. Where the law offers several courses of action,

it is for the person concerned to choose the one that appears to him

to be most suitable in his case.

For reasons which he does not have to account for, Mr Beis

chose to apply for an order to pay. Had the debtor wished to challenge

the lawfulness of that order, it could have had the order set aside and

the creditor would subsequently have had to bring ordinary proceedings.

Since no application was made to have the order to pay set

aside, it became final and enforceable. The fact that, unlike a

judgment delivered in ordinary proceedings, an order to pay does not

give rise to an estoppel per rem judicatam is not decisive.

As soon as the order to pay was made, the applicant was

entitled to payment of the amount stated in it. When faced with the

Court of Audit's refusal, he was therefore under no obligation to bring

ordinary civil proceedings, irrespective of whether such proceedings

would have been declared inadmissible because he had no interest in

bringing them.

I conclude that the applicant exhausted domestic remedies

within the meaning of Article 26 of the Convention (art. 26).



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