CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 14486/88                       by P.                       against Greece             The European Commission of Human Rights sitting in private on 7 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 December 1988 by P. against Greece and registered on 19 December 1988 under file No. 14486/88;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the writiten observations submitted by the respondent Government on 11 June 1990;           Having regard to the observations in reply submitted by the applicant on 25 June and 27 July 1990;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the parties can be summarised as follows.           The applicant is a Greek citizen resident in Athens.   He is a journalist and publisher.   In the proceedings before the Commission the applicant is represented by Mr.   P. Bernitsas, a lawyer at the Athens Bar.           In 1964 the applicant entered into an agreement with the Greek Radio and Television (Elliniki Radiofonia kai Tileorasi - ERT), a public broadcasting enterprise which is under the control of the State and is a legal entity under private law.   The agreement provided that the applicant would be employed as commentator on current economic issues.           In October 1981 the Board of Directors of the ERT informed the applicant that it intended to restructure the information programmes concerning issues on economic policy.           On 14 January 1982 the applicant was informed that he was considered to have tacitly terminated his contract.           On 8 April 1982 the applicant lodged an action against the ERT with the Athens First Instance Court (Monomeles Protodikeio) and requested that the termination notice he received on 14 January 1982 be declared null and void and that the defendant be obliged to re-employ him and pay him 803,700 Drachmae for delayed salary.           On 23 September 1983 the Athens First Instance Court gave its decision accepting the applicant's claims.   It found in particular that the applicant did not belong to the so-called "internal staff" of the ERT and that he did not have to work in the premises of the ERT, but that he was a kind of free-lance collaborator who, in order to execute the work entrusted to him, ought to contact specialists on economic issues and consult economic literature not available in the ERT premises.   The Court found that the reasons invoked by the ERT for the termination of the agreement, namely the fact that the applicant did not come to work at a fixed time during the two months preceding the termination notice, could not constitute a violation of the agreement.           On 17 November 1983 the ERT appealed against the above decision.           On 21 March 1984 the Athens Court of Appeal (Efeteio) quashed the judgment of the Athens First Instance Court and rejected the applicant's claims.   It found that the applicant was obliged to come to the ERT premises at short intervals and that he did not respect this obligation during the two months preceding the termination notice.           The applicant appealed (anairesi) to the Court of Cassation (Areios Pagos) on 2 April 1984.           In his written pleadings he submitted, inter alia, that the reasons invoked by the ERT for the termination of his contract, namely the fact that he had not come to work at fixed hours, was only a pretext.   He noted that during the military regime he also had been considered as having tacitly terminated his contract although the reasons for his dismissal were obviously different.   The applicant concluded that he would leave to the discretion of the court, without any comments, the appreciation of the attempt by his opponents to introduce "new morals" into the social and judicial life of the country.           The Court of Cassation fixed the date of the hearing of the case at 4 December 1984.   However, the hearing was adjourned until 28 May 1985.   On that date it was further adjourned because of the general legislative elections.   On 8 October 1985 the hearing was again adjourned because of a lawyers' strike.   It was finally held on 8 April 1986.           On 20 May 1986 the Court of Cassation annulled the decision of the Court of Appeal.   The Court found that the challenged decision did not specify whether the applicant could be considered to belong to the ordinary staff of the ERT.   The Court referred the case to its fourth chamber to decide on the merits of the applicant's action.           The fourth chamber of the Court of Cassation decided on 13 April 1987, after a hearing held on 13 February 1987, to examine the applicant, the staff director of the ERT and two further witnesses.           The examination of the witnesses took place on 12 and 13 February, and on 4 March 1988.           On 9 June 1988 the Court of Cassation gave its decision rejecting the applicant's action.   COMPLAINTS   1.       The applicant complains that the proceedings concerning his action against the ERT were unreasonably lengthy and invokes Article 6 para. 1 of the Convention.   2.       The applicant moreover alleges that he was dismissed for political reasons and in particular for the ideas he expressed in his comments on economic policy issues and finds that his dismissal constitutes an interference with his right to freedom of expression. Furthermore he claims that he was treated differently from his other colleagues and alleges that he suffered discrimination.           The applicant invokes Article 10 of the Convention taken alone and in conjunction with Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 December 1988 and registered on 19 December 1988.           On 2 April 1990 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure that notice should be given to the Government of Greece of the application and that they be invited to submit wrritten observations on the admissibility and merits of the application.           The Government submitted these observations on 11 June 1990.           The applicant submitted observations in reply on 25 June and 27 July 1990.   THE LAW   1.       The applicant complains of the length of the court proceedings concerning his action against the ERT.           He invokes Article 6 para. 1 (Art. 6-1) of the Convention the first sentence of which reads as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Government submit that any possible delays in the proceedings complained of were essentially due to the conduct of the parties.   They also note that a certain delay was due to the general elections of May 1985 and to a lawyers' strike later that year.   These are facts which cannot be imputed to the competent judicial authorities.   The Government also submit that the proceedings before the Athens Court and the Court of Appeal were expeditious.   The proceedings before the Court of Cassation lasted more than three years.   In this respect they note that the Court of Cassation gave a first judgment quashing the decision of the Court of Appeal and examined subsequently the merits of the applicant's claim after having heard several witnesses.   Referring to the case-law of the European Court of Human Rights, the Government conclude that in these circumstances the length of the proceedings before the Court of Cassation cannot be regarded as unreasonable.           The applicant emphasises the fact that his case was pending before Greek courts for more than six years.   He also notes that according to Article 32 of Law 1545/1985 labour court proceedings should be particularly expeditious.           The Commission considers that this part of the application raises complex questions of fact and law which require an examination of the merits.   It follows that this part of the application cannot be considered manifestly ill-founded and must, therefore, be declared admissible, no other grounds for declaring it inadmissible having been established.   2.       The applicant also complains that he was dismissed for political reasons and that this fact constitutes an unjustified interference with his right to freedom of expression.   He invokes Article 10 (Art. 10) of the Convention taken alone and in conjunction with Article 14 (Art. 14) of the Convention.           The Government submit that the applicant has not exhausted the domestic remedies with regard to the above complaint.   The applicant contends that he submitted this complaint before the national courts dealing with his case.           The Commission recalls that the mere fact that an applicant has submitted his case to the various competent courts does not itself constitute compliance with the provisions of Article 26 (Art. 26) of the Convention, which requires that all domestic remedies must have been exhausted according to the generally recognised rules of international law.   It is also required that the substance of the complaint made before the Commission should have been raised during the proceedings concerned.           In the present case the applicant has insinuated in the domestsic proceedings that the termination of his contract was motivated by political reasons.   He did not, however, submit that his dismissal infringed his right to freedom of expression although it was possible for him to submit such complaint on the basis of Article 10 of the Convention, which directly applies in Greece, or on the basis of equivalent guarantees under the Greek constitution.   Therefore, he did not raise, either in form or in substance, the complaint which he now makes before the Commission.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaint in the proceedings referred to.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission unanimously           DECLARES ADMISSIBLE, without prejuding the merits of the         case, the complaint regarding the length of the proceedings.           DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.     Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)