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

Registrar,

and 25 February 1997,

mentioned date:

(art. 25) by two British nationals, Mr David Hornsby and Mrs Ada Ann

Hornsby, on 7 January 1990. The applicants, who were designated by their

initials during the proceedings before the Commission, subsequently

consented to the disclosure of their identity.

and to the declaration whereby Greece recognised the compulsory

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

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 of the

Convention (art. 6-1).

of Rules of Court A, the applicants stated that they did not wish to take part

Registrar of their right to intervene (Article 48 (b) of the Convention and

Rule 33 para. 3 (b)) (art. 48-b), did not indicate any intention of so doing.

the elected judge of Greek nationality (Article 43 of the Convention) (art. 43),

and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)).

On 29 September 1995, in the presence of the Registrar, the President of

the Court, Mr R. Ryssdal, drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr A. Spielmann,

Mr J.M. Morenilla, Sir John Freeland, Mr L. Wildhaber and Mr D. Gotchev

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

through the Registrar, consulted the Agent of the Greek Government ("the

Government") and the Delegate of the Commission on the organisation of

Education in Athens for authorisation to establish in Rhodes a private

school (frontistirion) for the teaching of English (see paragraph 29 below).

On 25 January the Ministry refused the application on the ground that only

Greek nationals could be granted such authorisation by the provincial

secondary education authorities.

in person at the offices of the Dodecanese Secondary Education Authority,

but the responsible civil servant refused to acknowledge receipt. After a

complaint had been lodged by Mrs Hornsby’s lawyer, the authority

Communities. In a judgment of 15 March 1988 (no. 147/86, Commission of

the European Communities v. the Hellenic Republic), the Court of Justice

held that "by prohibiting nationals of other member States from setting up

frontistiria the Hellenic Republic [had] failed to fulfil its obligations under

Articles 52 and 59 of the EEC Treaty".

Dodecanese Secondary Education Authority and on the same day

Mr Hornsby separately sent the authority a similar application. On 12 April

1988 the authority refused both applications for the same reasons as it had

given in its reply of 5 June 1984 (see paragraph 8 above).

Minister to take the necessary steps to ensure compliance with the judgment

given by the Court of Justice on 15 March 1988 (see paragraph 9 above).

Administrative Court an application to set aside the decisions of the

Dodecanese Director of Secondary Education (see paragraph 10 above).

1361/1989), the Supreme Administrative Court set the decisions aside in the

following, identical terms:

respectively for pecuniary damage and loss of income, and GRD

100,000,000 for non-pecuniary damage.

the application inadmissible (judgment no. 32/1992) on the ground that the

dispute submitted to it came within the jurisdiction of the administrative

courts.

the State in the Rhodes Administrative Court. They relied, inter alia, on

Article 914 of the Civil Code and section 105 of the Introductory Law to the

However, those who did not possess a Greek secondary school-leaving

certificate had to pass an examination in Greek language and history.

Director of Secondary Education to resume consideration of the applicants’

request in the light of Presidential Decree no. 211/1994 and to keep the

Ministry informed of further developments.

the decree and urged them to take the necessary steps. On 7 February 1996

a frontistirion and to teach in one. He informed them that it was illegal for

under the relevant new legislation and asked them to regularise their

situation if they wished to avoid application of the statutory penalties.

the legislative provisions on the Supreme Administrative Court, of

present case, however, the administrative authorities had unlawfully failed

to comply with a final judicial decision and could be compelled to do so by

any of the numerous remedies afforded by the Greek legal system.

Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim

relating to his civil rights and obligations brought before a court or tribunal;

binding judicial decision to remain inoperative to the detriment of one party.

It would be inconceivable that Article 6 para. 1 (art. 6-1) should describe in

public and expeditious - without protecting the implementation of judicial

decisions; to construe Article 6 (art. 6) as being concerned exclusively with

(see, mutatis mutandis, the Golder v. the United Kingdom judgment of

Secondary Education had refused the applicants - solely on the basis of their

nationality - the authorisation they sought (see paragraphs 7-8 and 13

above). As a result of these judgments the applicants could then assert the

right to satisfaction of their requests; in repeating them on 8 August 1989

rules whose breach had led to the setting aside of the impugned decisions.

Nevertheless, the authorities did not reply until 20 October 1994 (see

paragraph 22 above). Admittedly, the applicants could have made a further

expect such a remedy to bring them the result they sought (see paragraph 37

after the above-mentioned judgments of the Supreme Administrative Court,

gave its ruling on the applicants’ case (see paragraph 13 above), until the

adoption of Presidential Decree no. 211/1994 on 10 August 1994 the Greek

legislation in force laid down no particular condition for nationals of

European Community member States who wished to open a frontistirion in

possession of a university degree, which the applicants satisfied (see

paragraphs 6 and 29 above).

objective of opening a frontistirion; when they applied on 3 July 1992 to the

Rhodes Administrative Court they sought compensation not only for the

damage they alleged they had sustained but also for the damage they would

continue to sustain up to the date on which the administrative authorities

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

Convention (art. 50), which provides:

find a violation, it would be possible under the Greek legal system for the

applicants to obtain compensation in full. Indeed, in the proceedings they

50 (art. 50) is not ready for decision, and that it must be reserved, due regard

being had to the possibility of an agreement between the respondent State

and the applicants (Rule 54 paras. 1 and 4).

1. Dismisses by eight votes to one the Government’s preliminary

2. Holds by seven votes to two that Article 6 para. 1 of the Convention

3. Holds unanimously that the question of the application of Article 50 of

Chamber power to fix the same if need be.

Human Rights Building, Strasbourg, on 19 March 1997.

Herbert PETZOLD

Registrar

Rule 53 para. 2 of Rules of Court A, the following separate opinions are

annexed to this judgment:

development through case-law of the concept of the "right to a court" in a

field - administrative proceedings - which has very deep historical roots in

the legal systems of many European States influenced by French

administrative law. The specific features which distinguish administrative

proceedings from civil proceedings are mostly based on the existence of a

decision on the part of the respondent public authority which has directly

harmed someone’s personal rights or legitimate interests.

comply with the judgments of the Supreme Administrative Court setting

comply with a final, enforceable judicial decision in the present case the

Greek authorities deprived the provisions of Article 6 para. 1 of the

Convention (art. 6-1) of all useful effect."

judgments given by the Supreme Administrative Court in connection with

the applicants’ applications to set aside the above decisions of the

competent administrative authorities refusing the authorisation sought. The

same question might arise, mutatis mutandis, in other systems based on the

French model of administrative proceedings.

the hierarchy as the supreme organ responsible for scrutiny of the

administrative authorities.

its primary purpose is to review the lawfulness of the impugned decision

(particularly by means of an application to set aside). In such proceedings

the administrative court, in setting aside the unlawful decision, exhausts its

powers. "Thus the judge can only set aside the unlawful administrative

decision, otherwise he would infringe the principle of the separation

between administrative authorities and administrative courts. He cannot, by

his own judicial decisions, try to fill in the vacuum created by the decision

to set aside" (see Debbasch-Ricci, Contentieux administratif, Paris, 1990, p.

1980, the Greek Supreme Administrative Court delivered the judgments

their part which was considered by the majority to constitute an

infringement of the applicants’ right to a court.

English-teaching school. The administrative authorities rejected this

application on the sole ground that such authorisation could be granted only

to Greek nationals. The Court of Justice of the European Communities held

that there had been a failure by Greece to comply with the requirements of

Articles 52 and 59 of the EEC Treaty, which conferred on the nationals of

to natural persons possessing the qualifications required for employment as

a teacher in a primary or secondary school in the public system, or having

equivalent academic qualifications". They also refer to Article 18 para. 1 of

the Civil Servants Code - Article 2 para. 3 of which also applies to

appointed to a civil service post who does not have Greek nationality", and

conclude: "It appears from these provisions that it is against the law for a

of continues to apply to all non-Greeks, without any distinction between the

nationals of other member States of the European Communities and the

nationals of non-member States - is unlawful and must therefore be set

aside. The application under consideration must accordingly be allowed. For

these reasons ... [t]he Supreme Administrative Court sets aside the Rhodes

Director of Secondary Education’s decision ..." (see paragraph 13 of the

judgment).

codifying the legislative provisions on the Supreme Administrative Court,

"The decision allowing an application for judicial review shall declare the

impugned measure void, which entails its general nullity, whether it is a

general or individual measure." Section 50 (4) provides: "In discharging the

obligation imposed on them by Article 95 para. 5 of the Constitution [see

paragraph 23 of the judgment], the administrative authorities must comply

with the judgments of the Supreme Administrative Court in the light of the

circumstances of each case, either by taking positive measures to that end or

by refraining from any action contrary to the Supreme Administrative

Court’s decision. Failure to do so may entail, in addition to ... criminal

penalties ..., personal liability in damages."

judgments were final decisions allowing Mr and Mrs Hornsby’s

administrative authorities’ refusal on account of any other illegalities which

might have vitiated it - relating, for example, to the question whether the

applicants had the qualifications required of Greek nationals by the

administrative proceedings to set aside cannot justify this denial of justice

nor require further procedural steps to be taken to obtain a new court

decision on a case where the applicants’ rights had been determined by the

highest administrative court. Nevertheless, the opinion of the majority is

Convention (art. 6-1) in accordance with the principles established in its

Preamble and in Article 3 of the Vienna Convention on the Law of Treaties,

that is to say in a teleological, autonomous and evolutive manner, adapted to

social needs. In the Golder judgment of 21 February 1975 (Series A no. 18,

p. 17, para. 35) the Court held: "The principle whereby a civil claim must be

capable of being submitted to a judge ranks as one of the universally

‘recognised’ fundamental principles of law; the same is true of the principle

of international law which forbids the denial of justice. Article 6 para. 1

(art. 6-1) must be read in the light of these principles."

personal rights are the subject of detailed argument between the parties

before a judge who must later make a final determination of them, seems to

be opposed to a rather abstract idea of justice in which the individual is

obliged to go to a court, as if he were responsible for law enforcement, to

contest the lawfulness of an administrative decision, though that decision is

prejudicial to his personal rights. Even if his application to set aside is

allowed, such a procedure cannot bring him redress for the injury done to

him because the court remits the case to the administrative authorities for

them to recommence the proceedings.

that the Supreme Administrative Court had allowed [the applicants’]

application, there is nothing to indicate that they would have obtained the

authorisation sought, as the authorities did not in practice always comply

Manoussakis and Others v. Greece judgment of 26 September 1996,

in the Scollo v. Italy judgment of 28 September 1995 (Series A no. 315-C,

authorities engages the responsibility of the Italian State under Article 6

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

outdated concept of historical administrative law (see Garcia de Enterria-

Fernandez Rodriguez, Curso de Derecho Administrativo, Madrid, 1986,

vol. II, pp. 36-54), on the effectiveness of the fundamental right of access to

members of the European Union, or of refusal to comply with a judicial

decision which had become "final and enforceable" in respect of a particular

litigant.

between a litigant who was a national of a Community member State and a

State which was a member of the European Union.

held that the Hellenic Republic had failed to comply with its obligations

under Articles 52 and 59 of the EEC Treaty by prohibiting EEC nationals to

set up frontistiria (language schools).

which reads:

authorisation to open a school, which was contrary to the decision of the

Court of Justice of the European Communities.

to grant the applicants authorisation to open a school. The refusal of

authorisation which gave rise to the judgments could not therefore, in my

opinion (and contrary to what is said in paragraph 45), be held for the

purposes of Article 6 (art. 6) to constitute a denial of justice for failure to

execute them directly.

Administrative Court, to make speedy arrangements to control access,

including regulations and forms for verifying qualifications, and to organise

the qualifying examination. The authorities’ failure to do so, in spite of the

deadlock. The control process adopted by the States of the European Union

in the matter of the directives relating to practice as a lawyer could have

there had been a breach of Article 6 (art. 6). The delay by the authorities in

certain extent, have amounted to a refusal of access and unwillingness to

accept a judicial solution, which would, if so, have constituted a violation of

not necessary as matters stood.