CASE OF STAMOULAKATOS v. GREECE (No. 2)
Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
C. Russo;N. Valticos
6. The applicant is a Greek national born in 1936 and currently resident in the United Kingdom. 7. On 23 February 1987 he submitted to the Prefecture of Athens an application for a disability pension under section 31 of Law no. 1543/85. 8. On the orders of the Prefecture an administrative inquiry was carried out by the Municipality of Moshato, which concluded on 15 December 1987 that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered irreparable damage to his health as a result. 9. On 29 January 1988 the Health Committee of the Prefecture of Athens advised the General Accounting Office of the State (Geniko Logistirio tou Kratous) to grant the applicant a pension. The Health Committee considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured. As a result, his right hand was paralysed. 10. On 23 May 1988 the Pensions Regulatory Service (Ypiressia Kanonismou Syntaxeon) of the General Accounting Office rejected the applicant’s application on the ground that the conditions of section 31 of Law no. 1543/85 (see paragraph 19 below) were not fulfilled. The General Accounting Office considered that the applicant’s allegations were not proved by court decisions or public documents issued before 14 June 1984 and that the applicant had not been injured as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto. On 14 June 1988 the applicant appealed to the Audit Court (Elenktiko Synedrio). 11. The applicant’s appeal was heard by the Third Chamber of the Audit Court on 2 December 1988. It was rejected on 10 March 1989. The Third Chamber considered that the applicant’s allegations were not proven by a court decision or public document issued before 14 June 1984. It also found that the torturing of the applicant during the dictatorship had not resulted in an “injury” but in an “illness”. The law, however, provided for the award of a pension to persons who had been “injured” as a result of their opposition to the dictatorship. 12. On 17 April 1989 the applicant lodged an appeal on points of law with the Audit Court sitting in plenary, claiming that the Third Chamber had erred in law. 13. The Plenary held a hearing on 9 October 1991 at which the applicant did not appear. On 24 June 1992 the Audit Court decided that the applicant had not been duly summoned and adjourned the case. 14. Another hearing was held on 4 November 1992 at which the applicant was duly represented. On 26 May 1993 the Audit Court upheld the applicant’s appeal, on the ground, inter alia, that the Third Chamber had failed to examine in depth the cause of the paralysis of the applicant’s right hand. It sent the case back to its Third Chamber for reconsideration. 15. The Third Chamber held a hearing on 22 October 1993 at which the applicant was neither present nor represented. On 28 January 1994 it decided to adjourn the case. It ordered the applicant to produce within two months a number of decisions issued in the context of criminal proceedings against the applicant before 14 June 1984. It also sent the applicant’s file to the Health Committee of the Region of Attica ordering it to examine the applicant and to deliver an opinion on the following issues: Was the applicant’s paralysis the result of “injury” or “illness”? What was the extent of his disability? Was there any relationship between his disability and his activities during the dictatorship? 16. On 25 November 1994 the Health Committee considered that it could not deliver an opinion on the applicant’s case in the absence of any evidence that the applicant’s health condition was related to his activities during the dictatorship. On 29 March 1995 the applicant was informed of the Committee’s decision not to deliver an opinion. 17. On 6 October 1995 the Third Chamber of the Audit Court held a fresh hearing. 18. A further hearing was held on 29 November 1996. The Court has not been informed of any decision of the Third Chamber of the Audit Court. The Government state that judgment is to be delivered shortly. 19. Section 31 of Law no. 1543/85 provides the following: “All Greek citizens who were injured by or as a result of their direct involvement in the struggle against the dictatorial regime of 21 April 1967 to 23 July 1974 or as a result of their opposition to the above-mentioned regime are entitled to a pension paid by the State Treasury, provided that the above-mentioned circumstances have been recognised in a court decision based on public documents issued no later than 14 June 1984. ...” This provision does not create a right to a pension for persons who contracted an illness, as distinct from an injury, through their opposition to the dictatorship. Such a right was however created by a law of 1988 which is not relevant to the present case. 20. The award of a pension is not automatic but has to be applied for through the Prefecture to the Pensions Regulatory Service of the General Accounting Office. 21. An objection against the decision of the Pensions Regulatory Service can be brought before the Pensions Verification Board of the General Accounting Office (Article 66 of the Civilian and Military Pensions Code). An appeal lies within one year to a Chamber of the Audit Court (Article 48). A further appeal, on points of law, lies within one year (Articles 109 and 114) to the plenary Audit Court, which has the power to refer the case back to the competent Chamber (Article 116).