The Fillipino, the Consul and the disciplinary conviction. Failure to take account of all evidence by the Board of Directors renders the trial unfair.
JUDGMENT
Loupas v. Greece 20-06-2019 (application no. 21268/16)
SUMMARY
Six months suspension of the General Consul in Geneva for not paying overtime to a Filipino national working in her residence. The Greek State provided evidence before the Swiss courts to prove that the Philippines was not a personal employee of the Consul, but of the State, in order to establish extraterritoriality.
Preliminary investigation by the domestic authorities against the Consul General and disqualification from disciplinary liability. An application for annulment of the General Inspector of Civil Service against an exonerating decision by which the State overturned the position previously defended by Philippines as an employee.
The State Council did not take into account that the Greek State had provided evidence in Switzerland, alleging that the Philippines was not a personal employee of the Proxenus but of the state, and thus imposed disciplinary sanctions on the Consul.
According to the ECtHR, the decision by the CoE not to take into account all the evidence necessary to resolve the dispute and used to support the initial position of the Greek State’s defense in Switzerland violated the applicant’s right to a fair trial. Infringement of Article 6 § 1 of the Convention.
PROVISION
Article 6 § 1
PRINCIPAL FACTS
The applicant, Ekaterini Loupas, is a Greek national who was born in 1959 and lives in Athens.
The case concerned disciplinary proceedings and proceedings before the Supreme Administrative
Court as a result of which the applicant, who is currently an ambassador and who at the relevant
time was the Greek Consul General in Geneva, was suspended from duty for six months without pay
for a breach of official duties.
On 17 August 2007 the Geneva Employment Tribunal ordered Ms Loupas and the Hellenic Republic
jointly to pay the sum of 181,845 Swiss francs to N.P., a Filipino national who had been employed in
the applicant’s residence as a member of the domestic staff from October 2001 to December 2005.
The amount corresponded to a recalculation of N.P.’s salary and to payments for overtime and hours
worked on public holidays.
On 20 September 2007 the Hellenic Republic and Ms Loupas lodged an appeal with the Geneva
Employment Appeal Tribunal. On 5 February 2008 the Chair of the Tribunal declared the appeal
inadmissible. The Hellenic Republic and Ms Loupas lodged an application with the Federal Court to
have that decision set aside, without success. On the instructions of the Secretary General of the
Ministry of Foreign Affairs, the Ministry’s Inspector General opened an administrative inquiry. In a
decision of 28 May 2009 the disciplinary board of the Ministry of Foreign Affairs dismissed the
disciplinary charges against Ms Loupas alleging a breach of official duties, negligence in the
performance of her duties and conduct incompatible with the dignified representation of the
country. On 8 September 2009 the General Inspector of Public Administration applied to the
Supreme Administrative Court requesting it to set aside the acquittal decision of the Foreign Affairs
Ministry’s disciplinary board. The Supreme Administrative Court set aside the decision and imposed
a disciplinary penalty on the applicant in the form of a six-month temporary suspension without pay.
Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the
applicant complained that she had not been given a fair hearing because the Supreme Administrative Court had not taken into consideration some decisive official documents, but had based its ruling primarily on certain statements made by the rapporteur in the case to the disciplinary board of the Ministry of Foreign Affairs.
THE DECISION OF THE COURT …
The Court first noted that before the Labor Court in Geneva, Greece had produced several official documents to show that NP was not an employee of the applicant.
On the other hand, in the proceedings against the applicant before the Court of First Instance, the national court disregarded the arguments put forward by the State in the proceedings before the Swiss courts. The Board of Appeal questioned the fact that N.P. was not a consular staff member. In order to punish the applicant, the CoE, while the Disciplinary Board of the Ministry of Foreign Affairs exempts it, invoked a statement by the rapporteur in charge of the case.
Consequently, the Court found that there was a contradiction between the defendant State’s allegations before the Swiss courts and those judged in the domestic proceedings. Before the Swiss courts, the State invoked its immunity from jurisdiction and claimed that was an official of the consulate and not a personal employee of the applicant. On the other hand, in the context of the domestic proceedings, the State, in its application for annulment brought by the Inspector General of the Administration against the disciplinary decision, overturned the position previously defended by the Philippines not being a personal employee of the Consul, but was the State. In view of the overthrow of the state’s position, the CoE’s decision not to take into account all the evidence used to support the initial position of the Greek State’s defense in Switzerland, which was necessary to resolve the dispute, led the Court to rule that there has been a violation of the fair trial (Article 6 § 1).
Violation of Article 6 § 1
Just satisfaction: 1,000 euros (EUR) for non-pecuniary damage and EUR 2,488 for costs and expenses( echrcaselaw.com).
