Canceling access to a court due to continuous postponements. The condemnation of the Court and how the Greek court has decided that there is no longer any reason to examine the case because of the postponements it has given itself!

JUDGMENT

Frezadou v. Greece  8.11.2018 (no. 2683/12)

see here  

SUMMARY

Application for the annulment of a nursery teacher before the Athens Administrative Court of Appeal. Termination of the trial without a decision. Right of access to a court.

The applicant, a nursery teacher had applied for the position of educational coordinator
abroad . She was not selected and in 2008 filed an appeal with the Administrative Court of Appeals with an application for the annulment of the appointment of the educational coordinator for two years. In 2009 and 2010, her lawyer submitted two requests for accelerating the proceedings, arguing that the length of the contested administrative act would expire soon. The Administrative Appeal Court has deferred five times because the administration has not submitted its views.

In 2009 and 2010 her lawyer submitted two requests to accelerate the proceedings, arguing that an
educational coordinator’s term of appointment lasted two years and that the contested
administrative act would soon expire.

However, after five adjournments, the courts discontinued the proceedings in 2011 because they
considered that Ms Frezadou did not have any special legal interest in pursuing her application
because the administrative act had expired.

Relying on Article 6 § 1 (access to court), Ms Frezadou alleged that the domestic courts’ failure to
consider her application for annulment had prevented her from having a judgment on the merits of
her case

THE IMPORTANCE OF THE CASE

Important decision for the protection of the party to the courts . The applicant has submitted an application for the annulment of a two-year administrative appointment. The Administrative Court of Appeals has been constantly postponing the Greek government’s submissions. It resulted in a decision after three years and the length of the contested administrative act had already expired. So the Court did not make a decision because it did not make any sense for the nursery teacher anymore. The Court did not forgive the court’s practice and convicted Greece of blocking access to a court. It is not possible for the national court to create, with procrastination and forbearance, conditions in which the party will lose his fundamental right of access to a court which includes a decision on his request.

PROVISION

Article 6 par. 1

PRINCIPAL FACTS 

 The applicant was born in 1962 and lives in Palaio Faliro.

She has worked as a kindergarten teacher for the Greek Ministry of Education since 1983. On 23 August 2005, following her participation in a selection procedure, she was appointed educational coordinator of the Hellenic Republic at the General Consulate of Greece in Chicago for a period of two years. On 14 August 2007 the Ministers of Education and Foreign Affairs issued a decision informing all educational coordinators abroad of the end of their term of service. On the same date, the Minister of Education issued a decision informing the educational coordinators that they were to remain in their posts until the completion of the next selection procedure. The applicant’s name was omitted from the second ministerial decision and the post of educational coordinator in Chicago remained vacant. She applied to have the decision annulled, which the Athens Administrative Court of Appeal agreed to do as the applicant had been omitted from the decision without any specific reasoning (decision no. 1363/2008). The applicant was therefore allowed to occupy the position until the successful completion of the next selection procedure.

 In the meantime, a call for applications for educational coordinators for the next two-year period was published on 27 November 2007. The applicant submitted an application. On 23 July 2008 the coordinators selection committee published a ranking of candidates in which the applicant, having received 48.00 points, was placed 13th among those who had chosen French as their foreign language. On 22 August 2008 the Official Gazette (Εφημερίδα της Κυβερνήσεως) published a decision by the Ministers of Foreign Affairs and Education to appoint the candidates who had been selected. The applicant was not included. That decision was revoked and replaced with a ministerial decision dated 29 August 2008 including the same content.

 On 24 September 2008 the applicant lodged an application for annulment of the ministerial decisions of 22 and 29 August 2008 on appointing the selected educational coordinators with the Athens Administrative Court of Appeal in so far as she had been omitted. The applicant complained that the ranking had not been published in the Official Gazette, as required by law, and that she had been erroneously awarded fewer points than she should have had.

On 16 July 2009 the applicant’s legal representative requested that the court accelerate proceedings, arguing that an educational coordinator’s term of appointment lasted two years and that the contested administrative act would soon expire. The hearing was scheduled to take place on 13 November 2009, but was adjourned to 5 March 2010.

 On 3 February 2010 the applicant submitted additional grounds of annulment. The 5 March 2010 hearing was adjourned to 4 June 2010 as the Ministry had not provided the court with its submissions regarding the additional grounds for annulment. On 27 May 2010 the applicant sent a memorandum to the Court, requesting that the case be heard speedily, adding that an eventual discontinuation of the trial would violate her rights under Article 6 § 1 of the Convention. Nevertheless, the hearing was again adjourned owing to the Ministry’s failure to provide submissions. Adjournments took place on 4 June, 17 September and on 8 October 2010. On 26 October 2010, the Ministry sent its observations to the court, and a hearing took place on 10 December 2010, when the two-year term for educational coordinators and the contested ministerial decision had already expired.

On 13 December 2010 the applicant submitted a memorandum requesting that the examination of her application for annulment be continued despite the expiry of the administrative act, arguing that she had special locus standi to continue to pursue the annulment process. In particular, she argued that if the contested act was annulled she would be credited with two more years of experience, which would improve her chances of being selected as a deputy coordinator of education in a future selection procedure.

On 16 March 2011 the Athens Administrative Court of Appeal published decision no. 508/2011 rejecting the applicant’s arguments. As regards her first reason for continuing the proceedings, it held that she had already been awarded the maximum number of points allowed by law for experience abroad. As regards her chances of being selected as a deputy coordinator of education in a future selection procedure, the domestic court held that that was not a lawful reason to continue the procedure in court, because it concerned an uncertain, future administrative procedure. Based on the above and on domestic law, the Athens Administrative Court of Appeal held that there was no need to adjudicate, on the grounds that the contested act was no longer in force (decision). As regards the applicant’s arguments that the eventual rejection of her application would violate Article 20 of the Constitution and Article 6 § 1 of the Convention, the domestic court held that the provision of Article 32 § 2 of Presidential decree no. 18/1989 served the legal aim of avoiding any unnecessary trials. The individual who had lodged the application was no longer in need of judicial protection as the contested act no longer had any unfavourable consequences. Having also regard to the possibility provided for by law to continue the trial if the individual could prove that he or she still suffered from unfavourable consequences that could be removed only by the annulment of the contested act, the right to judicial protection remained intact.

THE DECISION OF THE COURT 

The Court has additionally held that significant and recurring delays in the administration of justice are a particularly worrying phenomenon that could undermine public confidence in the effectiveness of the judicial system. Thus, in principle, it cannot be ruled out that, in exceptional cases, the maintenance of a pending procedure for an excessive period may affect even the right of access to a court. In particular, the unjustified absence of a decision by the trial court for a particularly prolonged period may inevitably amount to a denial of justice; the remedy exercised by the person concerned may be deprived of all its effectiveness, when the court concerned fails to settle the dispute in due time, as required by the circumstances and the issue of each particular case.

 The Court also notes that even at the hearing of 10 December 2010, the applicant’s application for annulment was not examined on the merits as, pursuant to Article 32 § 2 of the Presidential Decree no. 18/1989, the trial had been discontinued because the domestic court considered that the applicant did not have any special legal interest in pursuing her application after the date of the impugned act’s expiry. In this regard, the Court takes note of both parties’ arguments relating to the above-mentioned legal provision. However, it reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention.

The Court reiterates that when the domestic legal system offers a remedy to an individual, such as an application for annulment, the State has a duty to ensure that the person using it enjoys the fundamental guarantees of Article 6 of the Convention. In the present case, the applicant had a legitimate expectation that the courts would decide, either favourably or unfavourably, on her application for annulment. However, by adjourning the case on multiple occasions, despite its imminent expiration, and subsequently by applying Article 32 § 2 of Presidential Decree no. 18/1989, the Administrative Court of Appeal evaded its obligation to provide an answer to the question submitted concerning the legality of the contested act, which constitutes the very heart of the jurisdictional function.

The foregoing considerations are sufficient to enable the Court to conclude that the delay in the domestic authorities’ examination of the case, which resulted in the termination of the trial pursuant to the aforementioned legal provision, and consequently, to the applicant’s inability to secure a decision on her application for annulment, deprived the remedy exercised by the applicant of all its effectiveness, as the court in question failed to settle the dispute in due time, as required by the circumstances of, and the issue at stake, in the case. The applicant was thus deprived of her right of access to a court.

In reaching the foregoing conclusion, the Court attaches particular importance to the fact that the applicant used all the means at her disposal in order to accelerate the proceedings and yet had ultimately to bear the consequences of the domestic authorities’ inaction by not having her case examined. In this regard, the Court notes that following the lodging of the present application, the domestic legislation changed so as to enable the domestic courts to accelerate the proceedings by refraining from awaiting the Administration’s views when these have not been submitted on time. However, no such legal provision existed at the material time.

There has accordingly been a violation of Article 6 § 1 of the Convention.

Just satisfaction: EUR 4,000 (non-pecuniary damage) and EUR 2,480 (costs and expenses)(echrcaselaw.com editing). 

 


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