Disciplinary sanctions and the violation of the fair trial by the national court that did not postpone the examination of the case and declared the Cancellation Application unacceptable
Vathakos v. Greece 28.06.2018 (no. 20235/11)
Disciplinary sanctions against a secondary school teacher for violation of professional duties. Convicted by a disciplinary court. No objection to the decision. After the expiry of the deadline for objection by the official, the Minister of Education raised an objection to the imposition of a stricter penalty. The Secondary Disciplinary Officer doubled the penalty. The applicant filed an Application for Cancellation against the decision of the Secondary Disciplinary Board. On the day of the trial, he asked for a postponement before he Administrative Court of Appeal due to his lawyer’s illness to attend with him and submit a Memorandum. Rejection ofn the postponement request and declarion of the cancellation request to be unacceptable because he did not file an objection before the Secondary Disciplinary Board. Violation of the fair trial because the applicant was hindered in his right to access a court to challenge the worsening of his disciplinary penalty.
Article 6 § 1
The applicant, Vassilios Vathakos, is a Greek national who was born in 1961 and lives in Skala Lakonias.
Mr Vathakos, who has civil-servant status, is a theologian and secondary-school teacher. In April 2005 the Regional Disciplinary Board for Secondary Education imposed a disciplinary penalty on him suspending him from duty for three months and suspending his salary for breach of professional
duties and indecent assault. In May 2005 the Minister for National Education lodged an objection in favour of the administrative authorities, seeking the imposition of a more severe penalty. In May 2006 the Disciplinary Appeals Board set aside the earlier decision and suspended Mr Vathakos for six
months without salary.
Mr Vathakos sought to have that decision set aside. The Athens Administrative Court declined territorial jurisdiction and referred the case to the Tripoli Administrative Court of Appeal. A hearing was held before that court on 14 June 2010. However, Mr Vathakos was not represented at the hearing. He asked the Administrative Court of Appeal to hold a fresh hearing in order to be able to appear with his lawyer and make his oral submissions. He referred to a case of force majeure to explain his lawyer’s absence at the hearing of 14 June 2010 and appended a medical certificate. The Tripoli Administrative Court of Appeal declared Mr Vathakos’s appeal inadmissible and dismissed his
application to have the proceedings reopened.
THE DECISION OF THE COURT
the Court recalls that access to a court must be “specific and real” and not theoretical. The real nature of the right of access requires a person to have the clear and concrete possibility to address an offending act that interferes with his rights. The right of access to a court includes not only the right to bring an action, but also the right to a litigation.
The right of access to a court is not absolute and therefore subject to restrictions. When establishing the conditions for access to a court, the Contracting States enjoy a certain margin of discretion. However, the restrictions imposed can not restrict access in such a way or to such an extent that the substance and the core of the right itself are affected. These restrictions are also incompatible with Article 6 § 1 only if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means used and the aim pursued.
The Court notes that Articles 142 and 164 of the Civil Servants Code as in force at the material time provided for a procedure to be followed by a civil servant who was sentenced by the Disciplinary Board and who wished to bring an action against the decision he imposed the sentence: the official had to appeal before the Secondary Disciplinary Board and subsequent administrative courts. Recourse to the Secondary Disciplinary Board was a prerequisite for recourse to administrative courts.
The Court considers that the abovementioned procedure seeks the legitimate aim of alleviating the administrative work of the administrative courts and seeks to enable the person concerned to settle his situation as soon as possible without being involved in lengthy and costly legal proceedings.
It remains to be determined whether the restrictions laid down in the procedure applied in the present case were proportionate to the aforementioned legitimate aim.
In the present case, the European Court of Human Rights notes that the applicant was ordered to take the disciplinary penalty for the suspension of his duties and to deprive his remuneration for three months. That decision was imposed on him by the Disciplinary Board of Secondary Education following a written and oral hearing in which the applicant himself had given his defense. The decision notified to the applicant on 22 April 2005 stated that he had the right to appeal to the Disciplinary Board within twenty days of the notification.
The applicant states that he accepted the sentence imposed on him and that he did not apply to the Secondary Disciplinary Board for that reason. The Court does not dispute that statement by the applicant in so far as he allowed the twenty-day time-limit to expire without reacting, while appealing against the decision imposing the sentence, either himself or by a lawyer.
The Court notes, however, that on 16 May 2005, that is, at a time when the twenty-day period had already expired, the Administration lodged a complaint against the decision of the Regional Disciplinary Board in order to obtain a stricter penalty for the applicant. Subsequently, on 16 May 2006, the Disciplinary Board of Appeal imposed on the applicant a six-month suspension of duties with deprivation of pay. Following the imposition of this heavier sentence, the applicant filed an application for the annulment of that decision before the administrative court of appeal, which the Court of Appeal rejected because he had not appealed to the Disciplinary Board.
The Court also takes into account the government’s assertion that the applicant could have recourse to the Secondary Disciplinary Board, since in that case there would be no more severe punishment in the second instance. This claim did not convince the European Court of Human Rights in so far as the applicant’s complaint relates to his access to the administrative courts following a worsening of his sentence. However, if he had appealed to the disciplinary offender and had succeeded in reducing or canceling his sentence, he would have no reason to appeal to those courts.
The Court pointed out that the decisions of the Council of State submitted by the Government to show that the action before the Disciplinary Board is a condition of admissibility for the action before the administrative courts do not correspond to the facts of the present case. These decisions concern cases in which the party concerned either had lately filed his application or had not been informed of his right to lodge a complaint before the Secondary Disciplinary Board
Violation of Article 6 § 1
Just satisfaction: EUR 3,200 (non-pecuniary damage)(echrcaselaw.com editing).