CASE OF FREZADOU v. GREECE

FIRST SECTION

CASE OF FREZADOU v. GREECE

(Application no. 2683/12)

JUDGMENT

STRASBOURG

8 November 2018

FINAL

08/02/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Frezadou v. Greece,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Ksenija Turković, President,
Linos-Alexandre Sicilianos,
Aleš Pejchal,
Armen Harutyunyan,
Pauliine Koskelo,
Tim Eicke,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 16 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2683/12) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Ms Eleni Frezadou (“the applicant”), on 22 December 2011.

2. The applicant was represented by Mr N. Kondylis a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor to the State Legal Council.

3. The applicant alleged that the domestic courts’ failure to review her application for annulment on time, which led to the termination of proceedings on the grounds that the contested administrative act had expired, had violated her right of access to a court.

4. On 2 June 2017 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

II. RELEVANT DOMESTIC LAW

13. The relevant provisions of Presidential Decree no. 18/1989 read as follows:

Article 23

“1. The Administration or the legal person operating under public law against which the application for annulment or the legal action has been lodged, has the obligation to send their views for each of the submitted reasons...”

Article 24

“1. The omission to send on time to the Council the data and information foreseen in the previous Article, as well as the relevant report, constitutes a disciplinary offence of the competent employees...”

Article 25

“1. The submission of additional grounds of annulment is allowed by lodging a legal document in accordance with Article 19 § 1 which shall be communicated by the person who lodged the legal remedy at least fifteen full days before the hearing, or else it shall be declared inadmissible...”

Article 32

“... 1. There is no need to adjudicate if the contested act or judicial decision has been revoked, cancelled or repealed following application for a legal remedy.

2. Similarly, there is no need to adjudicate if the contested act has stopped being valid for any reason following the lodging of an application for annulment and by the first hearing of the case, unless the applicant invokes a special interest which justifies continuation of the trial ...”

14. By Law no. 4055/2012, Article 24 of Presidential Decree no. 18/1989 was amended to include a third paragraph. Pursuant to this, if the case has been adjourned once due to failure of the Administration to provide the relevant data and information, the domestic court may proceed to adjudicate and may consider that the Administration has admitted the factual basis of the applicant’s allegations.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

15. The applicant complained that the domestic courts’ failure to review her application for annulment on time, which led to the termination of proceedings on the grounds that the contested administrative act had expired, had violated her right of access to a court, as provided in Article 6 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

16. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

17. The respondent Government firstly objected that the complaints were incompatible ratione materiae with the provisions of the Convention.

18. The Government contested the applicability of Article 6 on two grounds, namely whether the proceedings before the domestic court were “directly decisive” for the applicant’s rights and whether she had a right which was “civil” in nature.

19. As regards the first grounds, the Government maintained that the results of the proceedings before the Court of Appeal had not been directly decisive in relation to any of the applicant’s civil rights. Even if the Court of Appeal had annulled the contested procedure, this would not automatically have led to the appointment of the applicant as an educational coordinator, but to a new procedure. As regards the second grounds, the Government maintained that the dispute had been purely administrative in nature and not civil.

20. The applicant disputed the Government’s submissions. Relying on the Court’s judgment in Vilho Eskelinen and Others [GC] (no. 63235/00, ECHR 2007‑II) and the criteria mentioned therein, she maintained that the civil character of her right was undisputed, especially if one takes into account the Court’s case-law relating to high-ranking public officials and not merely to civil servants, as was her case. Turning to the question whether domestic proceedings were directly decisive for her right, the applicant maintained that the judgment of the domestic court would have directly affected her employment status, and that that argument was corroborated by the fact that national law did not prevent this kind of dispute from being challenged before the courts. In addition, she argued that had she been allowed to occupy the position for the subsequent two years, she would have gained serious financial benefits in terms of salary.

2. The Court’s assessment

(a) General principles

21. The Court reiterates that for the “civil” limb of Article 6 § 1 to be applicable, there must be a dispute (contestation in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).

22. Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005‑X, and Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012).

23. In this connection, the Court observes that the rights conferred by domestic legislation can be substantive or procedural, or, alternatively, a combination of both. There can be no doubt about the fact that there is a right within the meaning of Article 6 § 1 where a substantive right recognised in domestic law is accompanied by a procedural right to have that right enforced through the courts (see Regner v. the Czech Republic [GC], no. 35289/11, §§ 101-102, 19 September 2017). Furthermore, in some cases, national law, while not necessarily recognising that an individual has a subjective right, does confer the right to a lawful procedure for examination of his or her claim, involving matters such as ruling whether a decision was arbitrary or ultra vires or whether there were procedural irregularities (see Van Marle and Others v. the Netherlands, 26 June 1986, § 35, Series A no. 101, and, mutatis mutandis, Kök v. Turkey, no. 1855/02, § 36, 19 October 2006). This is the case as regards certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which, where they find that the decision was unlawful, may set it aside. In such a case Article 6 § 1 of the Convention is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right (see Regner, cited above § 105).

24. As to the “civil” nature of the right, the Court developed in Vilho Eskelinen the criteria for the applicability of Article 6 § 1 to employment disputes concerning civil servants. According to these criteria, in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. First, the State, in its national law, must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others, cited above, § 62).

25. The Court also notes that the criteria set out in the Vilho Eskelinen judgment have been applied to all types of disputes concerning civil servants and judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012), transfer (see Ohneberg v. Austria, no. 10781/08, § 25, 18 September 2012) and termination of service (see Baka, cited above, § 109).

26. As regards the criterion set out in the Court’s case-law that the result of the proceedings must be directly decisive for the right in question, the Court had previously held in cases concerning recruitment or promotion procedures that in so far as the proceedings would not result in the applicant’s appointment or promotion but in the annulment of a third person’s appointment or promotion, they had only remote consequences for the applicant and, therefore, Article 6 was not applicable (see Revel and Mora v. France (dec.), no. 171/03, 15 November 2005, and Tencheva‑Rafailov v. Bulgaria (dec.), no. 13885/04, 5 January 2010). However, the Court later considered that an applicant who possessed all the necessary qualifications for a post and could legitimately expect to obtain it, could invoke Article 6 as the outcome of the proceedings would be directly decisive for his or her right to participate in a recruitment procedure conducted in compliance with the principles of legality and transparency, where such right was arguably recognised under the domestic law (see Fiume v. Italy, no. 20774/05, § 35, 30 June 2009; see also Majski v. Croatia (no. 2), no. 16924/08, § 50, 19 July 2011 and Juričić, cited above, § 52, in which the Court found Article 6 applicable in relation to the right to equal participation in a competition for public office and implicitly rejected the Government’s objection that the proceedings were not directly decisive for the right in question). Similarly, in Tsanova-Gecheva v. Bulgaria (no. 43800/12, § 84, 15 September 2015), the Court held that the proceedings were decisive for the applicant’s right to a lawful and fair promotion procedure in so far as they could have ended in the annulment of the contested procedure and the organisation of a new competition for the post, if the domestic courts had granted the applicant’s appeal (see also Dzhidzheva-Trendafilova cited above, § 43).

(b) Application of the above principles to the present case

(i) Existence of a right

27. As regards the existence of a right in the present case, the Court notes that the domestic proceedings concerned the applicant’s complaint as regards the ministerial decision to appoint some individuals to the vacant posts of educational coordinators, for which posts the applicant had also applied. In particular, the applicant questioned the legality of the procedure followed, in connection with the omission of the Administration to publish the ranking of the relevant candidates, and the way in which she had been graded, on the grounds that the Administration had breached the principles of sound administration and of protection of legitimate expectations.

28. The Court observes that neither Article 6 nor any other provision of the Convention or its Protocols guarantees, as such, a right to appointment or promotion in the civil service (see Glasenapp v. Germany, 28 August 1986, §§ 48-49, Series A no. 104; Kosiek v. Germany, 28 August 1986, §§ 34-35, Series A no. 105; Vogt v. Germany, 26 September 1995, § 43, Series A no. 323; and Wille v. Liechtenstein [GC], no. 28396/95, §§ 40-41, ECHR 1999-VII). The Court has, however, accepted, in circumstances similar to those of the present case, that the right to a lawful and fair promotion procedure (see Dzhidzheva-Trendafilova, cited above, § 43, Fiume, cited above, § 35, and Penttinen v. Finland (dec.), no 9125/07, 5 January 2010) or to equal participation in a competition for public office (Juričić, cited above, § 52) could be considered as recognised rights in domestic law, at least arguably where the domestic courts had recognised their existence and had examined the relevant complaints of the applicants (see Tsanova-Gecheva, cited above, § 84).

29. This appears to be the case in the present application, since domestic law gave the candidates who fulfilled the formal requirements specified in the relevant provisions the right to apply to be appointed as educational coordinators, a post which the applicant had occupied in the past. It should also be noted that domestic law provided judicial remedies against decisions not to appoint applicants to certain posts. As a result, the applicant had the right to challenge before the domestic courts the fact that she had not been chosen for the posts and the legality of the procedure followed. Additionally, the Court of Appeal did not reject the applicant’s complaints against the decision on the grounds of the non-existence of a right, but merely because the contested act had expired and, in their view, there was no longer any reason to adjudicate on the validity of the contested act.

30. Accordingly, in the light of the domestic legislative framework, the Court considers that the applicant could arguably claim to have had a right to participate in a lawful and fair recruitment procedure in public service.

(ii) Civil nature of the right

31. The Court must now determine whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1, in the light of the criteria developed in the Vilho Eskelinen judgment.

32. As regards the first condition of the Eskelinen test, that is, whether national law “expressly excluded” access to a court for the post or category of staff in question, the Court notes that in the present case the applicant had had the right to contest the procedure under which educational coordinators were appointed, in so far as her name had been omitted. The above consideration is not affected by the fact that the domestic court did not ultimately pronounce on the legality of the act for reasons other than the exclusion of access to a court for the specific post. In the light of the foregoing, it cannot be concluded that national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the appointment procedure. Therefore, the first condition of the Eskelinen test has not been met. Given that the two conditions for excluding the application of Article 6 must be fulfilled, the Court considers that it is not necessary to examine whether the second condition of the Eskelinen test was met (see Baka, cited above, § 118).

(iii) Existence of a dispute

33. Having regard to its case-law (see paragraph 26), the Court also accepts that the proceedings at issue were directly decisive for the applicant’s rights in so far as the proceedings could have ended in the annulment of the contested act and the organisation of a new competition for the position.

(iv) Conclusion

34. In the light of the foregoing, the Court concludes that Article 6 applies under its civil head. It follows that the Government’s preliminary objection as to the applicability of Article 6 § 1 of the Convention must be dismissed.

35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

36. The applicant complained that the failure of the domestic courts to consider her application for annulment on time had violated her right of access to a court, as she had been prevented from having a judgment on the merits of the case. This failure was partly due to the Administration’s delay in providing their views on the invoked grounds for annulment, which, pursuant to Article 24 of Presidential Decree no. 18/1989, constituted a disciplinary offence, and partly due to the domestic courts’ inaction. For her part, the applicant had used all the possibilities provided for by domestic law in order to accelerate the proceedings and had drawn the domestic courts’ attention on many occasions to the risk of the contested act expiring before they had a chance to consider it. She was not to blame for having exercised her procedural right to have submitted additional grounds for annulment, as she had done so within the deadlines provided for by law, that is to say a month before the scheduled hearing of 5 March 2010.

37. In addition, the applicant claimed that the domestic courts had erroneously applied Article 32 § 2 of the Presidential Decree 18/1989. While that legal provision served the legitimate aim of not conducting trials when the contested act had ceased to exist, its application in the circumstances of the present case, in conjunction with the above-mentioned delays, had violated her right of access to a court. In particular, the applicant had duly lodged an application for annulment within the time-limit, had complied with all the procedural rules and had paid the relevant court fees in order to have her case examined. Therefore, the termination of the trial in application of Article 32 § 2 of Presidential Decree no. 18/1989 had been disproportionate, as the domestic courts had failed to take into account the specific facts of the case and the conduct of the applicant, who had not contributed to the delay and the subsequent termination of the proceedings. The applicant stressed that in the end she had been forced to bear the burden of the Administration’s and domestic courts’ inactivity.

38. The applicant also complained about the dismissal of her arguments concerning her continued interest in pursuing the application for annulment, arguing that it constituted a traditional method used in Greek courts to dispose of applications, thus creating a large category of administrative acts which escaped judicial review. Relying on the Court’s judgment in N.T. Giannousis and Kliafas Brothers S.A. v. Greece (no. 2898/03, 14 December 2006), the applicant claimed that the Court had already criticised the broad interpretation and application of the said domestic provision. She referred, inter alia, to many judgments of the Supreme Administrative Courts in which proceedings had been terminated in application of the same legal provision.

39. The Government claimed that the applicant had, in substance, complained about the domestic court’s decision to dismiss her application under Article 32 § 2 of Presidential Decree no. 18/19898. In this regard, the Government argued that it was not the Court’s task to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

40. The Government further argued that the trial proceedings brought by the applicant had had no object following the expiry of the contested act. The applicant was no longer in need of judicial protection as the contested act no longer had any unfavourable consequences for her. In this regard they stressed the legitimate aim pursued by Article 32 § 2 of Presidential Decree no. 18/1989, which was the avoidance of the conduct of unnecessary trials, and claimed that that provision complied with Article 6 § 1 of the Convention in view of the fact that the person concerned was no longer in need of judicial protection. If that person could prove that he or she was still affected by the expired administrative act, then the law allowed him or her to pursue his or her application. Therefore, the legitimate aim pursued could not be said to have been disproportionate to the restrictions to the applicant’s right of access to a court.

41. The Government further argued that the domestic court’s decision had been fully reasoned and had examined all the applicant’s arguments in relation to her legal interest in pursuing her application despite the expiry of the impugned administrative act. The applicant had failed to demonstrate that that act would have continued to generate unfavourable consequences for her in the future or that the unfavourable consequences would have been maintained, and therefore the domestic court had been right to reject her application. In addition, they rejected the applicant’s argument that there was an established practice in the domestic courts of dismissing applications without reviewing the essence of the dispute, and adduced two judgments of the Supreme Administrative Court which had held that even though the contested acts had expired the applicants had proved a special legal interest and, accordingly, their applications had been examined.

42. Lastly, they stressed that the applicant herself had contributed to the delay in the proceedings as she had lodged additional grounds for annulment one year and four months after having lodged her initial application for annulment. The Government concluded that the applicant’s right of access to a court had not been violated in the circumstances of the present case, nor had the applicant borne any disproportionate burden, in view of the public interest pursued by national legislation.

2. The Court’s assessment

43. The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention, which lays down guarantees as regards both the organisation and composition of the court and the conduct of the proceedings. The combination of all these safeguards makes up the right to a fair trial secured by Article 6 § 1 (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). However, the right of access to the courts is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 89, 29 November 2016).

44. 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 (see Vassilios Athanasiou and Others v. Greece, no. 50973/08, § 52, 21 December 2010).

45. Turning to the circumstances of the present case, the Court notes that the applicant duly submitted her application for annulment which was scheduled for hearing on 13 November 2009. The contested act, by its nature, called for a speedy examination of its validity as its duration was for a period of two years, and was therefore liable to expire soon, a fact which the applicant’s representative stressed with his two memoranda, submitted on 16 July 2009 and 28 May 2010. However, adjournments took place on 13 November 2009, 5 March, 4 June, 17 September and 8 October 2010, until the case was finally heard on 10 December 2010. With the exception of the first adjournment, on which no information has been provided to the Court, it appears that the sole reason for those adjournments was the delay of the Administration in adducing their views on the additional grounds for annulment lodged by the applicant on 3 February 2010. The Court takes note of the Government’s argument that the applicant contributed significantly to the delays because she submitted additional grounds for annulment. It recalls however that it has consistently held that applicants cannot be blamed for making full use of the remedies available to them under domestic law (see Golha v. the Czech Republic, no. 7051/06, § 59, 26 May 2011). On the contrary, it is for the Contracting States to organise their judicial systems in such a way that their courts are able to guarantee the right of everyone to obtain a final decision on disputes concerning civil rights and obligations within a reasonable time (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000‑IV, and Vassilios Athanasiou and Others, cited above, § 26).

46. 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 (see, among other authorities, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, and N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002‑X).

47. 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 (see, mutatis mutandis, Anagnostopoulos v. Greece, no. 54589/00, § 32, 3 April 2003, and Lacerda Gouveia and Others v. Portugal, no. 11868/07, § 73, 1 March 2011). 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 (see N.T. Giannousis and Kliafas Brothers S.A. v. Greece, no. 2898/03, § 28, 14 December 2006).

48. 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 (see Vassilios Athanasiou and Others, cited above, § 52). The applicant was thus deprived of her right of access to a court (see, mutatis mutandis, Anagnostopoulos, cited above, § 32; Rokas v. Greece, no. 55081/09, § 23, 22 September 2015; Korkolis v. Greece, no. 63300/09, § 22, 15 January 2015).

49. 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 (see paragraph 14 above). However, no such legal provision existed at the material time.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

52. The applicant claimed 30,000 euros (EUR) in respect of nonpecuniary damage, arguing that the said amount would constitute fair compensation in view of the domestic authorities’ conduct which had had significant impact on her career and professional future and of the salaries she would have gained if she had continued occupying the post.

53. The Government argued that the finding of a violation should be sufficient compensation for the non-pecuniary damage of the applicant, especially given the financial situation of the country. In any event, the amount requested was excessive and unjustified in view of the circumstances of the case.

54. Making its assessment on an equitable basis and having regard to the nature of the violation found, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

55. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and EUR 3,355.44 for those incurred before the Court. She asked for these sums to be paid directly into the bank account indicated by her representative.

56. The Government contested the above amounts. As regards the costs and expenses before the domestic courts, the Government argued that there was no causal link between the violation of the applicant’s right of access to a court and the expenses she incurred before the domestic courts. In respect of the costs and expenses claimed for the proceedings before the Court, the Government claimed that they were excessive and unjustified and that the applicant had failed to adduce a legal invoice but had solely provided the Court with a catalogue of her lawyer’s charges. In their view, no amount should be awarded to the applicant for costs and expenses, but if the Court wished to award such amount, it should not exceed EUR 500.

57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,480 for costs and expenses in the domestic proceedings and EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. These sums are to be paid to a bank account indicated by the applicant’s’ representative.

C. Default interest

58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,480 (two thousand four hundred eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be deposited directly to a bank account indicated by her representative;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposKsenija Turkovic
RegistrarPresident

 

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