Published on 29 January 2024
THIRD SECTION
Application no. 21647/19
Ourania PAPPA - TSIGGOU
against Greece
lodged on 15 April 2019
communicated on 8 January 2024
SUBJECT MATTER OF THE CASE
The applicant lodged an application for annulment before the Ioannina Court of Appeal against continuation of construction works and the revisions of a building permit. Following its dismissal by judgment no. 221/2010, published on 27 October 2010, she lodged an appeal before the Supreme Administrative Court on 24 February 2011 relying on three grounds of appeal. The applicant further argued that the admissibility requirements of Article 12 § 2 of Law no. 3900/2010, which entered into force on 1 January 2011, namely after the publication of the impugned judgment, were not applicable in her case as Article 77 § 5 of the Presidential Decree no. 18/1989 provides that for the assessment of the admissibility of legal remedies, the law in force at the publication of the impugned judgment shall be applicable. In the course of the proceedings the applicant maintained that this rule was reversed for the first time by judgment no. 2177/2011 of the Supreme Administrative Court published on 14 July 2011, which held that the applicable law was the one in force on the date of introduction of the legal remedy. She argued that this change of case-law and the inadmissibility of her appeal which it entailed should not be relied on by the court as she had lodged the appeal in accordance with Article 77 § 5 of the Presidential Decree no. 18/1989.
The Supreme Administrative Court in its judgment no. 2237/2018 of 24 October 2018 rejected the applicant’s argument as regards the applicable law stating that Article 12 § 2 of Law no. 3900/2010 introducing new admissibility requirements, being more recent and specific, prevailed over Article 77 § 5 of the Presidential Decree no. 18/1989. It was thus to be applied to appeals introduced after 1 January 2011 independently of the date of the publication of the impugned judgment, and the applicant could not have reasonably expected that she had not been required to comply with those admissibility requirements.
It further dismissed the three grounds of appeal as not having the content required by Law no. 3900/2010 and being inadmissible.
Subsequently, the court stated that “the admissibility issue raised, and in particular that of the establishment of the admissibility of the grounds adduced, in accordance with Article 12 § 2 of Law no. 3900/2010, had been particularly examined by that court in numerous judgments”, and that the applicant insisted on a legal remedy which had become manifestly inadmissible. It further held that her behaviour had been contradictory as, at the hearing of 14 March 2018 she had declared her wish to withdraw the appeal and the case had been adjourned. However, during the next hearing of 18 April 2018 she unexpectedly insisted that the case be heard on the merits. The court imposed on the applicant a pecuniary sanction of EUR 1,000 pursuant to Articles 116 and 205 of the Code of Civil Procedure.
Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 the applicant complains that: she was not heard as regards the ex officio imposition of a pecuniary sanction for a procedural breach; the exercise or withdrawal of a legal remedy is a party’s right arising from the right to a fair trial and shall not be considered abusive; the adjournment caused was of one month and four days whereas the Supreme Administrative Court had adjourned the case thirteen times and the total length of the trial before it was seven years, eight months and nine days; she did not unreasonably insist on her appeal in view of her grounds of appeal and her arguments relating to the applicable law as regards the admissibility, which were based on relevant case-law which had not been reversed at the time of the introduction of the appeal. Additionally, she complains that, under the circumstances, the pecuniary sanction has a “chilling effect” as regards the exercise of legal remedies.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right of access to a court, guaranteed by Article 6 § 1 of the Convention, on account of the imposition of the fine by the Supreme Administrative Court?
Having regard to the relevant legislation and the case-law of the domestic courts at the time of the exercise of the appeal and the applicant’s relevant arguments including those relating to her right to withdraw the appeal and the adjournments attributed to the court itself, did the pecuniary sanction pursue a legitimate aim and was there a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved considering that it was imposed on the grounds that the appeal had become manifestly inadmissible and that the applicant’s behaviour was contradictory (see also Sace Elektrik Ticaret ve Sanayi A.Ş. v. Turkey, no. 20577/05, 22 October 2013)?
2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, has that interference been in compliance with the requirements of Article 1 of Protocol No. 1?