F.G. v. GREECE
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Pauliine Koskelo
1. The applicant, Mr F.G., is a Greek national who was born in 1946 and lives in Athens. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Ms S. Asimakopoulou, a lawyer practising in Athens. 2. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor at the State Legal Council. 3. Mr L.-A. Sicilianos, the judge elected in respect of Greece, withdrew from sitting in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr Michail Margaritis to sit in his place (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court). 4. On 3 December 2013 the application was communicated to the Government. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. At the time the events took place the applicant was a legal counsellor at the State Legal Council (Νομικό Συμβούλιο του Κράτους). 7. On September 2008, there were three vacant posts at the rank of vice-president of the State Legal Council. The first step of the selection procedure consisted of a proposal by the Minister of Economics and Finance, which included a list of all eligible legal counsellors ranked on the basis of seniority. Among the thirty-six legal counsellors who fulfilled the formal criteria, the applicant was ranked sixth. 8. At its meeting of 8 September 2008, the Cabinet of Ministers (“the Cabinet”), following the proposal by the Minister of Economics and Finance, unanimously decided to appoint as vice-presidents to the State Legal Council Mr N.M., Mr D.A. and Mr N.K, who were second, eighth and fourteenth respectively on the list. The reasoning of the decision stated that they “[had] proved superior to the rest of their colleagues under consideration for the posts, as [was] clear from the relevant proposal of the competent Minister, which [had been] accepted by the Cabinet following assessment of each of the eligible legal counsellor’s files and the ministers’ discussion ...” 9. The proposal of the Minister of Economics and Finance included the qualifications of the eligible staff members, in particular the year of their appointment, their ranking and salary changes, their assignments and disciplinary proceedings and it concluded that: “... having assessed all of the above-mentioned facts relating to the service of the persons under consideration, as well as other details of their personal service files and ... their general academic training, their moral character, their diligence and their administrative qualifications; having also taken into account the generally formulated opinion for each one and their seniority ranking, I PROPOSE that the following be chosen and promoted to fulfil the three (3) vacant posts of vice-president of the State Legal Council ... [the names of the three accepted candidates followed, handwritten]”. 10. From the minutes of the Cabinet meeting it appears that its duration was forty-five minutes and included other items on the agenda as well. 11. On 10 September 2008, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette. 12. On July 2009, the same procedure was followed for filling another two vacant posts to the rank of vice-president of the State Legal Council. Thirty-one legal counsellors were eligible for promotion, including the applicant, who was ranked fourth on the list on the basis of seniority. 13. At its meeting of 1 July 2009, the Cabinet, following the proposal by the Minister of Economics and Finance, unanimously decided to appoint to the vacant posts Mr B.K. and Mr I.S., who were sixth and tenth respectively on the list. The reasoning of the decision, as well as the Minister’s proposal, were identical to the 2008 procedure. 14. The duration of the Cabinet meeting was one hour and forty minutes and the agenda included other items as well. 15. On 2 July 2009, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette. 16. On 14 November 2008, the applicant lodged an application for annulment (αίτηση ακύρωσης) of the Presidential Decree dated 10 September 2008 with the Supreme Administrative Court (Συμβούλιο της Επικρατείας), on the grounds of lack of sufficient reasoning in the contested decision and of his having been manifestly superior to two of the three promoted legal counsellors, who had been ranked lower than him on the list and yet had been promoted. 17. On 13 April 2009, the applicant was informally informed that the State Legal Council had applied to have the case examined by the Plenary of the Supreme Administrative Court and that the President had agreed to grant that request. On the same date, the applicant filed a written submission contesting that decision, relying, on one hand, on the fact that his views on the subject had not been heard prior to the decision and, on the other hand, on the fact that such a referral would result in further delay in the examination of his case. In particular, the applicant maintained that he had only a few years left before he reached compulsory-retirement age and the delay in the examination of his case would further diminish his chances of serving as vice-president of the State Legal Council. From the material in the Court’s possession, it appears that the applicant did not receive a reply to his submission. By a decision of the President of the Supreme Administrative Court dated 21 April 2009, the case was referred to the Plenary of that court. 18. The date of hearing before the Plenary of the Supreme Administrative Court was scheduled for 25 September 2009. The Court adjourned the hearing until 5 February 2010. On that date, the case was again adjourned on the grounds that there were three pending applications raising similar issues to the case under consideration and it would be better to examine the cases together. The hearing eventually took place on 7 May 2010. 19. By its judgment no. 1973/2011, published on 20 June 2011 and finalised on 25 August 2011 (δημοσίευση και καθαρογραφή), the Supreme Administrative Court dismissed the application for annulment of the Presidential Decree dated 10 September 2008. In its reasoning the court first pointed out that the application for annulment was admissible, as Article 90 § 6 of the Greek Constitution, which excluded the possibility of applications for annulment of decisions relating to promotions of judges, could not be applied by analogy. It then observed that owing to the State Legal Council’s special institutional role and the nature of the role of its President and vice-presidents, the Cabinet, when choosing the candidates who, in their view, had more substantive qualifications for those posts, enjoyed a wide degree of discretion, without being obliged to provide specific justification for their decisions, except for cases where an omitted candidate had been manifestly superior to the promoted candidates. It then noted that according to the minutes the Cabinet had chosen the candidates to be promoted by taking into account not only the competent Minister’s proposal but also other details from the candidates’ files and following discussion among its members. Lastly, it pointed out that from the material in their possession, the applicant had not been manifestly superior to the promoted candidates. 20. On 22 October 2009, the applicant lodged an application for annulment of the Presidential Decree dated 1 July 2009 with the Supreme Administrative Court, on the grounds of lack of sufficient reasoning in the contested decision and because he had been manifestly superior to the two promoted legal counsellors who had been ranked lower than him on the list. 21. By a decision of the President of the Supreme Administrative Court dated 1 March 2010, the case was referred to the Plenary of that court. The hearing was scheduled for 7 May 2010. 22. By its judgment no. 413/2011, published on 4 February 2011 and finalised on 4 March 2011, the Supreme Administrative Court dismissed the application for annulment on the same grounds as those stated in judgment no. 1973/2011 (see paragraph 18 above). 23. On 13 July 2010, the applicant, following a procedure similar to the one described in paragraphs 6-15 above, was appointed President of the State Legal Council. 24. The relevant Articles of the Greek Constitution read as follows: “2. The remuneration of judicial functionaries shall be commensurate with their office. Matters concerning their rank, remuneration and their general status shall be regulated by special statute ...” “5. Retirement from the State legal service shall be compulsory upon attainment of the age of sixty-five years for all judges and prosecutors up to and including the rank of judge of a court of appeal or deputy prosecutor of a court of appeal, or a rank corresponding thereto. In the case of judges and prosecutors of a rank higher than the one stated, or of a corresponding rank, retirement shall be compulsory upon attainment of the age of sixty-seven years. In the application of this provision, 30 June of the year of retirement shall in all cases be taken as the date of attainment of the above age limit.” “5. Promotions to the posts of President or vice-president of the State Legal Council, of the Court of Cassation and of the Court of Auditors, shall be effected by Presidential Decree issued on the proposal of the Cabinet, upon selection from among the members of the respective Supreme Court, as specified by law ... The mandate of the President of the Council of State, of the Court of Cassation and of the Court of Auditors ... may not exceed four years, even if the judge or prosecutor holding this office has not reached the retirement age.” “Matters relating to the establishment and functioning of the State Legal Council, as well as matters relating to the service status of functionaries and staff members who serve therein, shall be specified by law. The competence of the State Legal Council pertains mainly to the judicial support and representation of the State and to the recognition of claims against it or to the settlements of disputes with the State. The provisions of Articles 88 paragraphs 2 and 5, as well as of Article 90 paragraph 5 shall apply accordingly to the main staff of the State Legal Council.” 25. The relevant sections of Law 3086/2002 (Organisation of the State Legal Council) and the status of its officers and employees, published in Official Journal A/324, read as follows: “The State Legal Council is responsible for judicially supporting the State ...” “1. The ranks of hierarchy of the State Legal Council’s members are the following: President, vice-president, legal counsellor, senior advisor, legal representative A, legal representative and associate legal assistant (Πρόεδρος, Αντιπρόεδρος, Νομικός Σύμβουλος, Πάρεδρος, Δικαστικός Αντιπρόσωπος Α΄. Δικαστικός Αντιπρόσωπος και δόκιμος Δικαστικός Αντιπρόσωπος). 2. Among members at the same rank, seniority is precedent, in accordance with the provisions of paragraph 1 of the preceding article ...” “2. Promotions a) For the promotion of a member of the State Legal Council to a higher rank the following are required: i) Vacancy in the higher rank, if places are structurally distinct, ii) Completion of the statutory time in the rank currently occupied ... iii) Possession of the necessary qualifications for the higher rank. b) Promotion of members of the State Legal Council to the ranks of judicial representative A and senior advisor takes place by election among those who possess the necessary formal requirements and qualifications: i) character and courage, ii) academic training, iii) judgment, perception and skills in understanding cases, iv) skills in formulating proposals and pleas, v) diligence, hard work and service performance, vi) decent behaviour in general and in particular in courts and in their relations with other services and authorities, vii) decent social behaviour, to an absolutely satisfying degree, so as to fully respond to the duties of the higher rank c) Promotion of members of the State Legal Council to the rank of legal counsellor takes place following a “free vote” (κατ’ απόλυτη εκλογή). Deemed as eligible for promotion by free vote among those who possess the formal requirements are the members who possess the following to an excellent degree: i) character and courage, ii) academic training, iii) diligence, hard work and service efficiency, and following a comparison, those who are promoted to fill the vacant posts are elected. ... e) Promotion to the posts of President and vice-president is effected by Presidential Decree following a proposal by the Cabinet, which, upon the recommendation of the Minister of Economy and Finance, selects the ones who must be promoted among those who fulfil the legal requirements. ... i) The post of vice-president of the State Legal Council is occupied by a legal counsellor who has been promoted following three years of service in the rank of legal counsellor. j) The post of President of the State Legal Council is occupied by a vice-president or a legal counsellor who has been promoted following four years of service in the rank of legal counsellor.” “The members of the State Legal Council automatically retire from service: ... b) the legal counsellors, who correspond to judges of the Court of Cassation, the vice-presidents, who correspond to vice-presidents of the Court of Cassation, and the President of the State Legal Council, who corresponds to the President of the Court of Cassation, [at the end of their] sixty-seventh year. ... d) For the implementation of provisions a) and b) of the present paragraph, the day of retirement age is reached is considered to be 30 June of the year the member of the State Legal Council retires.” 26. The relevant section of Presidential Decree 18/1989, which codifies the laws relating to the Supreme Administrative Court, reads as follows: “Legitimate interest. 1. An application for annulment against an administrative act can be lodged by any individual or legal person who is concerned by the act, or whose legitimate interests, even if non-pecuniary in nature, are infringed upon.” “An application for annulment can be lodged for the following reasons: 1) Incompetence on the part of the administrative authority which issued the act; 2) Infringement of an essential procedural requirement which had been set for the act; 3) Infringement of an essential provision of law; 4) Abuse of authority, when the administrative act per se bears all the elements of legality, but has been manifestly issued for other purposes than those for which it was enacted.” 27. According to the case-law of the Supreme Administrative Court, when domestic law affords to civil servants the right to be considered eligible for promotion, this constitutes a sufficient legitimate interest enabling them to lodge an application for annulment for one of the reasons cited in Section 48 of Presidential Decree 18/1989 (see, for example, decision no. 2809/2012 of the Supreme Administrative Court).