1) Regularization Of Foreign National – Objections Of Detention – Procedures Of National Visa Issue – Removal From The National Register Of Undesirable Aliens – Application Of Annulment – Application Of Suspension- Three-Judge Administrative Court Of First Instance Of Thessaloniki
Based on the rule registered under the number 378560 11-g issued on 06th February 2014 by the Duty Officer of Thessaloniki Foreigners’ Police Station the return of an Albanian foreign citizen has been ordered who has been arrested for return on 03.02.2014 because he has entered in Greece in 2002 through an uncontrolled Greek-Albanian border crossing without the legal requirements (or legal formalities) and not undergoing the necessary police control and since then he was living in the country irregularly.
Τhe above-mentioned decision, ordered: 1. the alien’s return to his country 2. the continuation of its detention till the conclusion of the administrative procedure of expulsion because there is a risk of absconding due to his lack of accommodation and the required means of subsistence 3. his registration in the national register of undesirable aliens and the Schengen Area information system till 06th February 2019.
Against the aforesaid decision, in relation to the pre-trial detention, an objection has been submitted before the President of the Administrative Court of First Instance of Thessaloniki. That gave rise to the 74/2014 judgment of the 14th Department of Administrative Court of First Instance of Thessaloniki (ΙΔ' Τμήματος του Διοικητικού Πρωτοδικείου Θεσσαλονίκης) which accepted the objection and ordered his detention and grant him 30-day notice to leave the country.
In relation to his deportation to his country and his registration in the national register of undesirable foreigners both an application of annulment and suspension has been filed accompanied by a request of interlocutory injunction (or provisional order). The latter gave rise to the 93/2014 provisional order of the President of 2nd Department of Administrative Court of First Instance of Thessaloniki issued on 17th April 2014 which ruled the suspension of operation of his registration in the national register of undesirable foreigners.
This suspension confirmed by the decision 378560/2 of the Director of Thessaloniki Foreigners’ Police Station, which ruled in favor of the removal request from the Schengen Area information system stating that “the fact that public interests reasons require the enrolment to the national register of undesirable aliens, however these interests weakening on equitable grounds and in view of the principles of sound administration and proportionality because this foreigner holds a certificate of evidence for his Special Identity Card For Aliens Of Greek Descent (Ε.Δ.Τ.Ο. - Ειδικό Δελτίο Ταυτότητας Ομογενούς) application, as a husband of a homogenous. The damage to be caused to the applicant from the maintenance of his enrolment to this list is especially harmful and disproportionately larger than the expected benefits.
The principle of good administration forgives and gives chances to a social rehabilitation and the Greek legal order has the strength and the provision for possible future repeated infringement.
Concerning the application of annulment, the three-judge Administrative Court of First Instance of Thessaloniki under the 1467/2015 judgment of its 2nd Department ruled:
because of these facts, since after the submission of this application the applicant obtained a visa, entered the country and applied for a uniform format for residence permit. The this submission he has been provided by a certificate from East Thessaloniki Foreigners Department valid till 16th April 2015. The latter, at the time of the case’s discussion before the court is still valid and considered an evidence of a right of legal residence in Greece even provisional one. Hence, the appealed return decision is no longer in effect.
Therefore, the court holds that there is no need to adjudicate and orders the return of the court fee to the applicant.
Our law office succeed the regularization of this foreigner by carrying out all the necessary legalisation procedures before the Greek Administrative Authorities and the competent Administrative Courts.
2) Compulsory Resignation Of Senior Public Servant Because Of Final Criminal Conviction – Judicial Assembly Of Council Of State – Pending Claim Before The European Court Of Human Rights
By decision of the General Secretary of Decentralized Administration of Macedonia and Thrace dated on 21st December 2016 the removal from post of a senior public servant has been ordered and notified to the appellant on 22nd December 2016. Then, an application of annulment before the Administrative Court of Appeal has been filed, registered with the reference number ΑΚ 9/03-01-2017. The latter appealed the decision under the number 707/21.12.2016 of the General Secretary of Decentralized Administration of Macedonia and Thrace. Also, the application for suspension with the reference number AN2/03-01-2017 has been filed accompanied by a request of interlocutory injunction (or provisional order).
On the judgment of the above request of interlocutory injunction, the relevant department of the Administrative Court of Appeal ordered the suspension of operation of the decision under the number 707/21.12.2016 of the General Secretary of Decentralized Administration of Macedonia and Thrace till the final judgment of the application of annulment by the Council of State.
Following this decision, the Region of Central Macedonia submitted a request of its cancellation but was denied confirming the granted provisional order.
In the meanwhile, on 27/01/2017 a judgment of the 2nd Department of the Administrative Court of Appeal - Annulment Procedure has been pronounced “declaring that does not have jurisdiction and refers […] the application of annulment and its associated application of suspension of the operation to the Council of State - Department C” maintaing the force of the granted provisional order. The latter notified to the General Secretary of Decentralized Administration of Macedonia and Thrace and the case was internally sent from the Secretary of the Administrative Court of Appeal of Thessaloniki before the Council of State - Department C.
The President of Council of State introduced this application to the Judicial Assembly of Council of State pursuant Article 14 (2a), 20 and 21 of Presidential Decree No 18/1989 and Article 34 l. 3772/2009 due to its importance, setting the trial date on 02nd June 2017.
It is of increased importance the fact that before the case-file send before the Council of State and after the grant of the above mentioned provisional order by the relevant Department of the Administrative Court of Appeal of Thessaloniki, the public administration refused to comply with the operative part of the granted provisional order. In the light of the foregoing an extra-judicial notice was sent on 09th February 2017 to the issuing administrative authority, to take all necessary steps as defined in the provisional order of the B’ Department of Annulment Procedure of the Administrative Court of Appeal of Thessaloniki, which was lawfully and timely notified.
On the aforesaid call for compliance to the issued provisional order, the Region of Central Macedonia and Thrace did nothing. Specifically, based on the document registered with the reference number 7653/07-02-2017 issued by the deputy General Secretary of Decentralized Administration of Macedonia and Thrace, the public administration rely on document under the number 230-181/3-2-2016 issued by the Head of Legal Counsellors Division of the Ministry of Education, Research and Religious Affairs. According to this paper, Decentralized Administration of Macedonia and Thrace misinterpreted the provisional order of the B’ Department of the Administrative Court of Appeal of Thessaloniki leading to the cavalier and unrealistic conclusion that “the application of annulment and the application of suspension of… against that decision, are pending before the Council of State under the number E276 and designation date 02/02/2017 for the application of annulment and EA14 for the application of suspension. Hence, since these two cases have brought before the Court which has exclusive jurisdiction to proceed to judgment, the provisional order of the B’ Department of the Administrative Court of Appeal of Thessaloniki has no longer any legal effect.
The refusal of the public administration to conform to the above-mentioned provisional order, on 24th February 2017 we submit the AD4/24-02-2017 application before the B’ Department of Annulment Procedure of the Administrative Court of Appeal of Thessaloniki for “the interpretation of the 27/01/2017 granted provisional order of the President of the Administrative Court of Appeal of Thessaloniki” in accordance to Article 109 of the Code of Administrative Procedure. For this application judgment number 137/2017 was issued by the President of B’ Department of Annulment Procedure of the Administrative Court of Appeal of Thessaloniki stating that “According to the provisional order dated from 26-01-2014 the application of the 707/21-12-2016 decision of the General Secretary of Decentralized Administration of Macedonia and Thrace is suspended till the relevant Court (which is the Council of State) render its final judgment of the application of suspension.” It ends up: “the President accepts the application and rules about the duration of the granted suspension of application based on decision number 707/21.12.2016 of the General Secretary of Decentralized Administration of Macedonia and Thrace, that is extended till the final judgment of the relevant Court (Council of State). The above judgment notified to the administrative authority in question.
The Judicial Assembly of the Council of State with the judgment No 869/2018 dismissed the application for annulment considering that from the provisions of 24th December 1990 Decree Law named “About Muslim religious ministers” which ratified by Law 1920/1991, in conjunction with the provisions of Article 8(1)(a) of the present Code on the status of civil servants and of employees of legal persons governed by public law (Law 3528/2007), Mufti or Mufti Supervisor is ceased from their duties in case of final conviction for one of the referred offences, which constitute an impediment to appointment to these kind of posts – From the same provisions becomes apparent that the legislator does not allow the exercise or Mufti or Mufti Supervisor duties from persons who considers, that because of their final conviction for specific criminal offences, do not have the required weight and moral standing and they cannot inspire trust for the exercise of their specified duties, including, apart from the religious ones, their judicial role on same family and inheritance law cases of the Greek Muslims of their region – Therefore, this regulation aims to smooth functioning of Muftia public services, with the practicing of these duties from persons who have the right ethical standards, linked directly to the scope and the nature of the relevant public functions. Hence, this regulation, is not manifestly inappropriate or not necessary for the accomplishment of the afore-said purpose of public interest neither outweighs it, lies within the legislator’s discretion and does not violates proportionality principle (Article 25(1.4) of the Constitution) or any other constitutional provision or principle (B) Based on the fact that article 8(1)(a) of the Code on the status of civil servants and of employees of legal persons governed by public law (Law 3528/2007), refers some criminal offences without specifying the articles of penal code or other criminal laws, as fraud considered the one affecting the European Community's financial interests according to Article 4 of law 2803/2000, since Article 8 of the Code does not distinguish and there is not any reason to differentiate from the above-mentioned public interest purpose – Also, the foreseen cease of Mufti or Mufti Supervisor because of an irrevocable conviction based on one of the offences stated on Article 8(1)(a) of the Code on the status of civil servants and of employees of legal persons governed by public law (including fraud) is not limited to the perpetrator, but includes the participant as well, regardless of its form of participation, because the relevant provision does not distinguish and includes the principal offence and the referred forms of participation stated on the penal code and because the participant is convicted for the same offence. The administrative provision orders the removal for office in case of conviction for these offences indistinguishably of the punishment, that said, even on reduced sentence – Furthermore, the necessity of protection of the afore-said public interest is present even in case of conviction for mere collusion in one the specified offences whose the legislator considers severe and inappropriate to the nature of Mufti ore Mufti Supervisor, since the worthlessness of these offences, which justify the cease, is not reduced in case of accomplice who provides deliberate assistance to the perpetrator of an unlawful act and this act is dangerous for a specific legal interest – In addition based that on the above provision of Article 2 of 24th December 1990 Decree Law the sole condition is the irrevocable conviction for one of the specified criminal offences, without any distinction, Mufti or Mufti Supervisor ceased not only in the case of a committed crime but also in case of an attempt to perpetrate it according to Article 42 of the Penal Code taking into consideration that the said worthlessness of some crimes is obvious also for the attempt which includes the elements of the willful misconduct and the start of committing a crime, since the non-completion of its constituent elements might be due to facts totally irrelevant to the will of the perpetrator and the necessity of the public interest protection is also present in the case of an attempt to commit these crimes. (CoS 3361/2010) – Finally, according to the specific and explicit provisions of administrative nature of 24th December 1990 Decree Law ( and of the provisions of Code on the status of civil servants and of employees of legal persons governed by public law) for the cease in question the suspension of enforcement of the sentence decided by the criminal court based on the Penal Code provisions or the successful or not probation does not have any affect.
Against the above judgment an application has been brought before the European Court of Human Rights on the grounds of:
A. INFRINGEMENT OF ARTICLE 6 (3) of the European Convention on Human Rights
The right to prior hearing is enshrined both in Article 20 (2) of Constitution and Article 6 (3) of the European Convention on Human Rights and impose prior hearing as essential procedural requirement of the administrative practice. At the same time is considered an individual right and a fundamental rule of the administrative procedure.
The European Court of Human Rights faced similar matters, like in the case where it judged as insufficient the checking by the Austrian Administrative Court of an administrative act concerning a worker made redundant, where the court confine itself on the investigation “if the administrative authorities use their discretion in accordance to the national law purpose” (Obermeier, 179/190), without considering the necessity of taking action. Nevertheless, it is easy for someone to find out that by acting like that, the right of judicial protection guaranteed by Article 6 ECHR is meaningless. Likewise, the European Court carried out a negative demarcation of the judicial control with full jurisdiction in the case Albert et Compte, where it judged as insufficient the control of the Belgian High Court on its disciplinary decisions to the extent that this appellate review is limited to the control of the proper implementation of that law. As a result, the judicial control that excludes any assessment of the facts cannot be considered that covers the procedural requirements of Article 6 ECHR. The opinion that the criterion has to be the nature of the performed Administrative activity is of prime importance. Hence, in case of administrative circumscribed powers for a decision-making of an administrative measure is considered that the relevant judicial authority has to have the power to replace this measure with its judgment which will be based on an evaluation of the facts and the legal details.
Accordingly, the Judicial Assembly of the Council of State was limited to the adoption of the contested administrative measure by circumscribed powers as a statement of fact, without evaluating the facts and the legal matters of this specific case. Nevertheless, this modest and insufficient control made by the Council of State does not cover the procedural requirements of Article 6 ECHR, because on the one hand the right to be heard before the adoption of an unfavorable individual administrative measure is being circumvented and on the other hand the following phase after the administrative procedure is not carried out by a judicial body of unlimited jurisdiction but by a judicial body limited to a verification control.
B. INFRINGEMENT OF ARTICLE 14 AND ARTICLE 7 of the European Convention on Human Rights
According to Article 14 of the European Convention on Human Rights: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The principle of equality established by Article 4(1) of Constitution is a legal norm, that imposes the uniform handling of persons who face the same or similar conditions and rules out the obvious unequal treatment, either by the enactment of a pure gratuitous measures or advantages not linked with evaluation criteria or the uniform treatment of people who are under different conditions based on typical and symptomatic criteria. European legislation and more specific Article 14 ECHR subordinately linked to Article 4(1) of Greek Constitution, aims to the safeguarding of equal and fair opportunities for access to society and in particular to the workplace. Its double role is to foresees that the individuals who face the same conditions have to enjoy the same treatment and also to ensures that they will not face a less favorable treatment because of special “protected” feature that might have. These are direct discrimination that are subject to a general objective evaluation criterion. Specifically, ECHR has judged that different treatment of people being under relatedly similar conditions might be considered a discrimination if lacks an objective and reasonable ground (or explanation), in other words if it does not intend to pursue a legitimate aim or if there is no relation of proportionality between the means and the pursued purpose. Anti-discrimination legislation sets that persons facing different situation have to be treated differently insofar as they are able to take advantage of specific opportunities on an equal basis with other persons. Therefore, when specific practices are applied the exact same protected characteristics should be applied too. These are indirect discrimination which are subject to an objective assessment criterion.
The relative case, that concern the impediment of a person to take a public office because of his previous conviction for a criminal offence (Thlimmenos v. Greece, 34369/2000) the European Court of Human Rights judged that: “The right not to be discriminated in the enjoyment of the rights guaranteed under the Convention is violated not only when States treat differently persons in analogous situations without providing an objective and reasonable justification but is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
In conclusion, the provision that the conviction of someone for some criminal offences shall be an impediment for employment in the civil service or a case for his automatic withdrawal from that post, consists a restriction to the constitutional right of entering to the public job positions and the maintaining these positions respectively and as a result this kind of provisions setting these restriction should be interpreted narrowly. The provision that the irrevocable conviction for some specific crimes shall be an impediment for employment in the civil service or a case for his automatic withdrawal from that post is not permitted to extent interpretative this impediment of cease from that public job in case of an irrevocable conviction for another crime even if it is quite similar to the one stated in the law.
3) Imposition Of Fines To A General Partnership For Fictitious Taxation Documents – Single-Judge Administrative Court Of First Instance
On 18/10/2013 the relevant Taxation Authority issued an audit report charging to our clients, members of a general partnership on construction business, the acceptance of two fictitious taxation documents concerning a transaction of a total net value EUR 75.000 for the financial year 2009. Based on the afore-said audit report of the relevant taxation authority, the fictitious invoices are apparent from the fact that the counterparty company which was the issuing party of the invoices did not possess the machines for the fulfilment of the project, did not had any leasing contract for machinery or vehicles and lastly because the issuing company although had not any provider issued at the same time invoices of total net value 165000 euro.
Based on these findings the relevant taxation authority followed the foreseen procedural steps issuing VAT assessments, a formal act imposing a fine and a decision to impose a fine from the relevant Tax Office of total EUR 224.700. Against the above acts of fine imposition, the Georgios Paraskeuas law office exercise the right of appeal in behalf of its clients in order to protect their interests. As a result, the foreseen administrative applications before the Administrative Court of First Instance have been submitted and the tax collection of 50% of the total fine (EUR 112.350) has been suspended.
Subsequently, the relevant taxation authority issued a tax bill for the rest of the fine (EUR 112.350). The huge amount of sums of the tax bills and the subsequent inability of our clients to pay the sum combined with the direct threat of enforced collection procedures and seizure of moveable assets and real property against our clients we submitted an application for suspension of operation before the Administrative Court of First Instance according to Articles 200-202 Administrative Procedure Code. The above provisions set that in cases where the time limit for exercising the remedy or the remedy itself do not follow the immediate suspension of application of the contested decision and the fines imposed, allow the applicant to submit an application and the Court can fully or partly suspend the application with its reasoned decision.
In this particular case, concerning the application of suspension for the time period till the hearing and the decision, a provisional order has been issued ordering the suspension of the application to the extent that the adoption of implementing measures affect the applicants’ primary residences and vehicles.
Next, the Administrative Court of First Instance issued a final decision on the application of suspension, accepting the lawyer’s request: “the Court assessing the data of the current case, especially the marital status, the property, the profession, the income and the current financial obligations of the general partners, judges that the damage caused to the company and its general partners in case of adoption of some the referred measures stated on Article 202 (2), would be irreparable. In this light the Court balancing this damage from the side of public interest judges that application of suspension in question should be accepted to the extent of implementing measures against the applicants’ primary residences and vehicles till the trial of the submitted appeals before the competent Administrative Court.
Our law office succeed both in the provisional measures hearing and the trial of the application of suspension. We achieved the suspension of application for the collection of the amounts to the extent of adoption of implementing measures affecting the applicants’ primary residences and vehicles. At the same time the business bank accounts secured its immunity to seizure till the amount of EUR 1.500 per month.
4) Annulment Of Rejection Decision For A Transfer Request - Administrative Court Of Appeal Of Athens
Application of annulment of the implied negative decision on 3154/05/30/2015 request of the applicant employee of the General Hospital of Athens Laiko which is a legal entity governed by public law. The applicant was working on the field of the supporting medical staff and his request was for a transfer to the administrative assistant’s field and the denial of his request become apparent with 10th - 14th May 2015 negative opinion of Central Service Council of the 1st Health Region of Attica.
Decision under number 1259/2019 of the Administrative Court of Appeal of Athens, Z’ Department of Annulment Formation judged that the annulment of the implied negative decision on 3154/05/30/2015 request of the applicant employee of the General Hospital of Athens Laiko to be transferred from the supporting medical staff field to the administrative assistants field as this decision was made clear with 10th - 14th May 2015 negative opinion of Central Service Council of the 1st Health Region of Attica.
The applicant claims that the reasoning of the contested act is inadequate and there are reasonable grounds since the reasoning of the contested act, which derives from the negative opinion of the Service Council, is inadequate because the service council did not examine – according to Article 73 of Law 3528/2007 – the applicant’s suitability for the duties of the field she is requesting to transfer for the needs of the service. Based on that and according to the fact that rest information of the file cannot supplement this inadequate reasoning, the contested act is declared unlawful and must be annulled. The Court accepts the application in question. Cancels the implied rejection of 3154/05/03/2015 applicant’s request to be transferred from the Supporting Medical Staff field of the General Hospital of Athens Laiko to the administrative assistants field. Remits the case back to the Administration to make a new judgment according to the context of this decision.
Orders the repayment of the deposit and condemn the Public to pay the costs related to the court proceedings, EUR 256.
Our law office succeed the annulment of the implied decision rejecting the applicant’s request, registered under number 3154/05/30/2015, who is working on the field of the supporting medical staff of the General Hospital of Athens Laiko to be transferred to the administrative assistants field, as this rejection was made clear on 10th - 14th May 2015 negative opinion of Central Service Council of the 1st Health Region of Attica. The annulment was decided for inadequate reasoning.