ΕΛΛΗΝΙΚΗ ΠΑΡΕΜΒΑΣΗ ΣΤΗ ΓΕΝΙΚΗ ΣΥΝΕΛΕΥΣΗ ΤΗΣ ΕΥΡΩΠΑΪΚΗΣ ΕΝΩΣΗΣ ΔΙΟΙΚΗΤΙΚΩΝ ΔΙΚΑΣΤΩΝ
Σας παραθέτουμε το κείμενο της παρεμβάσεως της ελληνικής αντιπροσωπείας κατά τη γενική συνέλευση (24ης-5-2013) της Ευρωπαϊκής Ένωσης Διοικητικών Δικαστών (AEAJ), το οποίο επιμελήθηκε ο Επαμεινώνδας Τρουλινός, με τη συνεργασία της Μαρίας Παπαδοπούλου, Πρωτοδικών στο Διοικητικό Πρωτοδικείο Κοζάνης.
Report concerning the situation of Administrative Justice in Greece presented by Epameinondas Troulinos, Administrative Judge, on behalf of the Association of Administrative Judges of Greece
The current ‘Crisis’ is stressing the national budget and the parliament enacts laws that have a direct impact on the rights of each citizen. Due to the fact that cases are not heard by the courts within a reasonable time numerous legal provisions have been put into effect in order to resolve this problem. However, one could argue that with the pretext of accelerating the judicial process certain of the adopted provisions interfere with the independence of the judiciary, especially as regards the judicial review of tax cases. It could also be argued that the overriding principle is the need of the State to collect money from pending tax disputes long before the court judgment is issued, instead of the respect of the fundamental right to a fair trial. Some examples:
1.In all administrative cases the deposit fee that every applicant must pay in order to file an appeal before administrative courts (and which he will receive back if the court rules in his favor) has been risen retroactively from 5€ and 25€ to 100€.
2.As regards the tax cases: a) the deposit fee due for filing an appeal depends on the amount of tax at dispute and is calculated at 2% of the said amount and may not exceed 10.000 €, b) the time-limit to file a tax appeal has been reduced from 60 to 30 days, c) if the tax due is above 150.000 € the case is heard only by the Court of Appeals and the losing party can only file an appeal on points of law, c) amendments of the settlement procedure of tax law disputes before the competent administrative Committees (without the participation of judges) have ultimately rendered such applications obligatory in the sense that a tax appeal shall be overruled as inadmissible if the said procedure is not followed; the catch is that in order to file such a ‘settlement petition’ the applicant should firstly pay 50% of the tax due and d) judges are no longer vested with the power to review “ex officio” any legal defects of tax administration acts (such as incompetence, substantial procedural defects i.e. right to a personal hearing before the issuance of the act) except for the observance of “res judicata”; in any case, the annulment of a tax administration act may not be ordered simply by attesting a substantial procedural defect, since the plaintiff has to prove to the Court that the said defect has caused him damage that could be recovered only by annulling the contested act.
3.Preliminary injunctions concerning pecuniary cases (whereby the applicant has to pay any amount of money to any public body) are really hard to get, since the applicant has to prove either that the administrative act is manifestly illegal (i.e. contrary to the jurisprudence of the Council of State - rarely this happens), or that he will suffer irreparable injury from very specifically described execution measures
4.A pilot judgment procedure similar to the one developed before the ECHR (‘prelimininary ruling procedure’) has been established, whereby any of the parties can file an application before the Council of the State to review any case that is of general interest pending before any court The scope is to have a quick final judgment in repetitive cases concerning the same underlying legal matter. All administrative courts are obliged to follow the pilot judgment. So there is a discussion currently that the courts are encouraged to produce automated judgments.
5.Since 2012, any modification to a court’s ‘internal regulation’ shall first be scrutinized from the Grand Chamber of the Council of State. The Council of State with decision 10/2012 (Grand Chamber) has given the opinion that it cannot substitute the decision of the Grand Chamber of each court. However, it added that in examining the modifications of an ‘internal regulation’ it can also scrutinize all the articles of the ‘internal regulation’ and give its observations about other articles of the ‘internal regulations’. The Council of State also observed that the judicial process is not completed within reasonable time and it concluded that the ‘internal regulations’ should not contain any provisions that have a (direct or indirect) result of further limiting the number of cases that each judge hears. Finally, the Council of State did not approve certain provisions of the ‘internal regulations’ that it scrutinized based on the fact that they limited the number of cases that each judge will hear. However, the Council of State did not go so far as to alter by itself the relevant provisions, but referred the matter to the Grand Chamber of each court. Already, the Grand Chamber of the Administrative Court of Appeal of Athens has not accepted the above mentioned opinion of the Council of State and it has not altered its ‘internal regulation’. It is an open question how the Council of State will react.
6.On top of that court dockets appear to be even more crowded with tax cases [even though there are no Special Tax Sections Administrative Courts with the exception of the Courts in Athens and Thessaloniki], whereas at the same time judges are obliged to deliver their judgments within even stricter deadlines with the sanction of disciplinary measures and withdrawal of the case. However, no steps have been taken in order to tackle with the real problems of the judicial process such as the lack of computerized system, the inadequate administrations internal review and other infrastructural shortfalls. For example, due to the lack of court clerks, judges have to manage the issue process of their judgments at every stage until they are served to the parties. Finally, judges are burdened at the same time with many other administrative duties, such as to preside over Disciplinary Committees for Civil Servants.
It is worth mentioning that taken separately these measures do not seem to infringe the independence of judiciary or limit access to the courts, however taken together they raise serious questions.