GENERAL QUESTIONS :
1. To some extent
2. Not at all
That is , if for instance, we have a case of import taxesand the Greek
legislation does not comply to the EU one, we will take into
consideration the domestic law at first but then , realizing the
contrast between the two regulations, we can send a question to the
European Court asking for an interpratation of the true meaning of the
law that has to be applied.
3. No
ARTICLE 41 RIGHT TO GOOD ADMINISTRATION
41.2.a
Yes as a rule, there is a guarantee in article 20 of the Constitution
as well as in the Code of Administrative Procedure. The only exception
to the rule exists when the Administration takes a measure where the
competence is pledged and the law is applied directly in the case ,
because there cannot be any discussion about taking the measure or not
since there exists a direct obligation provided by law and the
Administration has no alternative to that.
41.2.b
Only when asked for ? Yes . Every interested person can have access to
his or her file addressing the court , not directly asking the
Administration.
41.2.c
Yes ther is such an obligationfor the administration to give reasons
for its decisions and is based upon the law or can derive from general
principles applied in the administrative praxis. The extent depends on
the significance of the case bur usually it takes no more than a few
lines.
ARTICLE 47 RIGHT TO AN EFFECTIVE REMEDY AND TO A FAIR TRIAL
47.1 The right to an effective remedy before a tribunal
Time limits : Yes , law nr 1943/1991 and the Code of Administrative
procedure , provide a deadline of 60 days for the administration to
decide upon an application of a party , but apart from that ther is a
general deadline of three months period that is considered as a silent
negative response of the Administration to the demand of the party and
is taken as a starting point for the action to be taken by the party
before the Court.
Is there a legal remedy... : Law nr 1943/1991 provides that every
interested party has a claim for compensation in case of non respond in
the time limit (action for annulement).
Has your countr guaranteed.... : No there is not a specific remedy
before a Court for that , there is only the general right for everyone
who’s rights are violated to turn to a national Court asking for a
compensationfor this violation and after having gone through all the
jurisdictions provided for the case , then , turn to the European Court.
Of course ther exists a recognition of the superior force of the
European law in relation to the national law.
Is it necessary to appeal.... :Yes in some cases there is this
obligation , for a party to appeal to a higher administrative authority
before appealing to a court. For instance , when someone is seeking an
invalidity pension in the first place is applying to the Director of the
social security organisation and then if he turns down his application ,
then he has to appeal to a special commitee whose decision is the one
to be taken before a court. There are two instances within the
administrative law suit. There is the tribunal of the first instance and
the court of Appeal.
47.2 The right to a fair hearing
Yes of course my country fulfilsthis obligation regarding the
application of EC Law not only through the recognition of the civil law
rights and obligations but furthermore through the guarantees given by
the Constitution and beyond that through the superiority aof the
European law in relation to the national one.
OTHER QUESTIONS
ARE THE ADMINISTR COURTS IN YOUR COUNTRY......
- The Admin Courts in my country are confined to look at the legality
of the administrative decisions whenever dealing with a recourse and
they are not competent for the control of the "suitability" of the
administrative decision. The latter belongs only to the competence of a
higher administrative autority whenever such a control is provided by
the law.
IS THE ADMINISTRATIVE COURT ENTITLED........
- Yes the Admin Court is entitled to control the question of fact when
it has to deal with a recourse. This control is part of their
jurisdiction. But if we talk about the Counsil of the State , then there
is not such a jurisdictionsince this Supreme Court of Appeal can only
annul a decision of the administration or retract a decision of a court.
On the other hand it should be pointed out that during the recent years
the Counsil of the State has delegated a certain number of cases
belonging to its competence to the lower courts (Tribunal of first
instance and Court of Appeal) for reasons of optimization of the
division of the cases presented before it. In such a case the lower
courts act as if they were the counsil of the State and cannot control
the question of fact. Instead as mentiond before , when dealing with
their normal competence , they have a broad control to look for the
question of fact, including if necessary , the hearing of witnesses and
experts (but this is rather an exception to the rule) which is to
control if the grounds given by the administration are reasonable or
not.
DO ADMIN COURTS RELY ON EXPERTS WORKING......
- In our legal system , the experts working for the administration can
always be heard by the courtsand they are considered reliable . The
court can nominate its own experts only to control the experts who were
hired by the opposite party (the individuyal that turned to the court in
the first place)
CAN ADMIN COURT REPLACE ........
- No it is only a "cassation". Of course the court with its decision
recognise the right of the individual complaining against a decision of
the administration that is annulated.
IS THERE A "TWO PARTY SYSTEM"......
- Yes it is a "two party system"
IS THE ADMIN COURT LIMITED TO THE ARGUMENTS.........
- In some cases the administrative court is limited to the arguments
put forward by the "parties" but in other cases it can consider further
data even if they are not presented by the "parties" , because in the
administrative procedure there exists the "interragatory" system in
which the court can take into consideration data related to the strictly
legal aspects of the case and the violation of procedured rules even if
they have not been pointed out by the parties.
MEETING IN BEAULIEU SUR MER . ANSWER 2
SECOND PART
Chapter I General aspects : paragraphs 1 and 2
Scope of the recommendation
1,2
. This recommendation applies to all professional judges including of
course administrative judges, since they exercise judicial functions
disposing full jurisdiction (“en plein jurisdiction”) . What could not
be adopted in our legal system is the notion of the “non professional
judge” even as a term , because the title “judge” applies only to the
competent professional as described above and could not be extended
through certain provisions so that they could include non professional
ones.
Judicial independence and the level at which it should be safeguarded
3,4,5,6,7 :
Independence of the judges that is connected with the right to a fair
trial for the individuals as stated in Article 6 of the Convention
requires the independence of the judiciary cover by the Constitution to
assure the compatibility with the provisions of the Recommendation.
8 :
There is not anything like o council for the judiciary as it is
described in the Recommendation. There only exists a remedy before a
higher court (council of the State as the highest court for the
Administrative jurisdiction and the court of cassation for the civil and
penal jurisdiction) where a single judge could address in case of
interference coming from other powers of the State. Here, I could point
out a risk, whenever the interference (presented as pressure put upon a
lower grade judge) derives from a member or members of this competent
highest court , resulting in a non efficient protection of the
independence of this single lower judge.
9 :
Withdrawal of a case from a particular judge already happens when there
is a valid reason for that such as involuntary delay in elaborating the
cases that have been assigned to him due to objective causes (for
instance an illness) and this has been detected by the competent
authority that rules the court like the president in case of a
peripheral court or the three member Administration of the court
presided by the President in the case of the bigger court. I should
point out here that the possibility for the state to withdraw a case
open before an administrative court does not practically exists in our
system since the presence of the lawyer represented its interests is
always taken for granted, and only the individual can leave the case if
he has no interest in going on with that which happens for instance if
he is not officially represented by a lawyer whenever such a
representation is obligatory.
10 : Of course it is obvious that only the courts themselves decide on their own competence without any external influence.
{{Chapter II}} External independence
11,12,13,14,15,16,17,18,19,20,21.
The
external independence of judges , as a reflection of the structure of
the judiciary in order to apply the law with impartiality and
objectiveness safeguards the protection of human rights of the
litigating parties and their right to equality before the courts since
this system is actually protecting the public interest. Under this
perspective , the judges have an appropriate relationship with the other
factors of the Administration as well as with professionals like the
lawyers and whenever there is a decline of this respect presenting
itself as an attempt of corruption of the judge or as an improper
influence there already exists a series of provisions implementing
sanctions for such improper or even criminal attempts. Of course there
is also constitutional obligations for reasoned decisions made by judges
which are made known in a public session and they are only subject to
appellate or re-opening proceedings before a higher court. Due to the
constitutional rule of the division of powers no other power except the
judicial one can invalidate judicial decisions. As about the tendency of
the media to comment such decisions in case of increased interest there
is but is not always enough , a need for some kind of justification of a
decision or of a measure taken by a judge or a court bur here lies a
big challenge because there is always a risk of over exposure of judges
in the media that are not always ruled by the well known “public
interest” or they are interpreting it as they like , so there should be a
moderate approach to safe guard the protection of the judiciary in the
face of this aggressive need for information by the media. On the other
hand public confidence cannot always be taken for granted since judges
must protect their own image and they should not take part in social
activities that are not compatible with that being only able to
participate in activities having to do with their main duties like
participating in commissions , councils that are related to these duties
, but up to some point, since that kind of participation could put a
strain on the judge and distract him from his main duties.
{{Chapter III}} Internal independence
22,23,24,25
This
kind of independence has been analyzed before under the title of
judicial independence and the level at which it should be safeguarded.
As a rule independence of the judge in the exercise of his adjudicating
functions is always protected and provided by the constitution and the
law.
{{Chapter IV}} Council for the judiciary
These
councils play a role of supervision of the inferior courts and are
consisted only of judges belonging to the highest court of every
jurisdiction. For instance, only the judges of the council of the state
can participate (after having been chosen for every single period
through drawing lots) in such a council which is competent for all the
matters having to do with disciplinary measures for the judges of the
administrative justice , their promotions , their evaluation made every
year for everyone of them by a member of this council and so on . It
should be pointed out that such a council exerts only an “internal
activity” as described before and can only consists in our system of
highest grade judges being competent for the matters mentioned before.
{{Chapter V}} Independence , efficiency and resources
30,31,32 :
Efficiency
of judges is always a must whenever we talk about high quality
decisions that promote the belief in the judicial system and it has to
do with a well informed judge “which can be realized through constant
training and up to date information for the judges” and decisions taken
within a reasonable time so that both criteria of good quality and
reasonable quantity are satisfied. Unfortunately I should point out here
that this combination looks in reality more like a wishful thinking
because of the excessive amount of cases accumulated to the courts due
to a big variety of reasons so that the judge has to make a constant
effort and work under a lot of pressure all the time just to be always
effective and quick. Then , conditions are not always ideal for the
functioning of the judicial system if we consider the financial aspect
that often interferes with the need for a well equipped system of
judicial activity. If for instance the buildings of the courts are not
appropriate the secretarial background is poor and the number of judges
is not enough to face an ever increasing number of cases, then
efficiency becomes a problem.
Resources
33,34,35,36,37,38
This topic has been presented already during the analysis of the previous chapter.
Alternative dispute solution
39
There
is a system of alternative dispute solutions in the administrative
courts whenever we deal with taxation matters where the individual can
ask the tax office for a compromise before the case is taken to the
court.
{{Chapter VI}} Status of the Judge
Selection and career
44,45,46,47,48
Judges
in our legal system are selected after passing a difficult two faces
trial with the aim to succeed with entering the school of Judges. Then
there is a year and a half training period during which they decide what
jurisdiction they are attracted to and after they make this choice they
are placed to the analogous courts. In this selection there is no
discrimination on the grounds of colour , gender , sexual orientation ,
religion or political opinion ,but the only requirement is that the
judge to be must be a national of this country which is not
discriminatory. The commission appointed to the task of selecting the
judges to be consists of judges of the council of the state and the
court of cassation and related university professors and has no
interference with members of the executive and legislative powers.
Tenure and irremoveability
49,50,51,52
Security and irremovability of judges in our legal system are
guaranteed by constitutional provisions so that in an ever changing
working environment for the public servants (not to talk about the
private sector of the Economy) the position of the judges and the
stability of their career is protected so as to ensure the maximum
safety during their decision-making process.
Remuneration
53,54,55
There is a general rule in the constitution providing that
remuneration of judges as members of the judicial power must be
analogous to that of the members of the other two powers. Then there is a
law providing the more specific dispositions about that matter , taking
into consideration the complexity of the overall working conditions
together with the need to shield the judge from outside influences as
much as possible.
Training
56,57
As it has been already mentioned, training after selection for the
School of Judges , is always taking place during the career of the
judge, through seminars and in service training, funded by the State ,
in matters of judicial interest that has to be constant due to the
complexity of the cases presented before the courts that pose more of a
challenge for the judge .
Assessment
58
This matter has been already analyzed when we referred to the
competence of the Council for the Judiciary as this is exercising
control over the working conditions of judges of the lower Courts .
{{Chapter VII}}- Duties and Responsibilities
Duties
59,60,61,62,63,64,65
The topics contained in this Chapter have been already analyzed during the presentation of the competence of judges and their working obligations that consist of applying the relevant rule to the case presented before them in a reasonable time margin avoiding delay tactics.
Liability and Disciplinary Proceedings
66,67,68,69,70
Judges here are protected from actions taken against them by
individuals whenever they just interpret the law to find its true
meaning and they can be considered guilty in cases of malice and gross
negligence . In such an adverse case (that in judiciary praxis can
rarely be encountered ) there exists a specific court for that.
On the other hand, disciplinary proceeding can take place whenever
judges have been accused of not complying to the demands of their duties
in an efficient and proper manner. Such proceedings are conducted there
by the Council for the Administrative Judiciary that consists of judges
from the Council of the State as has been mentioned before.
{{Chapter VIII }} Ethics of Judges
In order for the judges to comply with the demands of an ever
expanding society of the western civilization, they must be guided in
their activities by ethical principles of professional conduct. Such a
compliance is based on rules contained in a code for working conditions
of judges where there is a description of the ethically right conduct of
the judge.
On the other hand , in reality, there does not exist a body for the
judge to seek advice on ethics within the judiciary. Instead, there is
only this rather non flexible code that describes the do’s and do nots
for the judges but in a pre-established manner, condition that results
in a lack of adjustments to the needs of today’s society.
As a conclusion, the judicial system presents many challenges in
today’s society where there is an ever increasing interconnection
between people often of different cultures in the same country where the
notion of nation is not easily established as it used to be before, and
the rules deriving from an ever expanding technology and globalization
make the task of being a judge quite demanding. So let’s hope that this
Recommendation can address all these needs and give the National Judge
the right equipment to comply with the demands of an International
Environment.