Following an investigation, the Ombudsman has concluded that the administration has, over a long time period and in violation of the Constitution and the European Convention on Human Rights (ECHR), failed to comply with court decisions.
In May 2009, a retired MP appealed to the Court of Auditors against an administrative decision which had rejected an incremental adjustment of his pension. In 2016, the Court of Auditors vindicated the former MP and ordered the incremental adjustment of his pension from 1 January 2008. However, the administration refused to comply with the final decision and the former Member appealed to the Court of Auditors’ Compliance Chamber, which again upheld his case, calling on the administration to comply with the decision within three months. After the expiry of that time-limit, the Compliance Chamber also ordered the Ministry of Finance to pay the applicant a fine of EUR 3 000.
Despite the passage of more than five years, by January 2022 the authorities had still failed to comply. Furthermore, the administrative authorities failed to issue a ministerial decision, although they were required to do so, as provided for in Article 23 para. 2 of Law No. 4387/2016 (Government Gazette A’ 85/12.5.2016, which would have regulated the manner, time and procedure for the payment of the retroactive payments.
Article 95 paragraph 5 of the Greek Constitution establishes the administration’s obligation to comply with court decisions (“The administration has an obligation to comply with court decisions. The breach of this obligation shall give rise to liability for each competent body as prescribed by law. The law shall prescribe the measures necessary to ensure that the administration complies’). Furthermore, according to Article 94 para. 4 of the Constitution, the civil and administrative courts have the power to take measures against the administration when it fails to comply with court decisions (“The civil or administrative courts may also be given any other competence of an administrative nature as the law may determine. Such powers shall include taking measures to ensure that the administration complies with court decisions. Judgments shall also be enforceable against the State, local authorities and legal persons governed by public law.”).
It should also be noted that Law 3068/2002 (Government Gazette A’ 274/14.11.2002) aims to audit the compliance of administrative authorities with the decisions of the courts, by establishing three-member councils in the respective jurisdictions. These councils, operating on the basis of Decree 61/2004 (Government Gazette A’ 54/19.2.2004), have the power to determine whether or not the administration has complied with court decisions. In fact, the decisions of the Trial Boards of the Supreme Courts that impose sanctions on the administration for non-compliance with judgments are binding and, in application of the constitutional requirement of Article 95 para. 5, are intended to be enforced.
Interpreting the above legislative framework, the State Legal Council accepts in several of its opinions that it is imperative that the administration is obliged to comply directly with the decisions of the courts. Furthermore, according to the Court of Auditors, the administration’s failure to comply with court judgments is contrary to Article 26(3), Article 20(1) of the Constitution and Article 6(1) of the ECHR, according to which every State is obliged to promptly execute court judgments
The Ombudsman advised that the obligation of the administration to comply with judicial decisions constitutes a fundamental aspect and expression of the rule of law and the democratic principle, while at the same time constituting an express constitutional requirement. For this reason, all public administration bodies have an obligation to comply fully and in a timely manner with judicial decisions.
In a state governed by the rule of law, the administration must enforce the decisions of the courts, even when the decisions are not in the administration’s favour. In this case however, the Greek authorities, in breach of constitutional provisions and the ECHR, have failed to comply with their obligations resulting from decisions issued by the Court of Auditors.
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