A sworn administrative inquiry (EDE) is conducted whenever the service has serious suspicions or clear indications of the commission of a disciplinary offence. Following written and oral queries, the competent Service of the Ministry of Interior provides information regarding the conduct of a Sworn Administrative Inquiry (E.D.E.), pursuant to Article 126 of the Civil Servants’ Code (Law 3528/2007), as replaced by Article 2 of Law 4057/2012 (Gov. Gazette A’ 54), aiming at the proper and uniform application of the relevant provisions and at safeguarding the credibility of this procedure as a preliminary action within the framework of the disciplinary procedure.
SWORN ADMINISTRATIVE INQUIRY (E.D.E.) – Article 126 of the Civil Servants’ Code, as in force
In application of the relevant provisions, the procedure for assigning and conducting an E.D.E. is described as follows:
Identification of the need to conduct an EDE (when and for what purpose?)
Assignment of the EDE (by whom it is ordered, by whom it is conducted, deadline for completion)
Conduct of the EDE (investigative acts)
Submission of a reasoned report
Initiation of disciplinary prosecution / Conduct of a supplementary EDE / Completion of the procedure without disciplinary prosecution – Filing
When is a sworn administrative inquiry E.D.E. conducted and what is its purpose?
A sworn administrative inquiry (E.D.E.) is conducted whenever the service has (a) serious suspicions, i.e. notable and significant information, or (b) clear indications, i.e. serious indications which are in principle persuasive, of the commission of a disciplinary offence (Interpretation of the Civil Servants’ Code, A.I. Tachos – I.L. Symeonidis, Articles 106 et seq., Sakkoulas Publications, Athens-Thessaloniki, 2007, p. 1349 et seq.).
The purpose of the EDE is the gathering of evidence (not informally, as in the preliminary inquiry) for the purpose of establishing:
i) the commission of a disciplinary offence,
ii) the identification of the persons who may be responsible, and iii) the investigation of the circumstances under which it has been committed, including the investigation of the elements of culpability and attribution (Article 106 of the Civil Servants’ Code).
The sworn administrative inquiry EDE constitutes an investigative method between the preliminary inquiry (Article 125) and the disciplinary investigation (Article 127), through which the administration is facilitated in identifying any offences and responsible persons, so that, if necessary, the disciplinary procedure may subsequently be initiated. By means of this, both the institutional standing of the service and the personality of the civil servant are safeguarded against unfounded and unproven accusations and rumours (Legal Council of the State Opinion 271/2001). A sworn administrative inquiry (EDE) may also be ordered following a preliminary inquiry, where the person conducting the preliminary inquiry considers that the disciplinary offence under examination requires further investigation.
The sworn administrative inquiry EDE does not constitute the initiation of disciplinary prosecution and does not interrupt the limitation period of the disciplinary offence under examination. On this basis, it is not possible for the civil servant against whom suspicions or indications of the commission of a disciplinary offence are gathered to be characterised, during the EDE stage, as defendant or as a person under disciplinary prosecution. It should also be noted that, until the completion of the disciplinary procedure that may be initiated after the conduct of the EDE and the issuance of a disciplinary decision, the presumption of innocence of the civil servant applies, by analogous application of the corresponding fundamental rule of criminal law (Legal Council of the State Opinion 271/2001).
Assignment of the EDE
The right to order a sworn administrative inquiry EDE is held by any disciplinary superior, as defined in accordance with the provisions of Article 117 of the Civil Servants’ Code, as replaced by Article 2 of Law 4057/2012 and amended by Article 6 para. 2 of Law 4325/2015 (Annex – Template 1).
The sworn administrative inquiry is assigned to and conducted by a permanent civil servant, that is, exclusively by a civil servant under a public-law employment relationship, of grade A’ of the same Ministry or legal entity of public law (Article 126 para. 2 of the Civil Servants’ Code, as amended by para. 1 of Article 41 of Law 4590/2019), and the assignment of the conduct of an EDE to a civil servant of a grade lower than that of the person to whom the act is attributed is absolutely prohibited. From the combined reading of the provisions of Article 126 of the Civil Servants’ Code, according to which the EDE is conducted by a civil servant of equal grade to that of the person under examination, and Article 97(c) of the Civil Servants’ Code, according to which there is no precedence between civil servants of the same branch and grade, it follows that the civil servant conducting the EDE need not also be senior in service to the civil servant to whom the act is attributed (Athens Court of Appeals (EfAth) 62/2015, 1588/2008).
At the discretion of the person ordering the conduct of the sworn administrative inquiry, and on the basis of the circumstances of the commission of the disciplinary offence under investigation, the EDE may, for reasons of safeguarding objectivity, also be assigned to a permanent civil servant of grade A’ of another Ministry or, in the case of a legal entity of public law, of the Ministry that supervises it (Article 126 para. 2 of the Civil Servants’ Code, as amended by para. 1 of Article 41 of Law 4590/2019). It is noted that, given that the provisions provide this possibility, disciplinary superiors should, weighing the actual circumstances of each case and the need to safeguard objectivity, consider whether grounds exist for assigning the conduct of the E.D.E. to a permanent civil servant of another Ministry or, in the case of a legal entity of public law, of the supervising Ministry.
If the civil servant to whom the commission of the disciplinary offence is attributed is the head of an organisational unit of any level, the order for conducting a sworn administrative inquiry shall be assigned to a head of an organisational unit of at least the same level.
Furthermore, pursuant to the provision of para. 13 of Article 100 of Law 4622/2019, the Governor of the National Transparency Authority (E.A.D.) may cause the conduct of an E.D.E., the conclusions of which, fully substantiated, shall be communicated to him without delay. In this case, if disciplinary liabilities arise, the initiation of disciplinary prosecution constitutes a bound administrative action for the competent bodies, which shall be carried out within an exclusive deadline of ten days from the receipt of the conclusions. The above E.D.E. shall be conducted, by order of the Governor of the Authority, in derogation from the provisions of the Civil Servants’ Code, by Inspectors-Auditors of the Authority, designated by the Governor of the Authority, and one permanent civil servant of at least grade A’ of the audited body, authority or service, who is correspondingly proposed by the body of origin, within a deadline set in the relevant invitation of the Governor of the Authority. If the deadline set as above expires without action, the Governor of the Authority shall assign the conduct of the E.D.E. solely to Inspectors-Auditors of the Authority. The Governor of the Authority, when assigning the conduct of an E.D.E., must communicate this with a summary of the matter to the competent inspector-auditor and to the service in which the civil servant serves or to which he organically belongs. In all other respects, the E.D.E. is conducted in accordance with the provisions governing the body concerned, and where there is no specific provision, the corresponding provisions of the Civil Servants’ Code apply by analogy. Refusal to give a deposition in an E.D.E. conducted as above constitutes an autonomous disciplinary offence, attracting the penalty of a fine of up to six months’ remuneration. If the E.D.E. conducted as above establishes the commission of a disciplinary offence among those punishable, under paragraph 2 of Article 109 of the Civil Servants’ Code, by the penalty of permanent dismissal, the Governor of the Authority (E.A.D.) himself initiates the disciplinary prosecution and refers the case to the competent disciplinary council. The Inspectors-Auditors serving at the E.A.D. may conduct E.D.E. following a relevant order from the Governor of the Authority, who in any case may initiate or order the initiation of disciplinary prosecution or the taking of other administrative measures, while an E.D.E. may also be conducted during the audit, following a recommendation by the Inspectors-Auditors and an order from the Governor of the Authority, in which case the E.D.E. is conducted solely by Inspectors-Auditors of the Authority.
Furthermore, according to Opinion no. 271/2001 of the Legal Council of the State, the provisions of Article 126 of the Civil Servants’ Code do not expressly provide, during the conduct of the EDE, for the right of the civil servant to whom the commission of a disciplinary offence is attributed to seek the recusal of the person conducting it, whereas a corresponding provision exists in Article 127 of the Civil Servants’ Code for the disciplinary investigation. Nevertheless, if, during the conduct of the EDE, the existence of grounds justifying the recusal of the person conducting it is invoked and established, or if the EDE conducted suffers from another defect — relating either to the person conducting it or to flaws, omissions or irregularities affecting its validity or creating in the person under examination suspicions of lack of impartiality and objectivity — beyond, of course, any justified dissatisfaction stemming from the proper performance of his duties as the person conducting the EDE, it must be accepted that the disciplinary superior who ordered the EDE, to whom any relevant complaint will be addressed in writing by means of an application for recusal by the interested party during the conduct of the EDE, or even ex officio — should any relevant information come to his attention in any manner — is obliged to verify the merit of these and to take the appropriate measures in order to remedy any injustice or simply to mitigate justified or even probable complaints, in application of the principle of impartiality, as a general principle of administrative law (Article 36 of the Civil Servants’ Code – Conflict of Interest Bar, and Article 7 of the Code of Administrative Procedure (KDD) – Law 2690/1999).
However, the lawful performance of duties, with the resulting dissatisfaction or unfavourable situations that arise from the nature of the procedure, cannot, without other specific and proven elements, establish the concept of hostility, and general and vague allegations which do not demonstrate in a specific and clear manner a ground for recusal cannot be taken into account. Action, however, taken despite the existence of grounds for recusal, entails the annulment of the relevant administrative act, due to the presumption created of influence on the body that acted, even if it is not proven that the decision taken is in fact biased.
The sworn administrative inquiry EDE is concluded within two (2) months from the date on which the decision assigning its conduct was notified to the civil servant. The civil servant conducting the sworn administrative inquiry may request, by means of a fully reasoned application, an extension of this deadline of up to one month. It is noted that this deadline was provided for by the provisions of the Civil Servants’ Code (Law 3528/2007) for reasons of expediting the procedures, so that if the person assigning the E.D.E. reasonably considers that, for reasons of public interest, its completion in less time is imperative, he may set a shorter deadline than two (2) months for the person conducting the E.D.E. In any event, the right of the person conducting the E.D.E. to request, by means of a fully reasoned application, an extension of this deadline of up to one month remains in force.
Conduct of the EDE
By reference of the provisions of Article 126 of the Civil Servants’ Code, the provisions of paragraphs 5, 7 and 8 of Article 127 of the Civil Servants’ Code, as well as the provisions of Articles 129 and 131 of the Civil Servants’ Code which apply to the disciplinary investigation, also apply by analogy to the conduct of an EDE. According to these:
- The EDE is confidential.
- The EDE may be extended to the investigation of other offences of the same civil servant, provided that sufficient evidence emerges.
- The duties of clerk are performed by a civil servant designated by the person conducting the EDE (Annex – Template 2).
As regards the issue of access to the materials of the EDE, according to Opinion 501/2007 of the Legal Council of the State, as well as other opinions issued by the Legal Council of the State on the same issue (451/2012, 454/2012, 457/2012, 458/2012), the confidentiality of the EDE is not lifted upon the submission of the conclusions report by the person conducting it; rather, its preservation is linked to whether disciplinary prosecution will be initiated against the civil servants to whom the conclusions report of the EDE attributes any disciplinary liability. If, on the basis of the conclusions report of the EDE, disciplinary prosecution is initiated, then the person under disciplinary prosecution may obtain access to the materials of the EDE, prior to submitting his defence statement, as expressly provided by Article 135 para. 3 of the Civil Servants’ Code. During the intervening period, between the submission of the EDE report and any initiation of disciplinary prosecution, the confidentiality of the EDE is maintained, for as long as the competent disciplinary bodies are at the stage of studying the materials of the EDE, and for this reason access to the materials of the EDE is not permitted (cf. Legal Council of the State 221/2007, 178/2000, 610/1999). If, on the contrary, on the basis of the above EDE report, the competent disciplinary bodies decide that disciplinary prosecution should not be initiated against the civil servants involved, and the file is placed in the archive, then access to its materials may be obtained by anyone establishing reasonable interest, under the conditions and limitations provided by Article 5 of the Code of Administrative Procedure (KDD) or any other special provisions.
During the examination of the civil servant to whom the commission of a disciplinary offence is attributed, the provisions of Articles 130 paragraph 3 and 132 of the Civil Servants’ Code on the examination of witnesses and the examination of the civil servant to whom the commission of a disciplinary offence is attributed, respectively, apply by analogy.
EXAMINATION OF WITNESSES
The provision of para. 3 of Article 130 of the Civil Servants’ Code grants the right to examine witnesses during the conduct of the EDE and up to the examination of the civil servant to whom the commission of a disciplinary offence is attributed, upon written application by him addressed to the person conducting the EDE, while the person conducting the EDE is obliged to examine at least five of the proposed witnesses. The failure to examine a proposed witness constitutes a violation of an essential procedural form (Annex – Templates 3 and 4).
Witnesses are examined under oath in accordance with the provisions of the Code of Criminal Procedure (KPD). The non-appearance or refusal to give a deposition by a witness without reasonable cause constitutes a misdemeanour and, if the witness is a civil servant, also a disciplinary offence (Article 107 para. 1(l) of the Civil Servants’ Code, as in force). According to Article 218 of the Code of Criminal Procedure (KPD), as amended and in force, regarding the procedure for the swearing-in of witnesses: “1. Each witness must, before being examined in court, be sworn in publicly. To this end, he is asked whether he prefers to take a religious or a civil oath. 2. The form of the Christian oath is as follows: ‘I swear before God to tell the whole truth and only the truth, without adding or concealing anything.’ 3. If the witness believes in a religion or denomination that prescribes another form of oath, he gives the oath according to that form. 4. The civil oath is given as a solemn affirmation in the following form: ‘I declare, invoking my honour and conscience, that I shall tell the whole truth and only the truth, without adding or concealing anything.'”
By these provisions, a right is established for the civil servant under examination to propose up to five witnesses, and a corresponding obligation of the Administration to examine at least these, regardless of whether, in its view, the proposed witnesses are unrelated to the disciplinary case in question or whether their examination is inappropriate. However, this proposal for the examination of witnesses must be made by the end of the EDE or, at the latest, by the time of the defence statement of the person under disciplinary prosecution, provided, however, in the latter case, that he had not been afforded the opportunity to propose witnesses during the EDE stage (see Council of State (StE) 505/2010, 2480/2008, 1758/2007, Athens Court of Appeals (EfAth) 1299/2013, etc.). There is no obligation on the part of the person conducting the EDE to examine witnesses by way of confrontation with the person under examination, at the latter’s request (Athens Court of Appeals (EfAth) 946/2015).
It is noted that, according to para. 4 of Article 130 of the Civil Servants’ Code, if the sworn administrative inquiry was not directed against a specific person, the disciplinary council, if it eventually takes up the case, is obliged to conduct a supplementary investigation, in order to enable the person under prosecution to be examined unsworn or to propose the examination of witnesses, unless he declares before the council that he does not wish to be examined unsworn or to propose the examination of witnesses.
Furthermore, during the conduct of the EDE, the provisions of Articles 129 and 131 of the Civil Servants’ Code, concerning the investigative acts of on-site inspection and the appointment of expert witnesses, also apply by analogy.
ON-SITE INSPECTION
The on-site inspection is conducted in person by the person conducting the EDE, in the presence of a clerk, except where the inspection must take place outside the seat of the person conducting the EDE (Article 129 para. 1 and Article 127 para. 4 of the Civil Servants’ Code).
The inspection of public documents or of private documents that have been deposited with a public authority is conducted at the office where they are kept.
Documents held by a private person are handed over to the person conducting the EDE and are obligatorily returned after the conclusion of the disciplinary procedure. By way of exception, the inspection of private documents which are absolutely necessary for the handling of a current matter of their holder or of another person is conducted by the person conducting the EDE at the place where they are located. The person conducting the EDE, upon request of the private person, is obliged to issue, free of charge, a receipt of delivery and an official copy of the documents received.
EXPERT WITNESSES
Public servants, employees of legal entities of public law and local authorities, as well as officers of the armed forces, the security forces and the coast guard, may be appointed as expert witnesses by the person conducting the sworn administrative inquiry EDE (Annex – Template 5).
In cases where the sworn administrative inquiry EDE is conducted to investigate cases involving minors, it is recommended that an expert opinion be conducted by specialised scientific personnel (e.g. child psychologists), in order for them to possess the appropriate knowledge that will contribute to the diagnosis and substantiation of the facts under investigation.
Expert witnesses, prior to conducting the expert opinion, are sworn in in accordance with the provisions of the Code of Criminal Procedure (KPD) (Article 194 of the Code of Criminal Procedure, as replaced by Article 39 para. 1 of Law 4055/2012). According to this article, if the expert witness is not sworn in in accordance with what is provided in this provision, the expert opinion is null and void (Annex – Template 6).
EXAMINATION OF THE CIVIL SERVANT TO WHOM THE COMMISSION OF A DISCIPLINARY OFFENCE IS ATTRIBUTED
According to Article 132 of the Civil Servants’ Code, which applies by analogy to the conduct of an EDE, during the EDE the civil servant to whom the commission of a disciplinary offence is attributed must, in any event, be summoned for examination (Annex – Template 7). The person conducting the EDE has an obligation to summon for examination the civil servant to whom the commission of a disciplinary offence is attributed, on pain of nullity of the procedure, since the summons for examination constitutes an essential procedural form, the violation of which may possibly be cured in the course of the procedure by the examination of the person under prosecution within the framework of the disciplinary investigation, or by his defence statement, if disciplinary prosecution is initiated (Council of State (StE) 2245/1997, 2160/1971). (Interpretation of the Civil Servants’ Code, A.I. Tachos – I.L. Symeonidis, Articles 106 et seq., Sakkoulas Publications, Athens-Thessaloniki, 2007, p. 1379 et seq.).
The civil servant is examined unsworn and may appear accompanied by a lawyer, but not through a lawyer, that is, without the presence of the civil servant himself. The non-appearance of the civil servant or his refusal to be examined does not impede the progress of the EDE (Annex – Template 9). It is noted that, although the examination of the person under prosecution under Article 132 of the Civil Servants’ Code is in principle oral (in contrast to the provision for written submission of the defence statement under Article 135), this does not constitute a prohibition on the submission of a written memorandum in order to satisfy the constitutionally enshrined right to a prior hearing (Article 20 para. 2 of the Constitution), and accordingly such memorandum, although it does not substitute for personal appearance before the person conducting the sworn administrative inquiry EDE, must be taken into account and mentioned in the conclusions of the E.D.E.
According to Article 138 of the Civil Servants’ Code, as replaced and in force, which concerns the service of documents on the person under prosecution or, in this case, on the civil servant to whom the commission of a disciplinary offence is attributed, the summons for the defence statement and any other invitation or notification to the person under examination shall be served by a bailiff or other public officer on the person himself, or at the residence which he has declared to his service, on a person residing with him. A receipt of service is drawn up for this service. If service cannot be effected for any reason, including the case of unknown residence of the person under examination, the document is posted at the premises of the civil servant’s service and a record is drawn up, signed by one witness. In case of refusal to accept service, the person carrying out the service draws up an act in which the refusal is certified (Annex – Template 8).
It is noted that, according to the provision of subparagraph (b) of para. 1 of Article 134 of the Civil Servants’ Code, as replaced and in force, the examination of the civil servant during the stage of the sworn administrative inquiry or the disciplinary investigation in no case substitutes for the summons for the defence statement.
Submission of the reasoned report
The sworn administrative inquiry EDE is concluded with the submission of a reasoned report by the civil servant who conducts it. This report is submitted, together with all the materials gathered, to the disciplinary superior who ordered the conduct of the inquiry.
This report, which must be reasoned — with the reasoning constituting an essential procedural form — should include the following (Annex – Template 10).
1. BACKGROUND – The history of the case is set out, any preliminary inquiry that has preceded, the order of the person who ordered the EDE, as well as the accompanying documents and the legal framework on the basis of which the case is being investigated.
2. ACTIONS – DOCUMENTS – The investigative acts and actions of the person conducting the EDE are described (examination of witnesses, on-site inspection, expert opinion, examination of the civil servant), and the documents accompanying the case are mentioned, as well as those which may have been submitted by witnesses. Likewise, those which may have been requested and received by the person conducting the EDE from various services or from private persons are also mentioned.
3. FINDINGS – Includes: (a) the precise assessment of the witness depositions taken, without requiring transcription of their content; (b) the precise assessment of the documents and of all the evidentiary material; (c) the correlation of all the materials gathered; (d) commentary on all of the above, with a view to drawing logical conclusions; and (e) the affirmation as to whether there was intent or negligence.
4. CHARACTERISATION OF THE DISCIPLINARY OFFENCES ESTABLISHED – A precise characterisation is made of the acts and omissions which constitute disciplinary offences or also criminal offences, if any, without expressing a view on the possible penalty that may be imposed.
5. CONCLUSIONS – The conclusions arising from the findings are set out. Their formulation must be clear.
If the report establishes the commission of a disciplinary offence by a specific civil servant, the disciplinary superior is obliged to initiate disciplinary prosecution within three (3) months from the submission of the report (Article 126 para. 4 of the Civil Servants’ Code, as amended by para. 2 of Article 41 of Law 4590/2019), whereas if no such finding emerges, he may place the case in the archive.
Furthermore, if the contents of the E.D.E. report give rise to doubts as to the commission of disciplinary offences or as to the persons involved in them, without however removing the suspicions that prompted it, the conduct of a supplementary E.D.E. may be ordered. However, in cases where, despite any doubts, serious indications of the commission of such offences by specific persons emerge, further investigation of the case should be sought from the competent disciplinary council through the conduct of a disciplinary investigation pursuant to Article 128 of the Civil Servants’ Code (Legal Council of the State 73/2012, 444/2012). However, given that the E.D.E. is concluded with the drafting and submission of a reasoned report, the order to conduct a second E.D.E. for the same charges contravenes the principle of sound administration (Council of State (StE) 1626/1999), unless new evidence has emerged in the case under investigation.
It is recalled that, according to circular no. DIDAD/F.69/55/9899/15-4-2014 of our Service (ADA: VIINX-XX5), the E.D.E., which does not constitute the initiation of disciplinary prosecution, is not included in the concept of disciplinary procedure under Article 114 of the Civil Servants’ Code and is not suspended, the provisions of Article 114 of the Civil Servants’ Code not being applicable in such case, in order to achieve the swift handling of disciplinary cases and to avoid causing problems in the smooth functioning of services.
The recipients of the present circular are kindly requested to communicate it, by every appropriate means, to the civil servants and to all bodies that fall under or are supervised by them.
The Decentralised Administrations are kindly requested to communicate the present to the second-tier local authorities they supervise and to the legal entities thereof, in order to facilitate the competent services in the application of the relevant provisions.
See the circular and the templates in detail at diavgeia.gov.gr
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FREQUENTLY ASKED QUESTIONS ON SWORN ADMINISTRATIVE INQUIRY (EDE)
1. What does a civil servant face when an EDE is ordered against him?
The EDE constitutes a preliminary investigative stage which is ordered when the service has serious suspicions or clear indications of a disciplinary offence. The civil servant is not yet considered to be under disciplinary prosecution, and the presumption of innocence applies in his favour; however, the findings of the report may lead to the initiation of disciplinary prosecution with penalties reaching as far as permanent dismissal, depending on the gravity of the offence (Article 109 of the Civil Servants’ Code).
At the same time, if the facts also constitute a criminal offence (e.g. breach of trust, breach of duty, bribery), the civil servant is at risk of criminal prosecution independent of the disciplinary one. The proper positioning from the very first stage is critical, as the conclusions report carries significant weight in the subsequent phases.
2. What rights of defence does the civil servant under examination have?
The civil servant is mandatorily summoned for examination prior to the completion of the EDE — failure to summon constitutes a violation of an essential procedural form and entails nullity. He has the right to propose witnesses in writing, with the person conducting the EDE being obliged to examine at least five of them, otherwise there is again a violation of an essential procedural form.
In addition, he may seek the recusal of the person conducting the inquiry, provided that specific grounds for bias are present, submit a memorandum setting out his positions, produce documents, and request the conduct of an on-site inspection or an expert opinion. These rights serve the principle of impartiality (Article 7 of the Code of Administrative Procedure (KDD)).
3. How long does the EDE procedure last?
The EDE is, as a rule, concluded within two months from the notification of the assignment decision to the civil servant conducting it. The latter may request, by means of a fully reasoned application, an extension of up to one further month. In urgent cases of public interest, the body issuing the order may also set a shorter deadline.
After the submission of the conclusions, an interval follows during which the competent disciplinary bodies examine whether disciplinary prosecution will be initiated. Overall, from the commencement of the EDE until the final outcome (filing or referral to a disciplinary council), the procedure may last several months.
4. Does the civil servant have access to the materials of the EDE file?
During the conduct of the EDE, the principle of confidentiality applies, and the civil servant does not have free access to the materials of the file. Confidentiality is also maintained after the submission of the conclusions report, for as long as the disciplinary bodies are examining whether to initiate prosecution (Legal Council of the State Opinions 501/2007, 451/2012, 454/2012).
If disciplinary prosecution is initiated, the person under prosecution acquires full access to the materials prior to submitting his defence statement (Article 135 para. 3 of the Civil Servants’ Code). If, on the contrary, the case is placed in the archive, the file becomes accessible to anyone establishing reasonable interest under the conditions of Article 5 of the Code of Administrative Procedure (KDD).
5. What does the civil servant risk in terms of his service status?
The EDE in itself does not entail service consequences nor does it interrupt the limitation period of the offence under examination. If, however, it leads to the initiation of disciplinary prosecution for a serious offence among those of para. 2 of Article 109 of the Civil Servants’ Code, an issue of suspension or interruption of the exercise of duties may arise, while the final decision of the disciplinary council may go as far as permanent dismissal.
When the EDE is conducted following an order by the Governor of the National Transparency Authority and an offence is established, the initiation of disciplinary prosecution constitutes a bound action within ten days — therefore the civil servant has a limited margin of reaction after the issuance of the conclusions.
6. What is the role of the lawyer in an EDE?
The lawyer studies the materials available to the civil servant, prepares the deposition and the memorandum, formulates objections concerning violations of essential procedural forms (failure to summon for examination, failure to examine proposed witnesses, grounds for recusal of the person conducting the inquiry), and selects the five witnesses strategically. He drafts an application for recusal where specific grounds for bias exist, and makes use of the case-law of the Council of State (StE) and of the Administrative Courts of Appeals on procedural defects.
At a subsequent stage, if disciplinary prosecution is initiated, he undertakes the drafting of the defence statement and representation before the disciplinary council, as well as the petition before the Council of State (StE) against any decision that may be issued.