AS TO THE ADMISSIBILITY OF
Application No. 12945/87
by Constantinos HATJIANASTASIOU
against Greece
The European Commission of Human Rights sitting in private
on 4 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 December 1986
by Constantinos Hatjianastasiou against Greece and registered
on 2 May 1987 under file No. 12945/87;
Having regard to the written observations on the admissibility
and merits of the application submitted by the Government on
12 December 1989;
Having regard to the applicant's observations in reply
submitted on 22 January 1990;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows:
The applicant is a Greek citizen, born in 1948. He is a Greek
Air Force officer residing in Athens.
In 1982 the applicant submitted to the Air Force a study
concerning a guided missile which was written in his capacity as an
Air Force officer. On January 1983 he presented to a private company
another technical study on guided missiles which he had carried out.
On May 1984 the applicant was charged with disclosing military
secrets (Article 97 of the Military Criminal Code - Stratiotikos
Poinikos Kodix) for having communicated to the private company elements
of the Air Force study.
On 22 October 1984, the applicant was found guilty by judgment
of the Permanent Air Force Court of Athens (Diarkes Stratodikeio
Aeroporias Athinon). He was sentenced to two years and six months'
imprisonment.
The applicant appealed to the Military Court of Review
(Anatheoritiko Dikastirio), which appointed two experts to determine
whether elements in the Air Force study had been included in the study
addressed to the private company.
On 26 September 1985, the experts submitted their opinion,
concluding that although the two studies followed different methods,
an inevitable transfer of information occurred.
On 22 November 1985, the Military Court of Review held a
hearing during which numerous witnesses were heard, including the two
experts. On the same day this court gave its judgment in open
court in the presence of the applicant. According to the minutes of
the proceedings the decision given in open court reads as follows:
"Having regard to Articles 372, 373 § 1 and 434 of the
Military Criminal Code and Articles 535 §1 and 597
of the Code of Criminal Procedure,
The Court by 4 votes to 1 finds the accused guilty of
disclosing military secrets which offence was
committed in Attica between October 1982 and March 1983.
The Court finds by unanimous vote the above-mentioned
military secrets were of minor importance.
The Court rejects by 3 votes to 2 the defence request to apply
Article 31 para. 2 of the Criminal Code (exculpation in case
of error).
The Court finds by unanimous vote the extenuating
circumstances referred to in Article 84 para. 2 (a) of the
Criminal Code in favour of the accused.
The Court sentences the accused to five months' imprisonment
and orders the accused to pay the costs of the proceedings.
The Court orders that the period of the detention to date of 4
months and 14 days shall be deducted from the sentence and
sets the sentence of the term of imprisonment at 16 days.
The Court orders that the rest of the term of imprisonment be
suspended for three years."
On 26 November 1985, the applicant appealed to the Court of
Cassation (Areios Pagos) against the above judgment, pursuant to
Article 425 para. 1 of the Military Criminal Code, which reads as
follows:
"An appeal to the Court of Cassation (anairesi) may be
brought within a five day time-limit starting on the
date of pronouncement of the decision or, in case the
convicted person was not present or not represented,
on the date of notification of the decision."
The applicant stated that he appealed on the ground of
"erroneous application and interpretation of the provisions under
which he was convicted, i.e. Article 97 para. 2 of the Military
Criminal Code".
On 10 January 1986 the applicant received a copy of the
Military Court's decision, including the minutes of the proceedings
and the "points of law" (zitimata) on which the decision was based.
On 11 April 1986, the Court of Cassation held a hearing on the
case. In his pleadings the applicant requested the Court to declare
the appeal admissible and outlined his grounds of appeal.
On 14 April 1986, the applicant submitted a memorandum
setting forth the grounds of appeal. He invoked inter alia that
within the five day time-limit he had in order to appeal to the Court
of Cassation a further substantiation of his appeal grounds was
impossible, since by that time he had not received the text of the
decision and it was impossible for him to determine on what elements
the Military Court of Review had based its decision.
On 18 June 1986, the Court of Cassation declared the
applicant's appeal inadmissible. The Court considered the applicant's
grounds of appeal i.e. an "erroneous application and interpretation of
the provisions under which he was convicted, i.e. Article 97 para. 2
of the Military Criminal Code". It found that "this exclusive ground,
formulated as above, (was) vague because no specific and clear defects
(had been) imputed to the challenged judgment" and that therefore the
appeal should be declared inadmissible. The Court did not consider
the applicant's memorandum of 14 April 1986.
COMPLAINTS
1. The applicant complains that he did not have a fair hearing
before the courts which dealt with his case. He submits that the
military court decisions did not give any reasons for his conviction
and that the Court of Cassation did not consider the memorandum
submitted on 14 April 1986. He states that he could not
substantiate his grounds of appeal within the five day time-limit
provided by Article 425 para. 1 of the Military Criminal Code, since
by that time he had not received the full text of the judgment of the
Military Court of Review.
He alleges a breach of Article 6 of the Convention.
2. The applicant submits moreover that his conviction by the
Military Court of Review constitutes an interference with his right to
freedom of expression, since he was sentenced for having communicated
general scientific information contained in scientific literature,
which is freely available.
He alleges a breach of Article 10 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 December 1986 and
registered on 2 May 1987.
On 6 July 1989 the Commission decided that the application
should be brought to the notice of the respondent Government and that
they be invited to submit written observations on the admissibility
and merits of the application.
The Government submitted their written observations on
12 December 1989 after two extensions of the fixed time limit for the
submission had been granted by the President of the Commission. The
applicant submitted his observations in reply on 22 January 1990.
THE LAW
1. The applicant complains that he did not have a fair hearing
before the military courts which dealt with his case. He submits that
neither the Permanent Air Force Court's decision nor the Military Court
of Review's judgment contained any reasons for his conviction. He
also complains that the Court of Cassation rejected his appeal without
taking into consideration the memorandum he submitted on 14 April
1986. In addition, the applicant contends that it was impossible for
him to substantiate his grounds of appeal within the five days'
time-limit provided by Article 425 para. 1 of the Military Criminal
Code, since he did not know the reasons for his conviction. The
applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant also complains that his conviction by the
military courts constitutes an unjustified interference with his right
to freedom of expression guaranteed under Article 10 (Art. 10) of the
Convention. He submits that he was sentenced for having communicated
general scientific information contained in scientific literature
which is freely available.
The Government submit that the application is inadmissible.
They refer to Article 26 (Art. 26) of the Convention which provides
that "the Commission may only deal with the matter ... within a period
of six months from the date on which the final decision was taken".
The Government argue that a judgment of the Court of Cassation cannot
be regarded as a "final decision" within the meaning of Article 26
(Art. 26). A cassation appeal is an extraordinary remedy. The Court
of Cassation does not examine the facts of the case but only the
points of law. Moreover, any judgment by that Court is "irrevocable"
and cannot therefore be challenged. The Government conclude that to
the extent that the complaint is directed against the judgment of the
Military Court of Review it is out of time since the period between
the date on which this judgment was given, i.e. 22 November 1985, and
the introduction of the application exceeded six months.
The Commission has examined the Government's submission that
the application was introduced out of time.
It recalls in this respect its constant case-law according to
which the term "final decision" in Article 26 (Art. 26) must be
considered as referring to the final decision resulting from the
exhaustion of all domestic remedies according to the generally
recognised rules of international law. The requirements contained in
Article 26 (Art. 26) concerning the exhaustion of domestic remedies
and the six months period are closely interrelated, since not only are
they combined in the same Article, but they are also expressed in a
single sentence whose grammatical construction implies such
correlation. Moreover, the remedies which are to be taken into
account in applying the general rules of international law concerning
the exhaustion of domestic remedies are those which are capable of
providing an effective and sufficient means of redressing the wrongs
which are the subject of the international claim. The basis of the
rule of exhaustion of domestic remedies is that before proceedings are
brought in an international court, the State made answerable must have
an opportunity of redressing the alleged damage by domestic means
within the framework of its own legal system. Moreover the term "all
remedies" in the text of this provision implies that all remedies at
various levels, such as appeal to a court of appeal, further appeal to
a Supreme Court and, possibly, a constitutional appeal should be
pursued (cf. for example No. 214/56, Dec. 9.6.58 Yearbook I p. 412,
No. 712/60, Yearbook IV p. 384, No. 2686/65, Yearbook IX p. 494, No.
5874/72 Dec. 29.5.74, Coll. 46 p. 146, No. 5964/72, Dec. 29.9.75, D.R.
3 p. 57).
In the light of the above, the Commission finds that the
applicant had to appeal to the Court of Cassation in order to
comply with the requirement as to the exhaustion of the domestic
remedies since such a remedy could in principle relieve the
situation complained of, i.e. his conviction by the military courts.
It follows that in the present case the judgment of the Court of
Cassation must be regarded as the "final decision" within the meaning
of Article 26 (Art. 26) of the Convention. This judgment was given on
18 June 1986. The application was introduced on 17 December 1986,
that is less than six months after the above decision. Consequently
the six months rule set out in Article 26 (Art. 26) has been observed
in the present case.
2. With regard to the merits of the applicant's complaint under
Article 6 (Art. 6), the Government submit that the complaint is manifestly
ill-founded. They contend that Article 6 para. 1 (Art. 6-1) of the
Convention does not require that a court decision be reasoned.
Insofar as the five days' time-limit provided by Article 425 para. 1
of the Military Criminal Code is at issue, they submit that this
time limit is not contrary to Article 6 para. 3 (b) (Art. 6-3-b) of
the Convention and note that in any event, pursuant to Article 510 of
the Criminal Procedure Code, the applicant could submit additional
appeal grounds after this time-limit had expired.
The Commission recalls that under specific circumstances the
absence of reasons in a court decision might raise an issue as to the
fairness of the procedure which is guaranteed by paragraph 1 of
Article 6 (Art. 6) (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).
Moreover, a State which does institute courts of appeal or
cassation is required to ensure that persons amenable to the law shall
enjoy when before these courts the fundamental guarantees contained in
Article 6 (Art. 6) (Eur. Court H.R. Delcourt judgment of 17.1.1970,
Series A no. 11, p. 14, para. 25).
Finally, the Commission recalls that Article 6 para. 3 (b)
(Art. 6-3-b) guarantees to everyone charged with a criminal offence
the right to have adequate time and facilities for the preparation of
his defence and that this guarantee is a particular aspect of the
notion of a fair trial (cf. mutatis mutandis Eur. Court H.R.,
Bönisch judgment of 6.5.85, Series A no. 92, pp. 14-15, para. 29).
In the present case the applicant complains of the lack of
reasons in the military court judgments and that the time-limit
provided for the introduction of an appeal to the Court of Cassation
did not permit him to exercise an effective defence. In the light of
the above-mentioned jurisprudence of the Convention organs, the
Commission finds that these complaints raise complex issues of law and
fact under Article 6 paras. 1 (Art. 6-1) and 3 (b) (Art. 6-3-b) of the
Convention warranting an examination on the merits. It follows that
this part of the application cannot be considered manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention and it must therefore be declared admissible, no
other ground for declaring it inadmissible having been established.
3. With regard to the applicant's complaint under Article 10,
(Art. 10) the Government contend that freedom of expression does not
embody a right to communicate information with the aim of financial
reward. Moreover, having regard to the limitations expressly provided
under para. 2 of Article 10 (Art. 10-2), the Contracting States have a
discretionary power to limit by laws the exercise of the above right
and to sanction any overstepping of the limitations imposed.
The Commission recalls that the right to freedom of expression
is one of the essential foundations of a democratic society (cf.
Eur. Court H.R., Handyside judgment of 7.12 76, Series A no. 24, p.
23, para. 49). Any interference in the exercise of this right if it is
to be compatible with the requirements of paragraph 2 of Article 10
(Art. 10-2) must be prescribed by law, pursue one of the legitimate
aims set out in this paragraph and be necessary in a democratic
society for achieving the aim or aims pursued (cf. Eur. Court H.R.,
Müller and others judgment of 24.5.88, Series A, no. 133, p. 19, para.
28).
The Commission considers that this part of the application
raises complex issues of fact and law which call for an examination of
the merits. It cannot therefore be regarded as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and must be declared admissible, no other ground for
declaring it inadmissible having been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy