FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52848/99
by Ioannis PAPADOPOULOS
against Greece
The European Court of Human Rights, sitting on 29 November 2001 as a Chamber composed of
MrsF. Tulkens, President,
MrC.L. Rozakis,
MrG. Bonello,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 20 August 1999 and registered on 23 November 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ioannis Papadopoulos, is a Greek national, who was born in 1947 and lives in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was working at the hospital “Aghios Savvas” in Athens as a nurse (νοσηλευτής). On 4 July 1996 he sought the intervention of the prosecutor at the Athens Criminal Court (Εισαγγελέας Πλημμελειοδικών), complaining about the sanitary conditions at the hospital’s operation block. His complaint was filed as being unsubstantiated.
1. Disciplinary proceedings against the applicant
On 14 November 1996, the Council of Directors (Διοικητικό Συμβούλιο) of the hospital instituted disciplinary proceedings against the applicant for misbehaviour and referred the matter to the Special Service Council (Ειδικό Υπηρεσιακό Συμβούλιο) and also to the Disciplinary Council (Πειθαρχικό Συμβούλιο).
On 21 November 1996, the Special Service Council decided, without previously hearing the applicant, to suspend him for a year on the ground that disciplinary proceedings were pending against him. On 3 December 1996 the president of the Council of Directors confirmed the above-mentioned decision.
On 14 April 1997, the applicant challenged those decisions before the Athens Administrative Court of Appeal.
On 9 December 1997 the Special Service Council decided to prolong the applicant’s suspension. On 10 December 1997 the president of the Council of Directors confirmed that decision.
On 30 January 1998 the applicant lodged an appeal with the Athens Administrative Court of Appeal against the decisions prolonging his suspension.
On 25 September 1998 the Disciplinary Council held a hearing. The applicant raised a number of objections. On 30 September 1998 he was invited to defend himself in writing.
On 5 October 1998, during the hearing before the Administrative Court of Appeal, the applicant’s lawyer withdrew his client’s action of 14 April 1997. The applicant claims that his lawyer acted on his own initiative. On 29 October 1998 the Court discontinued the proceedings regarding this action.
On 23 December 1998 the Special Service Council decided to prolong the applicant’s suspension for one more year on the ground that the disciplinary proceedings against him were still pending. On 12 January 1999 the president of the Council of Directors confirmed the above-mentioned decision. The applicant did not appeal against those decisions.
On 16 June 1999 the Athens Administrative Court of Appeal quashed the decision of the president of the Council of Directors to suspend the applicant, on the ground that the latter had not been previously heard, and referred the case to the administration for further consideration (decision no. 1720/1999).
On 26 October 1999 Special Service Council held a meeting in order to hear the applicant. However, the latter did not appear. On 4 January 2000 the Special Service Council decided to prolong the applicant’s suspension for one more year. On 27 January 2000 the president of the Council of Directors confirmed the above-mentioned decision.
On 27 November 2000 the applicant was invited to defend himself in writing but failed to do so.
On 14 December 2000 the applicant was dismissed for insubordination and improper conduct. The applicant had been invited to attend the hearing of the Special Service Council but did not appear.
2. Criminal proceedings against the applicant
On 16 July 1998 the applicant was arrested in flagrante delicto for entering without prior authorisation to the operation block of the hospital where he was working. He was placed in detention for one day.
On 17 July 1998 the Athens First Instance Criminal Court found the applicant guilty and sentenced him to six months imprisonment. The same day the applicant appealed against this decision. His appeal has suspensive effect.
The hearing is scheduled for 16 September 2002.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that he has been subjected to degrading treatment. He also complains of the conditions of his detention.
2. The applicant complains under Article 5 of the Convention that his detention was unlawful and that there is still a risk that his right to liberty and security will be violated again.
3. The applicant complains under Article 6 § 1 of the Convention about the fairness of the disciplinary and the criminal proceedings against him.
4. The applicant further complains under the same provision of the length of both the disciplinary and the criminal proceedings against him.
5. The applicant alleges that his right to freedom of expression under Article 10 § 1 of the Convention was violated.
6. The applicant lastly complains under Article 14 of the Convention that he was a victim of discriminatory treatment on behalf of the hospital authorities.
THE LAW
1. The applicant complains that he has been subjected to psychological torture. He affirms that his dismissal and the way the disciplinary and the criminal proceedings against him were conducted by the competent authorities amounted to inhuman and degrading treatment. He also complains of the conditions of his detention. He invokes Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court accepts that the applicant might have felt emotional distress but considers that the circumstances complained of did not attain the threshold of inhuman or degrading treatment within the meaning of Article 3 of the Convention as established in the case-law of the Convention organs (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV).
As regards the conditions of the applicant’s detention, the Court notes that the latter has not brought this complaint before the competent domestic courts ; therefore, he has not complied with the obligation under Article 35 § 1 of the Convention to exhaust domestic remedies before applying to the Court.
It follows that this complaint must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that his detention was unlawful and that there is still a risk that his right to liberty and security will be violated again. He claims that he is not protected against arbitrary interference with his liberty and that the State authorities are able, at any moment, to plan his arrest. He invokes Article 5 of the Convention, which reads:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
....
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”
The Court finds that the applicant’s detention following his arrest was “lawful” and occurred according to a “procedure prescribed by law” as required by Article 5 § 1. As regards the applicant’s allegation that he is not protected against a future interference with his liberty, the Court recalls that it is only in exceptional circumstances that an applicant may claim to be a victim of a violation of the Convention owing to the risk of a future violation (No. 38192/97, dec. 1.7.1998, DR 94 p. 124). In the instant case, the Court notes that the applicant has not submitted any evidence in support of his allegations.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complains about the fairness of the disciplinary and the criminal proceedings against him. He also alleges that the termination of the first trial before the Administrative Court of Appeal following the unauthorised withdrawal of his lawyer was incompatible with the notion of a fair trial. He relies on Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... fair hearing within a reasonable time by [a] ... tribunal ...”
1. As regards the disciplinary proceedings
The Government denied the applicability of Article 6 in the applicant’s case, observing that the proceedings before the disciplinary bodies were not directly decisive for the applicant’s civil rights and did not involve the determination of any criminal charge.
The Convention organs have constantly held that disciplinary proceedings against an employee relating to his conduct in his functions are not concerned with the determination of civil rights and obligations, since it is incontestable that the decision on dismissal rests ultimately with the employer himself (see, among other authorities, N° 8974/80, dec. 8.10.1980, DR 24 p. 187).
It is true that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to "contestations” (disputes) over civil rights within the meaning of Article 6 § 1 (see, among other authorities, the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1085, § 45).
However, the Court notes that in the instant case the applicant was solely dismissed from his post in the hospital “Aghios Savvas”. It has not been established that the disciplinary sanction imposed on the applicant deprived him of his right to continue to exercise his profession in another hospital of the public sector or in a private clinic. Therefore, the Court considers that the disciplinary proceedings complained of did not give rise to a dispute over the applicant’s civil rights. Moreover, there is no doubt that the proceedings before the disciplinary bodies did not involve the determination of a criminal charge against the applicant.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
As regards the applicant’s complaint relating to the first set of proceedings before the Athens Administrative Court of Appeal
Even assuming that this complaint was lodged within the six-month period provided for in Article 35 § 1 of the Convention, the Court notes that the applicant has failed to substantiate his allegations.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As regards the criminal proceedings
The Court recalls that the question whether a trial is in conformity with the requirements of Article 6 § 1 must be considered on the basis of the examination of the proceedings as a whole, that is to say once they have been concluded. However, it is not impossible that a particular procedural element could be so decisive that the fairness of the proceedings could be determined at an earlier stage (No. 18892/91, dec. 3.12.1993, DR 76, p. 51).
The Court, noting that the criminal proceedings in question have not yet been completed, considers that the applicant’s submissions do not disclose any such circumstances.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant further complains under Article 6 § 1 of the Convention of the length of both the disciplinary and the criminal proceedings which were instituted against him.
1. As regards the disciplinary proceedings
The Court has held that Article 6 § 1 of the Convention did not apply to the disciplinary proceedings instituted against the applicant.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. As regards the criminal proceedings
The Government affirm that the length of these proceedings is not open to criticism.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.
5. The applicant further complains that his right to freedom of expression was violated insofar as the disciplinary and criminal proceedings were instituted against him in order to discourage and punish him for complaining about the sanitary conditions at the hospital where he was working. He invokes Article 10 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
As regards the disciplinary proceedings, the Court notes that at no time did the applicant rely on Article 10 of the Convention, or on arguments to the same effect based on domestic law, before the disciplinary bodies dealing with his case. Therefore, he did not draw their attention to the problem he has subsequently submitted to the Court and thus failed to exhaust domestic remedies in this respect (see, among other authorities, the Ahmet Sadik v. Greece judgment of 15 November 1996, Reports of Judgements and Decisions 1996–V, p. 1654, §§ 31–33).
As regards the criminal proceedings, the Court notes that they are still pending in appeal. Therefore, the applicant’s complaint in this respect is premature.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
6. Lastly, the applicant complains that he was a victim of discriminatory treatment on behalf of the hospital authorities because he had lived and studied in Romania. He invokes Article 14 of the Convention, which reads:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
According to the Court’s case-law, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions –and to this extent it is autonomous–, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, among many other authorities, the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).
In the present case, the Court has held that the disciplinary proceedings instituted by the hospital authorities against the applicant do not fall within the ambit of Article 6 of the Convention. Therefore, Article 14 is also inapplicable.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint about the length of the criminal proceedings;
Declares inadmissible the remainder of the application.
Erik FriberghFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy