AS TO THE ADMISSIBILITY OF
Application No. 19937/92
by Stamatios STAMATIADES
against Greece
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 November 1990
by Stamatios STAMATIADES against Greece and registered on 4 May 1992
under file No. 19937/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1946 and a resident of
Poros. He is a high school teacher by profession.
The facts of the case as they have been submitted by the
applicant may be summarised as follows:
a. Facts relating to administrative proceedings regarding the
manner in which he carried out his professional duties.
On 13 November 1987, by decision of the Piraeus Regional Council
for Secondary Education, the applicant was suspended from his post in
Galata high school. This decision was confirmed on 23 November 1987 by
the Director of secondary education of the Piraeus Prefecture. On
19 February 1988, by decision of the Piraeus Regional Council of
Directors of secondary education, the applicant was notified of his
transfer, allegedly as a disciplinary measure, to Nikaia High School.
This decision was confirmed on 28 March 1988 by the Piraeus Prefecture.
On 6 May 1988 the Piraeus Regional Council of Directors of secondary
education suspended his tenure and on 15 July 1988 decided to prolong
his suspension, confirmed on 22 July 1988 by the Piraeus Prefecture.
On 30 August 1988, by decision of the Regional Council of Directors of
secondary education, the applicant was posted to Nikaia High School
where he did not report for duty. As a result of this, on
17 October 1988, the Minister of Education served him with a
disciplinary note. On 18 May 1989 the Director of the Piraeus
Prefecture brought the case before the disciplinary board of the
Regional Council of Officers for secondary education. On 12 June 1991
the Minister of National Education issued a decree calling for the
execution of the decision of 17 October 1988 concerning disciplinary
measures against the applicant.
The disciplinary proceedings instituted against the applicant for
his failure to report for duty at the Nikaia High School were
terminated on 27 May 1993 when the Council of Directors of Secondary
Education imposed on him the penalty of definite dismissal.
b. Facts relating to proceedings before the administrative
courts.
On 6 December 1987 the applicant filed before the Council of
State a plea of nullity against his suspension from duties of
13 November 1987. The Council of State, by judgment of 17 October 1989,
found that it had no jurisdiction and decided to refer the case to the
Administrative Court of Appeal of Piraeus.
On 6 April 1988 the applicant filed before the Council of State
a plea of nullity against his transfer to Nikaia High School of
19 February 1988. The Council of State, by judgment of 10 January 1991,
rejected the plea on the ground that the applicant had failed to pay
the court fees.
On 29 December 1988 he filed a second plea of nullity before the
Council of State against his transfer of 19 February 1988. The Council
of State, by judgment of 10 April 1991, rejected the applicant's plea
as inadmissible on the ground that it had been filed after the six
months time-limit.
On 19 November 1990 and on 23 January 1991 the applicant
submitted explanatory memorials before the Administrative Court of
Appeal of Piraeus to which his plea of nullity of 6 December 1987 had
been transmitted from the Council of State. The Administrative Court
of Appeal, by judgment of 29 March 1991 accepted the plea of nullity
and annulled the suspension of 13 November 1987.
On 9 December 1991 the applicant filed a plea of nullity with the
Council of State against the transfer of 19 February 1988, the note of
17 October 1988 and the decree of the Minister of Education of
12 June 1991. The applicant submits that the court has not examined his
case on the merits.
On 30 August 1991 the applicant filed a new plea of nullity with
the Administrative Court of Appeal of Piraeus against the same acts.
On 5 September 1991 the applicant filed a plea for a stay of
execution with the Administrative Court of Appeal of Piraeus against
the transfer order of 19 February 1988 while his plea of nullity of
30 August 1991 was still pending. The Administrative Court of Appeal
by its judgment of 26 September 1991 rejected the application on the
ground that the applicant's pleas of nullity against the contested
order had been rejected as inadmissible by the Council of State in its
two judgments of 10 January and 10 April 1991.
On 20 July 1993 the applicant lodged an action for the annulment
of the decision of 27 May 1993 of the Council of Directors of Secondary
Education dismissing him from the civil service. On 27 August 1993 the
applicant applied for the suspension of the enforcement of the same
decision. His application was refused by the Administrative Court of
Piraeus (No. 8/93).
c. Facts relating to the criminal proceedings.
On 13 June 1989 the applicant was arrested, allegedly with
violence, by the police at the Galata High School premises for breach
of the peace and was subsequently detained. On 2 October 1989 the three
member first instance Criminal Court of Piraeus sentenced him to four
months imprisonment (No. 6097) for disrupting public order. The
applicant appealed against this judgment. On 30 June 1992 the three
member Piraeus Criminal Court of Appeal reduced the applicant's
sentence to 30 days imprisonment convertible into a fine.
On 1 September 1989 he was arrested and allegedly handcuffed by
the police at Galata High School. On 20 November 1989 the three member
first instance Criminal Court (No. 7232) sentenced the applicant to
seven months imprisonment for disrupting public order because he had
entered the premises of the High School. The applicant appealed against
this judgment. On 15 June 1993 the three member Criminal Court of
Appeal of Piraeus reduced the applicant's sentence to 40 days
imprisonment convertible into a fine.
On 4 September 1989 the applicant was arrested again by the
police at Galata High School. On 5 September 1989 the three member
first instance Criminal Court of Piraeus (No. 5501) found that the
applicant was not guilty of disrupting public order.
COMPLAINTS
1. The applicant complains that he was not granted the opportunity
of having his witnesses heard with regard to the administrative acts
which led to his dismissal. He invokes Article 6 para. 3 (d) of the
Convention.
2. He complains that he was arrested and detained without being
informed of the reasons for his arrest and the charges made against
him. He also complains that he did not receive compensation after
having being acquitted of the offence of breaching the peace. He
invokes Article 5 paras. 2 and 5 of the Convention. He also alleges
that during his arrest and detention he was subjected to inhuman and
degrading treatment. He invokes Article 3 of the Convention.
3. He complains that he has been convicted for disrupting public
order although he was not given any grounds for the charges against
him. Furthermore he alleges that it was doubtful that his presence in
the High School of Galata provoked any breach of the peace. He also
complains that he was convicted of acts that he did not commit and
which did not constitute criminal offences. He invokes Article 6 paras.
2 and 3 (a) and Article 7 of the Convention.
4. Moreover he complains about the length of the proceedings. He
invokes Article 6 para. 1 of the Convention.
5. He alleges that his convictions were based on his political
opinions and ideas about democracy. He invokes Article 9 of the
Convention.
6. He complains that his criminal and disciplinary prosecutions have
deprived him of his freedom of expression. He invokes Article 10 of the
Convention.
7. He alleges that his dismissal and convictions were motivated by
political considerations and therefore he has been discriminated
against. He invokes Article 14 of the Convention.
9. He complains that he has not had access to an effective remedy.
He invokes Article 13 of the Convention.
THE LAW
1. The applicant complains that he was not granted the opportunity
of having his witnesses heard with regard to the administrative acts
which led to his dismissal. He invokes Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention which reads as follows:
"3. Everyone charged with a criminal offence has the following
minimum rights:
............
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him".
The Commission notes that the applicant's complaint concerns
disciplinary and administrative proceedings relating to his
professional duties. The Commission recalls that disciplinary
proceedings do not ordinarily concern a dispute over "civil rights and
obligations" (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A no. 43, p. 19, para. 42) and that
disciplinary proceedings cannot as such be characterised as "criminal"
(see Eur. Court H.R., Engel judgment of 8 June 1976, Series A no. 22,
pp. 33-36, paras. 80-85). There are not in the present case, according
to the material submitted by the applicant through his application, any
circumstances leading to the conclusion that a criminal charge was at
issue.
It follows that this part of the application is incompatible
ratione materiae with Article 6 (Art. 6) of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant complains that he was arrested and detained without
being informed of the reasons for his arrest and the charges against
him. He also complains that he did not receive compensation after
having being acquitted of the offence of breach of the peace. He
invokes Article 5 paras. 2 and 5 (Art. 5-2, 5-5) of the Convention
which read as follows:
"2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
....
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
He also alleges that during his arrest and detention the police
subjected him to inhuman and degrading treatment. He invokes Article
3 (Art. 3) of the Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission is not, however, called upon to decide whether
these allegations disclose any appearance of a violation of the above
provisions. Under Article 26 (Art. 26) of the Convention, "the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law".
The Commission notes that these complaints have not been raised
before the criminal courts and that the applicant did not appeal in
cassation. It follows that the condition as to the exhaustion of
domestic remedies is not satisfied.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicant complains that he has been convicted of a breach
of the peace although he was not informed of the grounds for the
charges against him. Furthermore he alleges that his mere presence in
the premises of Galata High School was not enough to constitute the
offence of breach of the peace. He also complains that he was convicted
for acts that he did not commit and which did not constitute criminal
offences. He invokes Article 6 paras. 2 and 3 (a) (Art. 6-2, 6-3-a) of
the Convention which read as follows:
"2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
rights:
(a) to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against
him; . . . ."
The Commission notes that Article 6 (Art. 6) of the Convention
is applicable to the criminal proceedings against the applicant.
The Commission is not, however, called upon to decide whether the
facts alleged by the applicant disclose any appearance of a violation
of that provision, as the applicant has failed to raise in substance
this complaint before the criminal courts which convicted him of breach
of the peace and as he did not lodge an appeal in cassation against the
judgments of those courts. It follows that the applicant has not
complied with the requirement as to the exhaustion of domestic
remedies.
This part of the application must, therefore, be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
4. The Commission finds unsubstantiated the applicant's allegations
that his convictions and dismissal were a result of his political
opinions, deprived him of freedom of expression and were motivated by
political considerations contrary to Articles 7, 9, 10, 13 and 14
(Art. 7, 9, 10, 13, 14) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, the applicant complains about the length of proceedings.
He invokes Article 6 para. 1 (Art. 6-1) of the Convention which reads
as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him everyone is entitled to a fair
and public hearing within a reasonable time . . ."
The Commission recalls that Article 6 (Art. 6) is not applicable
to proceedings which do not relate to the determination of civil rights
or criminal charges. It follows that the applicant's complaints about
the length of the administrative procedures and the ensuing court
proceedings are incompatible ratione materiae with Article 6 (Art. 6)
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
The Commission finds that Article 6 (Art. 6) of the Convention
is applicable only to the applicant's complaint concerning the length
of proceedings before the criminal courts. The Commission considers
that it cannot, on the basis of the material before it, determine the
admissibility of the complaint relating to the length of those
proceedings and that it is therefore necessary, in accordance with Rule
48 para. 2 (b) of the Rules of Procedure, to communicate the
applicant's complaint as regards the length of the criminal proceedings
to the respondent Government.
For these reasons, the Commission, unanimously
DECIDES TO ADJOURN its examination of the complaint
concerning the length of the proceedings before the
criminal courts;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy