THE FACTS
The facts of the case as submitted by the applicant may be summarised
as follows:
The applicant is a Danish citizen, born in 1906 and resident at B. in
Spain. He is a retired Lieutenant-Colonel and a civil engineer.
He has previously, together with his wife, lodged an application (No.
3504/68) which was declared inadmissible by the Commission on 16 May
1969 and related to his wife's dismissal from her position as a
midwife.
The present application concerns the contents of a certificate of
conduct issued by the Danish Ministry of Defence. According to the
applicant the Ministry keeps a secret file on each individual officer
which includes annual statements by the competent superior as to the
officer's suitability for promotion. If fault is found with an officer,
it is the duty of his superior to warn him and to afford him an
opportunity to correct this. No disparaging remarks should be recorded
in the annual statement without informing the officer concerned. An
officer is at any time entitled to have a certificate of conduct issued
which must be founded on the contents of the reports on his service.
The applicant states that in 1936 he was appointed a principal officer
(fuldmaegtig) at the Building Office of the Ministry. He then found
that the accounting system of the office was inadequate. After having
passed university exams in public accounting and book-keeping he
altered this system. The applicant also discovered other inadequacies
in the army building service. He claims that a report on these
conditions which he submitted was suppressed by Major-General T., a
senior official at the Ministry.
When the applicant left the Office in 1942, the Ministry issued a
certificate of conduct according to which he had shown considerable
administrative ability and accomplished his tasks in a thorough and
conscientious manner.
In 1946, the applicant was appointed Head of the Building Office, a
position he held until the following year. During this period the
applicant criticised certain conditions in the army building service
and submitted a proposal for the re-organisation of the service. This
report was also, however, allegedly suppressed by General T. After he
had left the office the applicant drew the attention of the Minister
of Defence to the conditions of the building service, but due to the
interference of T. no action was taken. In November 1946, T. made a
statement as to the applicant's fitness for promotion in which he
expressed a critical opinion as to the applicant's economic judgment.
This statement, was, however, kept secret from the applicant until
1961.
The applicant states that certain events in 1948 led to an
investigation of the building service which confirmed the correctness
of his criticism and the service was re-organised accordingly. The
result of the investigation was not made public, however, in order to
protect T. and other senior officers.
In 1954 the applicant received a certificate of conduct according to
which his service had been very satisfactory. The following year he was
made Head of the Army School for Signal Technicians where he was
responsible, inter alia, for the economic affairs of the school and its
valuable equipment. For a period of six months he was also in charge
of the signal equipment of Seeland with a yearly turnover of ten
million Danish Crowns and a large staff. From 1960 until his retirement
in 1966, the applicant was attached to the Staff of the Army Signal
Office as head of the army's crypto-security service and of the
establishment and maintenance of the army's permanent signal system.
No objection was ever made against his handling of economic matters in
any of these positions.
In 1961 the applicant requested a certificate of conduct from the
Ministry for the purpose of applying for the position of Director of
the Technological Institute of Jutland.
On 7 December 1961, the Ministry issued a certificate which contained
the following statement as regards the applicant's previous service as
Head of the Building Office:
"As Head of the Building Office .... Lieutenant-Colonel X has
consistently carried out his duties in a competent and conscientious
manner, but he appears, to some extent, to have shown an insufficient
sense of the economic side of the administration and hence a lack of
general understanding of economic matters of the office in this field."
The applicant objected to the terms of this statement and asked for a
revision of the certificate. This request was, however, refused by the
Ministry on .. March 1962. In 1967, the applicant applied to the Army
Headquarters for a fresh evaluation of his service. On .. July 1968 the
Army Headquarters informed the applicant that it would not alter the
statements made in the previous certificate of conduct. This decision
was subsequently upheld by the Ministry of Defence on .. March 1969.
By letter of .. December 1968 the applicant laid criminal charges
against General T. and two other senior officials for having made false
statements about him and thereby having caused him loss in earnings.
According to the applicant, the Public Prosecutor has not taken any
action or even replied to his letter.
The applicant lists a number of grounds on which he claims that the
statement as to his economic judgment contained in the certificate of
conduct is invalid for formal reasons and for reasons of substance. He
refers to a number of positions in Denmark and abroad which he has
allegedly been prevented from obtaining as a result of the certificate.
The applicant alleges a violation of his right to liberty and security
of person as guaranteed under Article 5 of the Convention. He argues,
inter alia, that this provision imposes an obligation of a High
Contracting Party to observe all its domestic laws, in its relations
with its citizens. The applicant claims in this connection that the
Danish Government has violated the following provisions of Danish law,
and thereby Article 5 of the Convention:
- the service regulations concerning certificates of conduct;
- Article 146 of the Penal Code (straffeloven) by repeatedly handling
matters involving the applicant in an irregular manner and thereby
causing him loss of "welfare";
- Article 151 of the Penal Code by including the Army Headquarters to
issue a false statement concerning him;
- Article 155 of the Code by repeatedly refusing to act on his
complaints;
- Article 162 of the Code by repeatedly issuing a false statement
regarding the applicant in a matter where the Government was obliged
to make a statement;
- Article 268 of the Code by repeatedly making defamatory statements
about the applicant.
The applicant further alleges a violation of Article 6 of the
Convention by his being denied the following "civil rights":
- that his certificate of conduct is issued according to the rules in
force since this right is protected by Article 155 of the Penal Code;
- that the Danish State does not commit injustice against him as this
right is protected by Article 146 of the Penal Code;
- that the State investigates his "notifications" as this right is
protected by Article 75 of the Administration of Justice Act and
Article 148 of the Penal Code;
- that the State does not induce the Army Headquarters to commit
offenses against him as this right is protected by Article 151 of the
Code;
- that the State hears his complaints as this right is protected by
Article 155 of the Penal Code;
- that the State does not "falsify" his certificate of conduct as this
right is protected by Article 162 of the Code; and
- that the State does not make defamatory statements about him as this
right is protected by Article 268 of the Code.
The applicant complains that he does not have any possibility of
redress as guaranteed under Article 6, in respect of the seven
violations of his above-mentioned "civil rights".
The applicant claims compensation.
THE LAW
Whereas, insofar as the applicant complains of the contents of the
certificate of conduct issued in 1961, the refusal of his request for
a new certificate and the conduct of the proceedings relating to the
issuing of the certificates concerned, it is to be observed that the
Convention, under the terms of Article 1 (Art. 1), guarantees only the
rights and freedoms set forth in Section I of the Convention; and
whereas, under Article 25 (1) (Art. 25-1) only the alleged violation
of one of those rights and freedoms by a Contracting Party can be the
subject of an application presented by a person, non-governmental
organisation or group of individuals; whereas, otherwise its
examination is outside the competence of the Commission ratione
materiae;
Whereas no right to be issued a certificate of professional conduct is
as such included among the rights and freedoms guaranteed by the
Convention; whereas in this respect the Commission refers to its
previous decision of 6 February 1967 on the admissibility of
application No. 2469/65;
Whereas, however, the applicant alleges in particular that Article 6
(Art. 6) of the Convention was violated during the action taken both
in the issuing of these certificates and in the handling of his
complaints relating to the 1961 certificate;
Whereas Article 6 (Art. 6) relates only to the determination of civil
rights and obligations or of a criminal charge; whereas it is clear
that the handling of these matters by the competent administrative
authorities was not concerned with the determination of the applicant's
civil rights or obligations within the meaning of paragraph 1 of
Article 6 (Art. 6-1); whereas it is equally clear that the applicant
was not in these proceedings charged with a criminal offence within the
meaning of that Article;
Whereas, accordingly, the action taken by the authorities in dealing
with these matters fall outside the scope of Article 6 (Art. 6) of the
Convention;
Whereas it follows that this part of the application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;
Whereas, in regard to the applicant's complaint as to the alleged
failure of the authorities concerned to observe various provisions of
Danish law, an examination of the case as it has been submitted,
including an examination ex officio, does not disclose any appearance
of a violation of the rights and freedoms set forth in the Convention
and in particular in Article 5 (Art. 5) which has been invoked by the
applicant;
Whereas it follows that this part of the application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;
Whereas, in regard to the applicant's complaint that the Public
Prosecutor has failed to take any action on the criminal charges laid
by the applicant, it is again to be recalled that only the alleged
violation of one of the rights and freedoms set forth in the Convention
falls within the competence of the Commission ratione materiae;
Whereas, in accordance with the Commission's constant jurisprudence,
no right to have criminal proceedings instituted against officials is
as such guaranteed by the Convention (see for example the decision of
the admissibility of application No. 2465/65, X v. Federal Republic of
Germany, Collection of Decisions, Vol. 24, p. 50);
Whereas it follows that also this part of the application is
incompatible with the provisions of the Convention within the meaning
of Article 27, paragraph (2) (Art. 27-2) thereof;
Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE