AS TO THE ADMISSIBILITY OF. Application No /87 by Constantinos HATJIANASTASIOU against Greece

Size: px

Start display at page:

Download "AS TO THE ADMISSIBILITY OF. Application No /87 by Constantinos HATJIANASTASIOU against Greece"

Arlene Bradley
5 years ago
Views:

1 AS TO THE ADMISSIBILITY OF Application No /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 /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; THE FACTS Having deliberated; Decides as follows: The facts of the case as submitted by the parties may be summarised as follows: The applicant is a Greek citizen, born in 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

2 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, and 434 of the Military Criminal Code and Articles 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 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".

3 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 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 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 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 THE LAW

4 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 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 Yearbook I p. 412, No. 712/60, Yearbook IV p. 384, No. 2686/65, Yearbook IX p. 494, No. 5874/72 Dec , Coll. 46 p. 146, No. 5964/72, Dec , 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

5 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 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 , 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 , 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 , Series A no. 92, pp , 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 , 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.,

6 Müller and others judgment of , 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 (H. C. KRÜGER) President of the Commission (C. A. NØRGAARD)

Mr. H. C. KRÜGER, Secretary to the Commission

Mr. H. C. KRÜGER, Secretary to the Commission The European Commission of Human Rights sitting in private on 5 May 1986, the following members being present: MM. J. A. FROWEIN, Acting President C. A. NØRGAARD G. SPERDUTI M. A. TRIANTAFYLLIDES G. JÖRUNDSSON