Lexploria

Application No. 12945/87

Constantinos HATJIANASTASIOU

against

GREECE

REPORT OF THE COMMISSION

(adopted on 6 June 1991)

TABLE OF CONTENTS

Pages

I. INTRODUCTION

(paras. 1 - 15)......................................... 1 - 2

A. The application

(paras. 2 - 4) ................................. 1

B. The proceedings

(paras. 5 - 10) ................................ 1 - 2

C. The present Report

(paras. 11 - 15) ............................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 41) ....................................... 3 - 9

A. The particular circumstances of the case

(paras. 16 - 32) ............................... 3 - 6

B. Relevant domestic law

(paras. 33 - 41) ............................... 6 - 9

III. OPINION OF THE COMMISSION

(paras. 42 - 81) ...................................... 10 - 16

A. Complaints declared admissible

(para. 42)...................................... 10

B. Points at issue

(para. 43) ..................................... 10

C. Compliance with Article 6 paras. 1 and 3 (b)

of the Convention (paras. 44 - 63) ............. 10 - 13

D. Compliance with Article 10 of the Convention

(paras. 64 - 79) ............................... 13 - 16

E. Recapitulation (paras. 80 - 81) ................... 16

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 17 - 18

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 19

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Greek citizen, born in 1948 and residing in

Athens. He is an Air Force officer and aeronautical engineer.

Before the Commission the applicant acted in person, with the

assistance, at various stages of the proceedings of Mr. Nicolaos

Constantopoulos, a lawyer practising in Athens.

3. The application is directed against Greece, whose Government

are represented by their Agent, Mr. C. Economides, Head of the Legal

Department of the Ministry of Foreign Affairs.

4. The application relates to the applicant's conviction, on

22 November 1985, by the Military Court of Review (Anatheoritiko

Dikastirio) of disclosing military secrets and to the proceedings

before this court and the Court of Cassation (Areios Pagos) to which

the applicant appealed. The applicant complains under Article 6 of

the Convention that the judgment of the Military Court of Review did

not give the reasons for his conviction, and that, due to this lack of

reasons in the judgment of the Military Court of Review and to the

short time limit for introducing and substantiating his appeal to the

Court of Cassation, he was unable to lodge an effective appeal. The

applicant also complains under Article 10 of the Convention that his

conviction violates his right to freedom of expression.

B. The proceedings

5. The application was introduced on 17 December 1986 and

registered on 2 May 1987.

6. 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 time

limit had been granted. The applicant submitted his observations in

reply on 22 January 1990.

7. On 4 April 1990 the Commission declared the application admissible.

8. The parties were then invited to submit further observations

on the merits of the application. The applicant submitted

supplementary observations on 18 May 1990 and the Government on

18 June 1990. The applicant, on his own initiative, presented further

observations on 17 July 1990.

9. On 15 October 1990 the parties were requested to submit

further information on the particular facts of the case. The

applicant's information was received on 29 October 1990. The

Government submitted information on 13 November 1990. On 28 February

1991 the Government submitted further information relating to domestic

legal practice and case-law.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

12. The text of this Report was adopted on 6 June 1991 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In 1982 the applicant submitted to the Air Force a study

concerning a guided missile written in his status 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.

17. On 4 July 1984, by order of the Chamber of the Permanent Air

Force Court of Athens, the applicant and another person were 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.

18. 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. His co-accused was acquitted.

19. The applicant and the Prosecutor of the Military Court of

Review (Epitropos tou Anatheoritikou Dikastiriou) appealed against

the above judgment.

20. After a hearing held on 28 February and 1 March 1985, the

Military Court of Review (Anatheoritiko Dikastirio) decided to

appoint two experts to determine whether elements in the Air Force

study had been included in the study addressed to the private

company. Two professors of the Polytechnical School of Athens were

appointed as experts.

21. On 26 September 1985, the experts submitted their opinion

concluding as follows:

"We are of the opinion that the two studies follow

different methods, that the two missiles (...) are

different and that the second missile is not a copy

of the first. Nevertheless, an inevitable transfer of

technical knowledge occurred."

22. On 21 and 22 November 1985, the Military Court of Review held

a hearing in the applicant's case. The Court heard 19 witnesses,

including the two experts. Written statements of other witnesses and

various documents were also read in open court. The witnesses heard

expressed themselves inter alia on the issues of whether elements in

the two studies were identical, whether the Air Force Study was

classified "secret" and whether various elements of the studies could

be found in free scientific literature.

23. According to the minutes of the proceedings, after the

hearing, the Court deliberated in camera and considered the following

questions set out by the President.

"1. Is the accused Hatjianastasiou Constantinos,

an officer of the Air Force, (...)

guilty of illegally and deliberately communicating

to others, between October 1982 and March 1983 in

Attica, plans and information of military importance

which had been classified as secret and the secrecy

of which was necessary for the interests of the State?

In particular, is he guilty of contacting, during

the above period, and at a time which has not been

exactly determined, the company L. and proposing to

this company that he should elaborate on behalf

of the company a study concerning a guided missile, and

that his financial reward would be fixed subsequently

and while he carried out work for this project, of

illegally and deliberately,

(a) communicating to the above company general

information concerning a study on a guided missile

carried out by the Air Force and specific technical data

of this missile, while, as an Air Force officer, he

knew that this information was secret and that the

military interest of the Greek State required that

such information should not be disclosed?

(b) handing to the above company various technical

elements he obtained from the Air Force study and

from the general Air Force project concerning the

production of such missiles, which elements

referred in particular to

matters> and to all other theoretical or technical

data which were included in the study subsequently

made on behalf of the above company which was

totally based on the elements handed by the

accused to the company and of acting as above

although, being the project officer, he knew that

the elements he disclosed were secret and that

their secrecy was necessary in the interest

of the Greek State?

2. Has it been established that the accused, while

disclosing the military secrets, erroneously believed that

he was allowed to act in the way he acted? In particular,

having regard to the fact that he was the officer who

drafted the Air Force study, could he reasonably believe

that he was entitled to draft another study and present it

to a private company?

3. Has it been established that the secret disclosed,

i.e. the general information communicated to the company L.

concerning the Air Force project, the study of the guided

missile and the specific data of this missile, were of

minor importance?

4. Has the extenuating circumstance of the applicant's

previous honest private, family and professional life been

established?"

24. According to the minutes of the proceedings the Court gave

the following answers to the above questions:

"On the question under No. 1 (a), by 4 votes to 1: Yes

On the question under No. 1 (b), by 4 votes to 1: No

On the question under No. 2, by 3 votes to 2: No

On the question under No. 3, by a unanimous vote: Yes

On the question under No. 4, by a unanimous vote: Yes."

25. After the deliberations the Military Court of Review gave in open

court its decision which read 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 Hatjianastasiou

guilty of disclosing military secrets which offence was

committed in Attica between October 1982 and March 1983.

The Court finds by unanimous vote that 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.

Having regard to Articles 2, 10 §3, 97 §1 and 2, 98 (e)

and (f), 364, 365, 366, 368, 369, 370, 371, 372, 374 and 434

of the Military Criminal Code, to Articles 26 §1, 27 §1, 79,

83, 84 §1 and 2, 87 and 462 of the Criminal Code, to

Articles 371 §4, 582 and 597 of the Code of Criminal Procedure

and to Article 3 of Law 663/77;

Having regard to the gravity of the acts committed,

to the personality of the accused, to the damages due to the

commission of the offence, to the specific nature of the

offence, to the specific circumstances under which the offence

was committed, to the intensity of the criminal intention

of the accused, to the latter's character, to his individual

and social condition, to his behaviour before and after the

commission of the offence;

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.

Whereas previously the convicted has neither been convicted

of an offence nor been sentenced to imprisonment; whereas

having regard to the circumstances under which the offence

was committed and the character of the convicted, the court

is satisfied that the rest of the term of imprisonment should

be suspended, (...)

For these reasons,

Having regard to Articles 99, 100 and 104 of the Criminal Code,

The Court orders that the rest of the term of imprisonment be

suspended for three years."

26. By the same judgment the Military Court of Review acquitted

the applicant of another offence and acquitted his co-accused.

27. On 23 November 1985, the applicant requested the registrar to

the Military Court of Review to provide him with a copy of the

minutes of the proceedings. He submits that the registrar informed

him that he should wait until the minutes were "clearly written down".

28. On 26 November 1985, the applicant appealed to the Court of

Cassation (Areios Pagos) against the judgment of the Military Court

of Review. He 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".

29. On 23 December 1985, the applicant repeated his request

for a copy of the minutes of the proceedings. He received the copy on

10 January 1986.

30. 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.

31. 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 within which he could 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

judgment and it was impossible for him to determine on what elements

the Military Court of Review had based its decision.

32. On 18 June 1986, the Court of Cassation declared the

applicant's appeal inadmissible. The Court considered the applicant's

grounds of appeal as set out in para. 28 above and 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.

B. Relevant domestic law

(i) As regards the offence of disclosing military secrets

33. Military Criminal Code

Article 97

----------

"1. Any member of the armed forces and any person belonging

to the armed forces services who illegally and deliberately

gives or communicates to others documents, plans or other

objects or secret information of military importance, or

allows that such documents, plans, objects or information

be brought to the knowledge of others is liable to

imprisonment (katheirxi), or to capital punishment if the

above has been communicated to a foreign state or an agent

or a spy of a foreign state.

2. Where the (information) communicated is of lesser

importance the convicted person is sentenced to imprisonment

(fylakisi) of at least six months."

Article 98

----------

"'Secret information of military importance' (within the

meaning of Article 97 §1) is information concerning the

Greek State or its allies which relates to

...

e) any object classified as secret."

(ii) As regards the courts' obligation to

give reasons for their judgments

34. Constitution of Greece of 1975

Article 93 para. 3

"All court judgments must be specifically and

thoroughly reasoned and they shall be pronounced in a

public sitting. Publication of the minority opinion

shall be compulsory. A law shall specify matters

concerning the entry of any minority opinion into the

minutes as well as the conditions and prerequisites for

the publicity thereof."

Article 96 paras. 4 and 5

"4. Special laws may provide for:

(a) Military, naval and air force tribrunals which shall

have no jurisdiction over civilians.

...

5. The courts specified under sub-paragraph (a) of the

previous paragaraph shall be composed in majority of members

of the judicial branch of the armed forces, invested with

the guarantees of functional and personal independence

specified in Article 87 paragraph 1 of this Constitution.

The provisions of paragraphs 2 to 4 of Article 93 shall be

applicable to the sittings and rulings of these courts.

Matters pertaining to the application of provisions of this

paragraph, as well as the time upon which they shall enter

into force, shall be specified by law."

35. According to the constant case-law of the Court of Cassation

the lack of reasons in judgments of the military courts does not

constitute a ground of cassation since the implementation of Article

93 §3 of the Constitution as regards military courts depends,

according to Article 96 §5 of the Constitution, upon the enactment of

special laws which have not yet been enacted (cf. Court of

Cassation judgments nos. 470/1975, 483/1979, 18/1980,

503/1980, 647/1983, 531-535/1984, 1494/1986).

36. According to the case-law of the Court of Cassation, it is not

required that the judgments of military courts be reasoned. It is

sufficient that there have been replies to the questions put by the

President of the Military Court which questions must contain fully and

accurately the acts imputed to the accused in order that the Court of

Cassation be enabled to control whether the application of criminal

law provisions to the facts of the case, as these have been

established by the Military Court, was correct (see Court of Cassation

judgments Nos. 456/1986, 1494/86).

(iii) As regards the cassation appeal from military courts

37. Military Criminal Code

Article 425 para. 1

"An appeal to the Court of Cassation (anairesi) may be brought

within a five-day time-limit starting on the date of the

pronouncement of the (challenged) judgment or, in case the

convicted person was not present or not represented, on the date

of notification of the judgment."

Article 426

"Cassation grounds are:

...

(B) the erroneous implementation and interpretation

of criminal law provisions."

38. Criminal Procedure Code

Article 473 para. 3

"The time-limit for introducing a cassation appeal starts on the

date on which the challenged judgment will be registered in

writing in the registry book of the criminal court. Registration

of the judgment shall be completed within 15 days; otherwise the

president of the criminal court can receive a disciplinary

sanction."

Article 509

"Apart from the appeal grounds included in the appeal, additional

appeal grounds can be submitted by separate document to be

deposited with the secretariat of the Prosecutor of the Court of

Cassation at least 15 days before the hearing. After the above

date any additional appeal grounds are inadmissible."

39. Relevant case-law of the Court of Cassation

According to the case-law of the Court of Cassation (cf.

judgments nos. 656/1985, 1768/1986, 205/1988, 565/1988), the

provision of Article 473 §3 of the Criminal Procedure Code does not

apply to appeals from military courts since the time-limits for such

appeals and their starting date are specifically provided for in

Article 425 of the Military Criminal Code.

40. Moreover, the Court of Cassation in its constant case-law

requires that the grounds of appeal be exposed in the document

introducing the appeal. In particular, as regards the appeal ground

of "erroneous implementation and interpretation of criminal law

provisions" it is required that the alleged errors of the challenged

judgment be clearly specified in the appeal (cf. for example Court

of Cassation judgments Nos. 234/1968, 459/1987, 1366/1987, 1454/1987;

cf. also the judgment given by the Court of Cassation in the present

case).

41. Finally, according to the constant case-law of the Court of

Cassation additional appeal grounds can only be taken into

consideration if the initial appeal contains at least one admissible

appeal ground sufficiently substantiated (cf. for example judgments

Nos. 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979,

647/1983, 1438/1986, 1453/1987).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

42. The complaints declared admissible are the following:

a) The complaint that, due to the lack of reasons in the

judgment pronounced orally by the Military Court of Review and to the

time-limit provided for by Article 425 para. 1 of the Military

Criminal Code, the applicant's right to a fair trial has been

violated.

b) The complaint that the applicant's conviction for

disclosing military secrets of minor importance violates his right to

freedom of expression.

B. Points at issue

43. Accordingly, the following points are at issue:

a) Whether there has been a violation of Article 6 para. 3 (b)

taken together with Article 6 para. 1 (Art. 6-3-b+6-1) of the Convention;

b) Whether there has been a violation of Article 10 (Art. 10) of the

Convention.

C. Compliance with Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b)

of the Convention

44. Article 6 para. 1 (Art. 6-1) first sentence and para. 3 (b)

(Art. 6-3-b) of the Convention provide:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair ...

hearing ... by ... a ... tribunal.

...

3. Everyone charged with a criminal offence has

the following minimum rights:

...

(b) to have adequate time and facilities for the

preparation of his defence."

45. The applicant first submits that the fact that the Military

Court of Review gave no reasons for his conviction when pronouncing

its judgment orally is contrary to Article 6 (Art. 6) of the

Convention. He observes that the Constitution of Greece requires that

all judgments be specifically and thoroughly reasoned, and that the

the Greek legal order tolerates the non-application of this

constitutional principle to military court decisions only because the

national legislator failed to enact a law implementing the above

principle to military courts.

46. The Government contend on this point that Article 6 (Art. 6)

of the Convention does not require that court decisions be reasoned.

They submit accordingly that no violation of this provision can be

found on this point.

47. The Commission first observes that, according to the case-law

of the Court of Cassation (cf. para. 36 above) Greek judicial practice

does not require that the judgments given by military courts be

reasoned. It requires, nevertheless, that the acts for which the

accused is convicted be fully and accurately contained in the

questions put by the President of the military court to the members of

this court. The text of these questions is taken into consideration

by the Court of Cassation, if subsequently seized with an appeal

against the judgment of the military court, in order to control

whether the military court correctly applied the relevant criminal law

provisions.

The Commission finds therefore that in the domestic judicial

practice, the text of the questions is a relevant part of the

judgments of military courts and that it should be considered as such

for the purposes of the examination of the proceedings complained of

under Article 6 (Art. 6) of the Convention.

48. The Commission considers that the questions included in the

minutes of the proceedings of the Military Court of Review and the

answers given by this Court sufficiently inform the applicant of the

acts which were imputed to him and of the reasons for his conviction.

The total absence of reasons alleged by the applicant is not,

therefore, established. On the contrary, the text of the questions

put, taken together with the answers given by the Court, must be

regarded as the actual reasons for the applicant's conviction.

49. However, it appears clearly from the minutes of the

proceedings of the Military Court of Review that only the operative

part of the judgment of this court was pronounced orally on 22

November 1985 and it does not appear that any reference was made to

the reasons for the applicant's conviction when the court gave its

judgment in open court. Consequently, it is established that the

applicant was not given the reasons for his conviction until 10

January 1986 when he received a copy of the minutes of the proceedings

including the questions put to the Court and the Court's answers.

50. Article 6 (Art. 6) of the Convention does not expressly

require that all court decisions be reasoned. Moreover, it does not

require that reasons be given at the time when the judgment is

pronounced orally. However, the Commission has accepted that under

specific circumstances the absence of reasons in a court decision can

raise issues as to the fairness of the proceedings (cf. No. 8769/79,

Dec. 16.7.81, D.R. 25 p. 240). This can be the case where the absence

of reasons prevents the effective exercise of the rights of the

defence in the course of subsequent appeal proceedings and, in

particular, the exercise of the minimum right of the accused to have

adequate time and facilities for the preparation of his defence

guaranteed under para. 3 (b) of Article 6 (Art. 6-3-b). In this

respect the Commission recalls that the guarantees of Article 6 para.

3 (Art. 6-3) are particular aspects of the general guarantee of fair

trial (cf. for example Eur. Court H.R., Bönisch judgment of 6 May

1985, Series A no. 92, pp. 14-15, para. 29; Kamasinski judgment of 19

December 1989, Series A no. 168, pp. 31 - 32, para. 62; Windisch

judgment of 27 September 1990, Series A no. 186, p. 9, para. 23).

51. In the present case the applicant submits that since he did

not know the reasons for his conviction he could not, within the

five-day time-limit provided for in Article 425 para. 1 of the

Military Criminal Code, introduce and substantiate his appeal to the

Court of Cassation in order to comply with the requirement of this

court as to the admissibility of cassation appeals.

52. The Government submit that the applicant's allegation is

ill-founded. They observe that the five-day time-limit in Article

425 para. 1 of the Military Criminal Code was sufficient in the

present case for the preparation of the applicant's appeal and note

that short delays for introduction of domestic appeals in criminal

proceedings are in the interest of both the fair administration of

justice and the accused.

53. The Government submit in particular that the text of

question No. 1 put to the Military Court of Review was the same

as that contained in the order of the Chamber of the Permanent Air

Force Court of Athens of 4 July 1984 by which the applicant was

charged with the offence of disclosing military secrets. They note

that according to Article 366 para. 2 of the Military Criminal Code

the "main question put to the court is based on the charge order and

contains the question whether the accused is guilty of the offence he

is charged with". The Government conclude that the applicant had been

aware of the text of this question since at least 4 July 1984.

54. As regards questions Nos. 2 and 4, concerning exculpation in

case of error and extenuating circumstances in favour of the accused,

the Government submit that they were based on the arguments of the

applicant's defence and thus in substance known to the applicant.

55. Finally, the question (No. 3) as to whether the military

secrets disclosed were of minor importance was put ex officio by the

President of the Military Court of Review. However, a concrete

reference to the reply to this question was made in the judgment

orally pronounced. Therefore, in the Government's view, the applicant

cannot claim that he did not know that the said question had been put

to the Court.

56. The Government also submit that it was open to the applicant

to substantiate his appeal by presenting additional appeal grounds.

This submission would have been admitted by the Court of Cassation if

made at least 14 days before the hearing. The Government argue that

under these circumstances the applicant had sufficient time and

facilities for the preparation of his defence.

57. The Government conclude that no violation of Article 6

(Art. 6) of the Convention can be established.

58. The Commission notes that the questions put to the Military

Court of Review were based on documents issued at earlier stages of

the proceedings and on the arguments of the defence. Thus the

applicant could have assumed what the questions were. But he did not

know the text of the questions put to the court and the court's

answers until 10 January 1986, when he received a copy of the minutes

of the proceedings.

59. The Commission further observes that the Government's argument,

according to which the applicant could submit further appeal grounds

up to 14 days before the hearing before the Court of Cassation,

disregards the constant case-law of this court, according to which

additional appeal grounds can only be taken into consideration if the

original appeal contains at least one admissible appeal ground

sufficiently substantiated. The Court of Cassation found in the

present case that the applicant's original appeal did not contain such

a ground.

60. The Commission has examined the applicant's situation in the

light of its above considerations. It finds that after 22 November

1985, that is the date on which the Military Court of Review

pronounced orally the operative part of its judgment, the applicant

had a five-day time-limit to introduce an appeal to the Court of

Cassation and to substantiate the appeal grounds, i.e. to set out

clearly how, in his view, the Military Court of Review had erroneously

applied and interpreted the relevant provisions of the Military

Criminal Code. However, during the above five-day time-limit the

applicant did not know the reasons for the decision he intended to

challenge since these reasons were to be found in the questions put to

the Military Court of Review judges. The text of the above questions

was brought to the knowledge of the applicant on 10 January 1986, that

is after the five-day time-limit had expired. Finally, by that time,

further substantiation of his appeal was no longer possible. As a

result of the above, the applicant did not have the possibility to

lodge with the Court of Cassation an effective appeal.

61. The Commission recalls that Article 6 (Art. 6) of the

Convention does not compel the Contracting States to set up courts of

cassation. However, a State which institutes such courts 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) notwithstanding the fact that the application of these guarantees

depends on the special features of such proceedings (cf. Eur. Court

H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p. 14-15,

paras. 25-26).

62. Having regard to the applicant's situation after his

conviction on 22 November 1985 by judgment of the Military Court of

Review, as described above, the Commission finds that the absence of

reasons in the judgment of the said Court combined with the short

time-limit and the further restrictive conditions as to the

admissibility of a cassation appeal compromised the rights of the

defence and in particular the applicant's right to have adequate time

and facilities for the preparation of his defence guaranteed under

Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.

Conclusion

63. The Commission concludes unanimously that there has been a

violation of Article 6 para. 3 (b) taken together with Article 6 para.

1 (Art. 6-3-b+6-1) of the Convention.

D. Compliance with Article 10 (Art. 10) of the Convention

64. Article 10 (Art. 10) of the Convention 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."

65. The applicant submits that his conviction constitutes an

interference with his right to freedom of expression. He was

convicted for having communicated information on his scientific work.

This interference cannot be regarded as necessary in a democratic

society. The general information he was accused of having disclosed

was "of minor importance" and available in free scientific

literature. Despite the qualification of the Air Force study as

"secret" no secret elements whatsoever of this study were communicated

to the company L. The criminalisation of communication of general

scientific information already available in scientific literature is

not neceesary in a democratic society. Thus Article 10 (Art. 10) of the

Convention has been violated.

66. The respondent Government submit that Article 10 (Art. 10) does

not embody a right to communicate information with the purpose of

receiving remuneration. Moreover, the Contracting States have a

discretionary power to limit by law the exercise of the right to

freedom of expression in particular where the military interests and

the national defence of the State are at stake. It is necessary in a

democratic society to restrain the disclosure of military secrets even

if such secrets are of minor importance.

67. The Commission first recalls that freedom of expression is

one of the essential foundations of a democratic society (cf. Eur.

Court H.R., Handyside judgment of 7 December 1976, Series A no. 24, p.

23, para. 49). It observes that Article 10 para. 1 (Art. 10-1) of the

Convention does not exclude from its protection the communication of

information for commercial or financial reasons and recalls that the

Convention organs have on several occasions applied this provision to

communication of ideas or information made by persons whose profession

involved such communication (cf. e.g. Eur. Court H.R. Markt Intern

Verlag GmbH and Klaus Beermann judgment of 20.11.89, Series A no.

165). Moreover, the applicant's status as an officer of the armed

forces and the specific duties attached to this status do not deprive

him of the right to freedom of expression guaranteed under para. 1 of

Article 10 (Art. 10-1), but are elements whose impact on the compass

of the right must be examined under para. 2 of this provision.

Consequently, the Commission finds that in the present case the

applicant's conviction for having communicated information to the

company L. constitutes an interference with his freedom of expression.

68. According to the established case-law of the European Court of

Human Rights (cf. for example, Müller and others judgment of 24 May

1988, Series A no. 133, p. 19, para. 28), any interference in the

exercise of the right guaranteed in Article 10 para. 1 (Art. 10-1) of

the Convention, if it is to be compatible with the requirements of

paragraph 2 of this Article, must:

(a) be prescribed by law;

(b) pursue one of the legitimate aims set out in paragraph 2

of Article 10 (Art. 10-2); and

(c) be necessary in a democratic society.

69. In the present case the applicant was convicted under Article

97 of the Military Criminal Code. The interference with his freedom

of expression was, therefore, provided for by law.

70. Moreover, the Commission finds that the applicant's conviction

aimed at safeguarding national security and preventing the disclosure

of information received in confidence. The measure complained of

pursued, therefore, a legitimate aim.

71. As regards the necessity of the applicant's conviction in a

democratic society, the Commission observes that the adjective

"necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the

existence of a "pressing social need" (cf. Eur. Court H.R., Lingens

judgment of 8 July 1986, Series A no. 103, p. 25, para. 39).

Contracting States have a margin of appreciation in assessing the

existence of such a necessity, but this margin is subject to a

European supervision embracing both the legislation and the decisions

applying it, even those given by an independent court (Eur. Court

H.R., above-mentioned Handyside judgment p. 23, para. 49; Barfod

judgment of 22 February 1989, Series A no. 149, p. 12 para. 28). For

this, the organs of the Convention must have regard to the facts and

circumstances of the specific case before them (Eur. Court H.R.,

Sunday Times judgment of 26 April 1979, Series A No. 30, p. 41, para.

63).

72. The applicant submits that the information disclosed in the

present case was already freely available in scientific literature.

But this argument has not been considered in the judgment of the

Military Court of Review, which based the applicant's conviction on

the finding that the information disclosed was "secret" since it

related to a document which was qualified as "secret" by the military

authorities.

73. The question which arises, therefore, is whether a pressing

social need existed for sanctioning the disclosure of information

formally qualified as "secret" when such information might have

already been known to the public (cf. mutatis mutandis Eur. Court

H.R., Weber judgment of 22 May 1990, Series A no. 177, pp. 21-23,

paras. 46-51).

74. The Commission takes into account the applicant's status as

an officer of the armed forces and the specific duties and

responsibilities attached to this status in context of military

discipline. It also takes into account the fact that the information

disclosed was of a military nature.

75. The Commission has also had regard to the interest of the

respondent State in protecting its national security. It recalls that

the margin of appreciation available to the respondent State in

assessing the pressing social need in the field of national defence

and security is a wide one (cf. mutatis mutandis Eur. Court H.R.,

Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 59).

76. Moreover, if persons who are members of the armed forces and

who, in their capacity as such members, receive information qualified

as "secret" were entitled to disclose the information received on the

ground that, in their view, it was not, or was not any longer, secret,

a serious risk of undermining the protection of military secrecy and

consequently national security could arise. Therefore, a strict

application of military criminal law preventing the disclosure of

information which is qualified as "secret" by the military authorities

can be regarded as corresponding to a pressing social need.

77. Having regard to the above, the Commission is satisfied that

the applicant's conviction, under Article 97 para. 2 of the Military

Criminal Code, for disclosing military secrets of minor importance

corresponded to a pressing social need. Moreover, the Commission

finds that this conviction was proportionate to the legitimate aim

pursued by the above provision, i.e. the protection of national

security.

78. The Commission finds, therefore, that the measure complained

of can reasonably be regarded as necessary in a democratic society

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

Conclusion

79. The Commission concludes unanimously that there has been no

violation of Article 10 (Art. 10) of the Convention.

E. Recapitulation

80. The Commission concludes unanimously that there has been a

violation of Article 6 para. 3 (b) (Art. 6-3-b) taken together with

Article 6 para. 1 (Art. 6-1) of the Convention;

81. The Commission concludes unanimously that there has been no

violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

17 December 1986 Introduction of the application

2 May 1987 Registration of the application

24 October 1988 Submission by the applicant of a memorandum

Examination of Admissibility

6 July 1989 Commission's decision to invite

the Government to submit

observations on the

admissibility and merits of the

application by 27 October 1989

6 and 28 November 1989 Extension of the above time-limit

12 December 1989 Government's observations

22 January 1990 Applicant's observations in reply

4 October 1990 Commission's decision to declare

the application admissible

Examination of the merits

10 April 1990 Decision on admissibility transmitted

to the parties who are invited to

submit written observations on the

merits by 5 June 1990

18 May 1990 Applicant's observations on the merits

13 June 1990 Extension of the time-limit for the

submission of observations on the

merits

18 June 1990 Government's observations on the merits

7 July 1990 Commission's consideration of the

state of proceedings

17 July 1990 Applicant's supplementary observations

on the merits

15 October 1990 Commission's request for information

29 October 1990 Applicant's reply to the request for

information

Date Item

______________________________________________________________________

13 November 1990 Government's reply to the request for

information

12 January 1991 Commission's consideration of the

state of proceedings

28 February 1991 Further information submitted by the

Government

13 April 1991 Commission's consideration of

the state of proceedings

28 May 1991 Commission's deliberations on the

merits, final vote

6 June 1991 Adoption of the Report

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HATJIANASTASIOU v. GREECE

HATJIANASTASIOU v. GREECE

LEXI