Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13877/88

by Georgios Nikolaos DIMITRIADIS

against Greece

The European Commission of Human Rights sitting in private

on 17 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

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 31 March 1988

by Georgios Nikolaos DIMITRIADIS against Greece and registered

on 20 May 1988 under file No. 13877/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the applicant may be

summarised as follows:

The applicant is a Greek citizen born in 1944. He is Embassy

Secretary at the Ministry of Foreign Affairs. He is represented before

the Commission by Mr. P. H. Bernitsas, attorney-at-law.

The applicant has served in the Greek Embassy in Brazil as

"Chargé d'Affaires" since 1980. On 10 June 1982 the Secretary General

for Press and Information transmitted to the Minister of Foreign

Affairs a number of private letters he had received from V. and Z.,

members of the Press Office of the Embassy. These letters contained

accusations against the applicant and the Ambassador of Greece to

Brazil for treason, illegal trade of cars and arms, illegal commercial

activities, currency smuggling and other offences.

On 22 September 1982 the Minister of Foreign Affairs decided

to appoint E., judge of the Administrative Court of Appeal, to examine

the accused under oath (enorki dioikitiki exetasi). E. examined

the applicant and other persons in Brazil and submitted, on 29

November 1982, his conclusion to the Minister of Foreign Affairs.

The Minister referred the case to the Supreme Service Council of the

Ministry of Foreign Affairs.

The applicant was accused of having co-operated with the head

of the Greek Embassy in Brazil, in converting into cruzeiros in the

"black" market the foreign currency in US dollars which was sent from

Greece to cover the expenses of the Embassy and the ambassador's

residence and of having benefited from the difference between the

actual rate of exchange and the false rate reported to the Ministry.

He was accused of having submitted to the Ministry documents

concerning expenses for work done with inaccurate information

falsifying the invoices for his own profit. Finally, he was accused

of having attempted to deceive the State and gain 20,000 dollars by

submitting to the Ministry high-price quotations by transport

companies for the transport of his househeold effects to Athens, and

concealing a lower quotation.

The Minister noted that these acts or omissions "notwithstanding

their criminal character (were) incompatible with the functions of

civil servants and the dignity of the applicant's position".

The Supreme Service Council gave its decision on 10 February

1984. It ruled that the accused had committed the above offences and

suspended the applicant for three months. According to Article 115 of

law 419 (Rules of the Ministry of Foreign Affairs) the most severe

penalty for disciplinary offences is that of dismissal.

On 27 June 1984, the Council of State (Simvoulio tis

Epikratias) annulled the above decision on appeal on the ground that

it had not been preceded by an investigation.

On 18 September 1984 M., Ministre Plénipotentiaire, was

assigned to carry out an investigation. In his report submitted to

the Ministry of Foreign Affairs M. concluded that no evidence against

the applicant and his co-accused could be found and requested that

disciplinary proceedings be brought against V. The Supreme Service

Council re-examined the case in the light of M.'s report. It did not

allow the accused to be represented by a lawyer and rejected their

objections directed against the participation of the legal adviser of

the administration who had also participated in the earlier

proceedings.

In its decision of 21 December 1984 the Supreme Service

Council found that the accused had not committed the offences of

falsification of invoices and attempt to embezzle public monies. It

found, nevertheless, that they had made an inaccurate declaration in

the currency exchange minutes and the other documents submitted and

profited from the difference between the money actually received and

the lower amount declared. Therefore, they had acted in a manner

incompatible with their capacity as civil servants and obviously

contrary to the dignity of their position, in the sense of Art. 116

para. 1 of the law 419/76.

Furthermore, the Supreme Service Council found that it was

not proven that the accused had attempted to deceive the State, but

considered established the fact that they had shown negligence which

might damage the State, thus committing the disciplinary offence of

"negligence in the execution of service".

The Supreme Service Council suspended the applicant for two

months.

The applicant appealed to the Council of State against the

above decision.

In its judgment of 7 October 1987 the Council of State approved

the composition of the Supreme Service Council and found that the lack

of representation by a lawyer was in accordance with the law. The

Council of State found, furthermore, that it was not proved that the

applicant had obtained any profit by exchanging the currency in US

Dollars in the "black" market, but that this practice had created a

reasonable suspicion of irregular management. Moreover, it found that

the applicant had submitted to the Ministry of Foreign Affairs

extremely high offers for the transport of his household, thus being

negligent in the execution of his functions. Finally, the Council of

State, having regard to the excellent disciplinary record of the

applicant and his reputation for good service modified the penalty

imposed to "interruption of the right of promotion" for one year.

These proceedings have been closely followed by the press

and gave rise to campaigns both in favour of and against the accused.

COMPLAINTS

1. The applicant complains that he did not receive a fair trial.

He alleges that the Supreme Service Council cannot be regarded as

independent or impartial, since its members are appointed by the

Minister of Foreign Affairs. He challenges, in particular, the

participation of a legal adviser in the Ministry in the composition of

that body, pointing out that his usual duty consists in defending the

Ministry in different proceedings. Moreover, the legal adviser had

participated in the previous proceedings which had led to his

conviction and could not therefore be regarded as an "impartial

judge". He complains that he was deprived of his rights to have

adequate time and facilities for the preparation of his defence and to

be assisted by a lawyer. Finally, he submits that the virulent press

campaign before and during the proceedings affected his position and

the fairness of the proceedings. He points out, in particular, that

most members of the Supreme Service Council are laymen and not

professional judges.

The applicant moreover submits that the above-mentioned

procedural defects have not been cured by the proceedings before the

Council of State since the competence of that court is limited to

a control of the legality of the administrative decisions challenged

but does not extend to an examination of the merits of the case. In

particular circumstances the Council of State has the competence

to revise the penalties imposed by administrative disciplinary bodies.

The applicant invokes Article 6 of the Convention.

As far as the question of applicability of this provision is

concerned the applicant notes that the charges brought against him

were extremely important and had a criminal character. He alleges

that the taking of disciplinary instead of criminal proceedings in

his case had the purpose of depriving him of his rights.

2. The applicant alleges that he has been the victim of

discrimination. He submits that the proceedings instituted against

him and the press campaign which followed were motivated solely by

political considerations with the ultimate aim of disqualifying

persons having served politicians before 1981. In this respect he

refers to the fact that his co-accused had been director of the

diplomatic office of the former Presidents of the Republic of Greece,

Konstantinos Tsatsos and Konstantinos Karamanlis, and that an

important part of the accusations brought against them both in the

letters of V. and Z. was merely based on the consideration that they

did not believe in the political principles of the governing party

after 1981.

3. The applicant alleges that the accusations brought against him

by V. and Z. as well as those formulated in the report of the

investigating judge E., were based on his private correspondence. He

considers this to be an unjustified interference with his right to

respect for private life and correspondence and invokes Article 8 of

the Convention.

4. Finally, the applicant alleges that the proceedings instituted

against him constitute inhuman or degrading treatment within the

meaning of Article 3 of the Convention.

THE LAW

1. The applicant alleges that he has not had a fair trial in the

determination of criminal charges brought against him and invokes

Article 6 (Art. 6) of the Convention.

The first question to be determined by the Commission is

whether these provisions apply to the proceedings complained of.

Article 6 para. 1 (Art. 6-1) guarantees a "fair trial" to everyone

whose "civil rights and obligations or any criminal charge against

him" is to be determined. Paragraphs 2 and 3 of Article 6

(Art. 6-2-3) of the Convention guarantee specific rights to "everyone

charged with a criminal offence".

The Commission notes that in the present case the applicant

was sentenced by a disciplinary body for offences prescribed by law

419/76 governing the status of the civil servants of the Ministry of

Foreign Affairs. However this fact does not, as such, exclude the

applicability of the provisions of Article 6 (Art. 6) of the Convention.

The Commission refers to the case-law of the European Court of

Human Rights and the principles set forth in its judgments Engel and

Others of 8 June 1976 (Series A no. 22, pp. 33-35 , paras. 80-82),

Öztürk of 21 February 1984 (Series A no. 73, pp. 17-18, paras. 48-50)

and Campbell and Fell of 21 February 1984 (Series A no. 80, p. 35,

para. 68-69). It recalls that the notion of "criminal charge" under

Article 6 (Art. 6) of the Convention is "autonomous" and that the question

whether the proceedings instituted against a person come within the

"criminal" sphere must be considered in the light of the criteria

stated in the above-mentioned judgments, i.e. the qualification of the

offences in the context of the domestic legal system, the very nature

of the offence and the nature and degree of severity of the penalty

which the accused risked incurring.

In its above-mentioned Engel and Others judgment, the Court

stated as follows:

"...If the Contracting States were able at their discretion

to classify an offence as disciplinary instead of criminal,

or to prosecute the author of a "mixed" offence on the

disciplinary rather than on the criminal plane, the operation

of the fundamental clauses of Articles 6 and 7 would be

subordinated to their sovereign will. A latitude extending

thus far might lead to results incompatible with the

purpose and object of the Convention."

(p. 34, para. 81).

The Commission is therefore required to examine also whether

in opting for the disciplinary proceedings the Ministry of Foreign

Affairs did not arbitrarily deprive the applicant of the fuller

procedural guarantees which ordinarily accompany criminal proceedings.

In the present case the Commission observes that the

accusations made, at least initially, against the applicant

undoubtedly contain elements of criminal charges. The accusations of

issuing false statements, falsification of invoices and attempts to

deceive the State and embezzle money, are certainly charges which, as

pointed out by the Minister of Foreign Affairs, could give rise to a

criminal prosecution.

However, many of the initial accusations have been abandoned

during the procedure before the Supreme Service Council. It appears

clearly from the applicant's submissions that this body examined the

applicant's acts during the contested period of his service in Brazil

for the purpose of establishing whether or not these acts were

compatible with his status of civil servant and diplomat and whether

he had duly fulfilled his duties. The Commission further observes

that the offences with which the applicant was charged are contained

in a disciplinary code which is concerned with the proper functioning

of the civil service rather than the protection of the interests of

others or of society generally.

Moreover, the Commission notes that, "according to the ordinary

meaning of the terms there generally come within the ambit of the

criminal law offences that make the perpetrator liable to penalties

intended, inter alia, to be deterrent and usually consisting of fines

and of measures depriving the person of his liberty" (see the above-

mentioned Öztürk judgment, p. 20, para. 53).

In the present case the penalty the applicant risked

incurring, i.e. dismissal according to Article 115 para. 1 of law

419/76, and the penalty actually imposed, i.e. interruption of the

right of promotion for one year, are, by their very nature,

disciplinary penalties. They cannot confer on the offences concerned

a "criminal" character.

In view of the above, the Commission finds that the

proceedings complained of did not concern a criminal charge against

the applicant. Therefore, Article 6 (Art. 6) of the Convention does

not apply to these proceedings.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant also complains that the right to respect for his

private correspondence, guaranteed by Article 8 (Art. 8) of the

Convention, has been violated, since the accusations brought against

him, first by V. and Z. and subsequently the investigating judge E.,

were based on elements deriving from such correspondence. He

moreover alleges that he has been the victim of discrimination

contrary to Article 14 (Art. 14) since he was prosecuted on the basis

of political considerations.

The Commission first observes that the applicant has not

shown that V. and Z., when addressing their letters to the Secretary

General for Press and Information, acted in their official capacity and

thus engage the responsibility of Greece under the Convention.

In any event, the Commission finds that it is not required to

decide whether or not the facts alleged by the applicant disclose any

appearance of a violation of the provision invoked as, under Article

26 (Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The mere fact that the applicant's case has been submitted to

the various competent authorities and courts does not of itself

constitute compliance with this rule. It is also required that the

substance of any complaint made before the Commission should have been

raised during the proceedings concerned. In this respect the

Commission refers to its established case-law (see e.g. No. 1103/61,

Yearbook 5 pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3 pp. 10, 15;

No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120).

In the present case the applicant did not raise, either in

form or in substance, in the proceedings before the Supreme Service

Council or the Council of State, the complaints which he now makes

before the Commission. Moreover, an examination of the case as it has

been submitted does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from raising this

complaint in the proceedings referred to.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this part of

the application must in this respect be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. Finally, the applicant alleges that the institution of

proceedings against him constituted inhuman or degrading treatment

contrary to Article 3 (Art. 3) of the Convention.

The Commission finds that the facts of the case do not

disclose any appearance of a violation of this provision.

It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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