Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12945/87

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. 12945/87;

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;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a Greek citizen, born in 1948. 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

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, 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 guilty of

disclosing military secrets which offence was

committed in Attica between October 1982 and March 1983.

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".

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 1986.

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 1986. 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 1987.

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 1990.

THE LAW

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

1986. 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. 9.6.58 Yearbook I p. 412,

No. 712/60, Yearbook IV p. 384, No. 2686/65, Yearbook IX p. 494, No.

5874/72 Dec. 29.5.74, Coll. 46 p. 146, No. 5964/72, Dec. 29.9.75, 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

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 1986. 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. 16.7.81, 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 17.1.1970,

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 6.5.85, Series A no. 92, pp. 14-15, 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 7.12 76, 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.,

Müller and others judgment of 24.5.88, 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 President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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HATJIANASTASIOU v. GREECE

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