CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 mai 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)