CEDH · CASELAW;REPORTS;ENG — 6 juin 1991

.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 }  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 <specific technical         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 Co