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You are here: BAILII >> Databases >> European Court of Human Rights >> HADJIANASTASSIOU v. GREECE - 12945/87 [1992] ECHR 78 (16 December 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/78.html Cite as: 16 EHRR 219, (1993) 16 EHRR 219, [1992] ECHR 78 |
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In the case of Hadjianastassiou v. Greece*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Sir John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 June and 23 November 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 69/1991/321/393. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 12 July 1991, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12945/87) against the Hellenic Republic lodged with
the Commission under Article 25 (art. 25) by a Greek national,
Mr Constantinos Hadjianastassiou, on 17 December 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 6 and 10 (art. 6, art. 10) of the
Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 29 August 1991, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mr J. De Meyer,
Mrs E. Palm, Mr I. Foighel, Mr R. Pekkanen and Sir John Freeland
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr S. K. Martens, substitute judge, replaced
Mr Cremona, who had left the Court on the expiry of his term of office
and whose successor had taken up his duties before the hearing
(Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Greek Government ("the Government"), the Delegate of the Commission
and the applicant's lawyer on the organisation of the procedure
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicant's memorial on 14 February 1992 and
the Government's memorial on 28 February. On 2 June the Secretary to
the Commission informed the Registrar that the Delegate would submit
oral observations.
On 12 March the Commission had produced various documents as
the Registrar, at the Government's request, had asked it to do.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 June 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Kamarineas, Adviser at the
Legal Council of State, Agent,
Miss F. Dedoussi, Member of the
Legal Council of State, Counsel;
(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicant
Mr R. Nisand, avocat, Counsel.
The Court heard addresses by the above-mentioned
representatives and by Mr Hadjianastassiou in person, as well as their
answers to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mr Hadjianastassiou, a Greek national, is an aeronautical
engineer. At the material time he was a captain in the air force.
As the officer in charge of a project for the design and
production of a guided missile, he submitted, in 1982, a report to the
Air Force Technological Research Centre ("K.E.T.A.") on the missile on
which he had been working. In January 1983 he communicated to a
private company ("ELFON Ltd") another technical study on guided
missiles, which he had prepared himself.
A. The proceedings before the Athens Permanent Air Force
Court
7. On 4 July 1984 a chamber of the Permanent Air Force Court of
Athens (Diarkes Stratodikeio Athinon) charged the applicant and another
person with disclosing military secrets (Article 97 of the Military
Criminal Code, see paragraph 21 below).
On 22 October 1984 the court found Mr Hadjianastassiou guilty
of having transmitted to ELFON a series of ten items of information
together with "all the technical and theoretical data" appearing in the
K.E.T.A. report. It sentenced him to two years and six months'
imprisonment.
B. The proceedings before the Courts-Martial Appeal Court
8. The applicant and the prosecutor at the Courts-Martial Appeal
Court (Epitropos tou Anatheoritikou Dikastiriou) appealed from that
judgment.
9. Following a hearing held on 28 February and 1 March 1985, the
Courts-Martial Appeal Court appointed two experts - professors at the
Athens Polytechnic School - who, with two other experts, designated by
the applicant, compared the two studies.
In their report of 26 September 1985 the two professors
concluded as follows:
"... in our opinion, the two studies, for the K.E.T.A. and
ELFON, follow different methods, the two missiles are
different and the second is not a copy of the first ... .
Nevertheless, some transfer of technical knowledge inevitably
occurred ... . It is not possible to determine the extent of
such transfer beyond what is mentioned above under (b), (c)
and (d), because the ELFON study and even more so the
K.E.T.A. report were shoddily drafted and were full of
imprecisions and omissions; it should be stressed that in
both studies the aerodynamic data are erroneous ..."
They noted that Mr Hadjianastassiou had some technical
knowledge, acquired during his studies in the United States. However,
his participation in the K.E.T.A. project had enriched his experience.
The components of the missile and some of the theoretical data
contained in the two studies could be found in various manuals included
in the file and regarded as "available literature". These manuals were
not classified as "secret", but it was not established that they were
accessible to private individuals.
10. At a new hearing held on 21 and 22 November 1985 the
Courts-Martial Appeal Court took evidence from nineteen witnesses on
whether the two studies contained common data, whether the information
which had formed the basis of the studies was freely available in
scientific literature and whether the K.E.T.A. study had been
classified as a "military secret".
11. After the hearing the Courts-Martial Appeal Court deliberated
in private and considered the following questions formulated by its
President:
"1. Is Constantinos Hadjianastassiou guilty of having,
between October 1982 and March 1983, unlawfully and
intentionally communicated and disclosed to third parties
military plans and information classified as secret and which
had to remain secret in the military interests of the Greek
State? [In particular, is he guilty of having] ..., in
October 1982, after having contacted the company ELFON Ltd
... with a view to preparing and drawing up for the latter's
benefit a study on guided missiles, for a financial
consideration to be agreed with the said company when the
work was in progress, unlawfully and intentionally,
(a) communicated to the above-mentioned company general
information concerning the guided missile which was being
designed at the K.E.T.A. and its technical characteristics,
although as project officer for the K.E.T.A. missile he knew
that such information was secret and that the military
interests of the Greek State required that it be kept secret;
(b) transmitted to the same company several elements deriving
from the study, relating to the project and on the same
subject-matter, of the K.E.T.A. and from the whole production
programme of the Greek guided missile ("laser kit") which
existed at the centre and which concerned principally the
dimensional diagram of the missile, its external geometry,
its perimetric plan, its aerodynamic elements, its Nd-YAG
laser type, its dynamic model, its dome, its schematic
diagram, its seeker's fairing, its basic electronics data, as
well as any other theoretical or technical elements contained
in the ELFON Ltd study ..., which was elaborated entirely on
the basis of the information transmitted and disclosed by him
to the company and derived from the corresponding K.E.T.A.
project and study, although he knew, in his capacity as
project officer ..., that the information was secret and that
the military interests of the Greek State required that it be
kept secret?
2. Has it been established ... that, when he disclosed these
military secrets, the accused believed, erroneously, that he
was entitled to proceed in such a way or [, on the other
hand,] that he reasonably believed that, having drawn up the
K.E.T.A. study and used his own knowledge, he was entitled to
elaborate a new study and submit it through the intermediary
of the company ELFON Ltd to the Weapons Industry Department?
Was this belief justifiable?
3. Has it been established ... that the military secrets thus
disclosed, namely the general information which [the accused]
communicated to the ELFON company concerning the guided
missile ... and its technical characteristics, were of minor
importance?
4. Should certain factors be taken into account in
mitigation, namely that, prior to committing the above-
mentioned act, the accused had led an honest and well-ordered
private, family and professional life?
... "
12. According to the record of the deliberations, the Courts-
Martial Appeal Court replied in the affirmative to questions 1 (a)
(four votes to one), 3 and 4 (unanimously) and in the negative to
questions 1 (b) (four votes to one) and 2 (three votes to two).
13. Giving judgment in Mr Hadjianastassiou's presence on
22 November 1985, it sentenced him for disclosure of military secrets
of minor importance (Article 97 para. 2 of the Military Criminal Code,
see paragraph 21 below) to a suspended term of five months'
imprisonment, from which it deducted the four months and fourteen days
which he had spent in detention on remand.
14. The President of the Courts-Martial Appeal Court read out the
judgment, which did not refer to the questions put to the members of
the court.
15. In order to obtain the text of these questions and the replies
given, the applicant asked, on 23 November 1985, to see the record of
the hearing. The registrar allegedly told him that he would have to
wait for the "finalised version" of the judgment.
C. The proceedings before the Court of Cassation
16. On 26 November 1985 - within the five days prescribed in
Article 425 para. 1 of the Military Criminal Code (see paragraph 24
below) - Mr Hadjianastassiou appealed to the Court of Cassation ; in
his appeal, which was a page long, he alleged "the erroneous
application and interpretation of the provisions under which he [had
been] convicted, namely Article 97 para. 2 of the Military Criminal
Code".
17. He received a copy of the appeal judgment on 16 December; it
was very short and did not state the grounds on which it was based,
merely referring to the fixing of sentence.
18. On 23 December 1985 the applicant again demanded that the
record be communicated to him; he received it on 10 January 1986. This
document, which was detailed and reproduced in full the six questions
and the replies obtained, ended as follows:
"...
The Court, by four votes to one ..., finds the accused
Hadjianastassiou guilty of disclosing military secrets, which
offence was committed in Attica between October 1982 and
March 1983.
By three votes to two ..., the Court dismisses the defence
request that Article 31 para. 2 of the Criminal Code (not
guilty in the event of mistake) be applied.
The Court unanimously accepts that the military secrets
communicated are of minor importance.
The Court unanimously accepts the factors pleaded in
mitigation (Article 84 para. 2 (a) of the Criminal Code).
Having regard to the following Articles: ...
Article 97 para. 2 taken in conjunction with paragraph 1 and
with Article 98 (e) ..., Articles 366, 368 ... of the
Military Criminal Code, ...;
... having regard to the gravity of the acts carried out,
to the accused's personality, to the damage caused by the
offence, to the specific nature of the offence, to the
specific circumstances under which the offence was committed,
to the degree of criminal intent on the part of the accused,
to his character, to his personal and social situation, and
to his conduct before and after the commission of the
offence;
The Court sentences the accused to five months'
imprisonment and orders him to pay the costs ...
It deducts from the above-mentioned term ... the period of
four months and fourteen days spent in detention on remand
and sets at sixteen days the term still to be served.
In view of the fact that the accused has no previous
convictions and has never been sentenced to prison, and
having regard to the circumstances under which the offence
was committed, the Court considers it appropriate to suspend
the remainder of the sentence ...
For these reasons,
Having regard to Articles 99, 100 and 104 of the Criminal
Code,
The Court orders that the outstanding term of imprisonment
be suspended for a period of three years.
..."
19. The hearing in the Court of Cassation (Areios Pagos) took
place on 11 April 1986.
On 14 April Mr Hadjianastassiou filed a memorial in support
of his oral pleadings. In his submission the wording of his appeal was
sufficient to rule out any danger of its being dismissed for lack of
precision. He complained of the shortness of the time-limit for
appealing against the decisions of the military courts and the fact
that it was impossible for the persons concerned to gain access, in
good time, to the contents of the contested judgments. He also
challenged the ground on which his conviction rested: the communication
of "general information" on the K.E.T.A. missile, the charge which the
Courts-Martial Appeal Court found to be proved, did not justify the
application of Article 98 of the Military Criminal Code as that
provision concerned the disclosure of secret information of military
importance, a charge of which the Courts-Martial Appeal Court had
acquitted him by its reply to question 1 (b) (see paragraph 11 above).
In his view, at the most his case might fall under Article 96 (see
paragraph 21 below).
20. On 18 June 1986 the Court of Cassation declared the appeal
inadmissible on the following grounds:
"By the appeal before the Court ..., in which it is sought
to have judgment no. 616/1985 of the Athens Courts-Martial
Appeal Court set aside, the [applicant] challenges the
aforesaid judgment on the ground of erroneous application and
interpretation of the provisions under which he was
convicted, namely Article 97 para. 2 of the Military Criminal
Code. However, this sole ground of appeal, as formulated
above, is vague inasmuch as it does not identify any concrete
and specific error in the contested judgment which could
constitute the basis of the complaint alleging the erroneous
application and interpretation of the above-mentioned
provision; the appeal must therefore be declared inadmissible
by virtue of Articles 476 para. 1 and 513 para. 1 of the Code
of Criminal Procedure."
II. The relevant domestic law
A. The disclosure of military secrets
21. The Military Criminal Code provides as follows:
Article 96
"Communication of military information
Any serviceman or any person employed by the armed forces
who, without the consent of the military authorities,
communicates or makes public by any means whatsoever
information or assessments concerning the army shall be
sentenced to a term of imprisonment not exceeding six
months."
Article 97
"Disclosure of military secrets
1. Any serviceman or any person employed by the armed forces
who unlawfully and intentionally gives or communicates to
others documents, plans, or other objects or secret
information of military importance or allows such documents,
plans, objects or information to be given or communicated to
others, shall be sentenced to a term of imprisonment
(katheirxi), or, where the above has been given or
communicated to a foreign State or to an agent or a spy of a
foreign State, to dishonourable discharge and death.
2. ... where the [information] communicated is of minor
importance, the convicted person shall be sentenced to a term
of imprisonment (filakisi) of not less than six months ..."
Article 98
"Secret information
'Secret information of military importance' means
information concerning the Greek State or its allies which
relates to:
...
(e) any object officially classified as secret.
..."
B. The courts' obligation to give the reasons for their
decisions
22. The relevant provisions of the 1975 Constitution are worded
as follows:
Article 93 para. 3
"All court judgments must be specifically and thoroughly
reasoned and shall be pronounced in a public sitting ..."
Article 96
"...
4. Special laws may provide for:
(a) Questions relating to the army, navy and air force
tribunals, which shall have no jurisdiction over civilians.
(b) Questions relating to prize courts.
5. The courts specified under sub-paragraph (a) of the
preceding paragraph shall be composed of a majority of
members of the judicial branch of the armed forces, who enjoy
the guarantees of independence, as regards their person and
their office, provided for in Article 87 para. 1 of the
present Constitution. The provisions of paragraphs 2 to 4 of
Article 93 shall be applicable to the hearings and judgments
of these courts. The detailed rules for the implementation
of the provisions of the present paragraph and the date of
their entry into force shall be specified by statute."
23. According to the consistent case-law of the Court of
Cassation, the failure to give reasons in the decisions of the military
courts does not render them void. The application to these courts of
Article 93 para. 3 of the Constitution requires, under the terms of
Article 96 para. 5, the adoption of special laws, and this has not yet
happened (judgments nos. 470/1975, 483/1979, 18/1980, 647/1983,
531-535/1984 (Nomiko Vima 1984, p. 1070) and 1494/1986). It is
sufficient that such a decision answers the questions put by the
President; the questions must indicate accurately all the offences of
which the defendant is accused so as to make it possible for a
subsequent review by the Court of Cassation to ensure that the
provisions of the criminal law have been properly applied to the facts
in question as found by the military courts of first or second instance
(judgments nos. 456/1986 and 1494/1986).
C. Appeals from the decisions of the military courts
1. The Military Criminal Code
24. The following texts are relevant here:
Article 366
"Formulation of questions. Principal question
1. The President shall put the questions concerning each
accused.
2. The principal question shall be based on the operative
part of the committal decision ... and shall include the
question whether the accused is guilty ... as charged ..."
Article 368
"Supplementary questions (Parepomena zitimata)
In order to supplement the principal question or the
alternative question, supplementary questions may be put
concerning the accusation and factors aggravating, mitigating
or expunging (exalipsin) the offence."
Article 425 para. 1
"Time-limit
Any appeal to the Court of Cassation (anairesi) must be
filed within five days of the delivery of the judgment or,
where the judgment has been delivered in the absence of the
person convicted or his representative, of its notification
..."
Article 426
"Grounds for appeal to the Court of Cassation
Only the following grounds of appeal may be relied upon:
...
(B) The erroneous application or interpretation of the
substantive provisions of the criminal law."
2. The Code of Criminal Procedure
25. The Code of Criminal Procedure provides, inter alia, as
follows:
Article 473 para. 3
"Time-limit for appealing
The time-limit for filing an appeal with the Court of
Cassation begins to run on the date on which the final text
of the judgment is entered into the register of the criminal
court in question. It shall be so entered within fifteen
days, failing which the President of the criminal court shall
be liable to disciplinary sanctions."
Article 509 para. 2
"Memorial for an appeal to the Court of Cassation
In addition to the grounds invoked in the appeal ...,
further submissions may be made in a supplementary memorial,
which must be lodged with the office of the principal public
prosecutor at the Court of Cassation not later than fifteen
days before the hearing ...; once this time-limit has expired
such memorials shall be inadmissible ..."
3. The relevant case-law of the Court of Cassation
26. According to the case-law of the Court of Cassation (judgments
nos. 656/1985 (Nomiko Vima 1985, p. 891), 1768/1986, 205/1988 (Nomiko
Vima 1988, p. 588) and 565/1988), Article 473 para. 3 of the Code of
Criminal Procedure does not apply to appeals on points of law from the
decisions of the military courts, as the time-limit for such appeals
is fixed by Article 425 of the Military Criminal Code (see
paragraph 24 above).
The grounds of appeal to the Court of Cassation must be set
out in the initial appeal memorial. As regards "the erroneous
application and interpretation of the substantive provisions of the
criminal law", the appeal must specify clearly the errors which are
alleged to have been made in the contested judgment (judgments
nos. 234/1968, 459/1987, 1366/1987 (Nomiko Vima 1987, p. 1659) and
1454/1987, as well as the judgment given by the Court of Cassation in
the present case).
Finally, supplementary submissions may be taken into account
only if the initial appeal memorial sets out at least one ground which
is found to be admissible and sufficiently substantiated (judgments
nos. 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979 (Nomiko
Vima 1980, p. 56), 647/1983, 1438/1986 and 1453/1987).
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Hadjianastassiou applied to the Commission on
17 December 1986. He relied on Article 6 (art. 6), complaining that
the lack of reasons in the judgment of the Courts-Martial Appeal Court
and the shortness of the time-limit for appealing had prevented him
from further substantiating his appeal to the Court of Cassation. He
maintained in addition that his conviction for the disclosure of
military secrets of secondary importance had infringed his right to
freedom of expression guaranteed under Article 10 (art. 10).
28. The Commission declared the application (no. 12945/87)
admissible on 4 October 1990. In its report of 6 June 1991 (made under
Article 31) (art. 31), it expressed the unanimous opinion that there
had been a violation of Article 6 paras. 1 and 3 (b) (art. 6-1,
art. 6-3-b), but not of Article 10 (art. 10).
The full text of the Commission's opinion is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 252 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
29. Mr Hadjianastassiou relied on paragraphs 1 and 3 (b) of
Article 6 (art. 6-1, art. 6-3-b), which are worded as follows:
"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;
..."
He complained of the failure to give reasons in the judgment
read out on 22 November 1985 by the President of the Courts-Martial
Appeal Court and the shortness of the time-limit for appealing to the
Court of Cassation. Despite being present at the hearing, he
had not discovered the precise reasons for his conviction until
10 January 1986, which had meant that his appeal on points of law had
been bound to fail.
30. The Government contested this view, to which the Commission
subscribed in substance. In the former's opinion, the applicant had
been aware of the content of the questions put by the President of the
Courts-Martial Appeal Court. Questions nos. 2 and 4 had been based on
arguments put forward by Mr Hadjianastassiou himself in the Permanent
Air Force Court. The reply to question no. 3, which had been
formulated for the first time on appeal, was given expressly in the
judgment read out by the President. As regards the question concerning
the communication of information of "military importance", the
President had divided it into two parts - 1 (a) and 1 (b) (see
paragraph 11 above) - in order to take into account the conclusions of
the experts and to show leniency to the accused, whose sentence had
moreover been reduced. In addition, the questions, far from marking
the conclusion of the court's deliberations, had given rise to keen
argument during the trial. In short, it had been entirely possible for
Mr Hadjianastassiou to submit detailed and admissible grounds for
appeal within the statutory time-limit.
31. As the requirements of paragraph 3 of Article 6
(art. 6-3) constitute specific aspects of the right to a fair trial,
guaranteed under paragraph 1 (art. 6-1), the Court will examine the
complaint under both provisions taken together.
32. The Court notes at the outset that although Article 93
para. 3 of the Greek Constitution (see paragraph 22 above) requires all
court judgments to be specifically and thoroughly reasoned, under
Article 96 para. 5 the application of this requirement to the military
courts is subject to the adoption of a special law. Such a law has
still to be enacted. In the meantime the Court of Cassation can review
the proper application of the criminal law by those courts only through
the questions put by the presidents and the replies given by their
colleagues, from which the reasoning is elicited.
33. The Contracting States enjoy considerable freedom in the
choice of the appropriate means to ensure that their judicial systems
comply with the requirements of Article 6 (art. 6). The national
courts must, however, indicate with sufficient clarity the grounds on
which they based their decision. It is this, inter alia, which makes
it possible for the accused to exercise usefully the rights of appeal
available to him. The Court's task is to consider whether the method
adopted in this respect has led in a given case to results which are
compatible with the Convention.
34. In this instance the judgment read out by the President of the
Courts-Martial Appeal Court contained no mention of the questions as
they appeared in the record of the hearing (see paragraphs 11 and
18 above). Admittedly it referred to Article 366 et seq. of the
Military Criminal Code (see paragraph 24 above) and described the
information communicated as of minor importance, but it was not based
on the same grounds as the decision of the Permanent Air Force Court.
Question 1 (a), dealing with the communication of "general information
concerning the guided missile" which had to be kept secret, appeared
for the first time in the proceedings before the appeal court. When,
the day after the delivery of the judgment, the applicant sought to
obtain the full text of the questions, the registrar allegedly informed
him that he would have to wait for the "finalised version" of the
judgment (see paragraph 15 above). In his appeal on points of law,
filed within the five-day time-limit laid down in Article 425 para. 1
of the Military Criminal Code (see paragraph 24 above),
Mr Hadjianastassiou could rely only on what he had been able to hear
or gather during the hearing and could do no more than refer generally
to Article 426.
35. In the Government's contention, the applicant could have made
further submissions by means of an additional memorial, pursuant to
Article 509 para. 2 of the Code of Criminal Procedure (see
paragraph 25 above); if he had not availed himself of this possibility,
it had been because he had had no ground for appeal to put forward.
36. The Court is not persuaded by this argument. When
Mr Hadjianastassiou received the record of the hearing, on
10 January 1986, he was barred from expanding upon his appeal on points
of law. According to a consistent line of cases, additional
submissions may be taken into account only if the initial appeal sets
out at least one ground which is found to be admissible and
sufficiently substantiated (see paragraph 26 above).
37. In conclusion, the rights of the defence were subject to such
restrictions that the applicant did not have the benefit of a fair
trial. There has therefore been a violation of paragraph 3 (b) of
Article 6, taken in conjunction with paragraph 1 (art. 6-3-b,
art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
38. In Mr Hadjianastassiou's submission, his conviction by the
military courts also infringed Article 10 (art. 10), which provides 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 ...
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."
39. It should be recalled that the applicant, a serving officer,
was convicted and sentenced for having disclosed military information
of minor importance. The study in question was intended for
communication to a private arms manufacturing company for a fee.
Of course, the freedom of expression guaranteed by Article 10
(art. 10) applies to servicemen just as it does to other persons within
the jurisdiction of the Contracting States (see the Engel and Others
v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 41,
para. 100). Moreover information of the type in question does not fall
outside the scope of Article 10 (art. 10), which is not restricted to
certain categories of information, ideas or forms of expression (see
the markt intern Verlag GmbH and Klaus Beermann v. Germany judgment of
20 November 1989, Series A no. 165, p. 17, para. 26).
40. Accordingly, the sentence imposed by the Permanent Air Force
Court, then reduced by the Courts-Martial Appeal Court (see
paragraphs 7 and 13 above), constituted an interference with the
exercise of the applicant's right to the freedom of expression. Such
interference infringes Article 10 (art. 10) unless it was "prescribed
by law", pursued one or more of the legitimate aims set out in
paragraph 2 (art. 10-2) and was "necessary in a democratic society" in
order to attain the aforesaid aims.
A. Was the interference "prescribed by law"?
41. According to Mr Hadjianastassiou, the first of these
conditions was not satisfied because the "law" was not sufficiently
foreseeable. The application by the Courts-Martial Appeal Court of
Articles 97 and 98 of the Military Criminal Code had been erroneous
(see paragraph 21 above); although these provisions had served as the
basis for that court's decision, it had not mentioned any specific
secret data that had been transferred to ELFON.
42. The Court notes, however, that the wording of the provisions
in question (see paragraph 21 above) was not incompatible with the
manner in which the Courts-Martial Appeal Court interpreted and applied
them. Pointing out that it is primarily for the national courts to
interpret and apply domestic law (see, among other authorities, the
Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 21,
para. 29), the Court finds, like the Government and the Commission,
that the interference was "prescribed by law".
B. Did the interference pursue a legitimate aim?
43. Clearly the contested sentence was intended to punish the
disclosure of information on an arms project classified as secret, and
therefore to protect "national security", a legitimate aim for the
purposes of Article 10 para. 2 (art. 10-2).
C. Was the interference "necessary in a democratic society"?
44. Mr Hadjianastassiou denied that the interference was
necessary. He argued that a routine technical study based entirely on
his own documentation could not be regarded as damaging to national
security. By its reply to question 1 (b) (see paragraphs 11 and 12
above), the Courts-Martial Appeal Court had acknowledged the lack of
any relationship between the study effected for the air force and that
for ELFON. In his view, there should have been regulations prohibiting
serving Greek officers from working for private undertakings or
allowing them to do so provided that they did not divulge military
secrets; the Courts-Martial Appeal Court had not identified a single
such secret divulged by him.
45. In this instance the project for the manufacture of a guided
missile undertaken by the air force was classified as a "military
secret". The applicant's conviction in the appeal court was, however,
based on the disclosure of "general information" which military
interests required to be kept secret; the experts appointed by the
appeal court had concluded prior to its decision that, although the two
studies had employed different methods, none the less "some transfer
of technical knowledge [had] inevitably occurred" (see paragraph 9
above).
Like the Government, the Court takes the view that the
disclosure of the State's interest in a given weapon and that of the
corresponding technical knowledge, which may give some indication of
the state of progress in its manufacture, are capable of causing
considerable damage to national security.
46. It is also necessary to take into account the special
conditions attaching to military life and the specific "duties" and
"responsibilities" incumbent on the members of the armed forces (see
the Engel and Others judgment, cited above, p. 41, para. 100). The
applicant, as the officer at the K.E.T.A. in charge of an experimental
missile programme, was bound by an obligation of discretion in relation
to anything concerning the performance of his duties.
47. In the light of these considerations, the Greek military
courts cannot be said to have overstepped the limits of the margin of
appreciation which is to be left to the domestic authorities in matters
of national security. Nor does the evidence disclose the lack of a
reasonable relationship of proportionality between the means employed
and the legitimate aim pursued.
In conclusion, no violation of Article 10 (art. 10) has been
established.
III. APPLICATION OF ARTICLE 50 (art. 50)
48. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
Under this provision Mr Hadjianastassiou claimed the
reimbursement of his costs and expenses incurred first in the Greek
courts (650,000 drachmas), and then before the Convention organs
(300,000 drachmas and 29,260 French francs).
The Government considered these claims to be excessive,
because they far exceeded the fee scales applicable to the legal
profession as laid down by Greek law. They stated that they were
willing to pay 100,000 drachmas in the event of a finding of a
violation.
49. The Court observes that it is not bound in this context by
domestic scales or criteria (see, inter alia, the Granger v. the United
Kingdom judgment of 28 March 1990, Series A no. 174, p. 20, para. 55).
Like the Commission, it takes the view that, for the costs
incurred in Greece, only those referable to the Court of Cassation
proceedings - 220,000 drachmas - can be reimbursed. The sums claimed
in respect of the Strasbourg proceedings are consistent with the
criteria laid down in the case-law and should therefore be awarded in
their entirety.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of paragraphs 1 and
3 (b) of Article 6, taken together (art. 6-1, art. 6-3-b);
2. Holds that there has been no violation of Article 10
(art. 10);
3. Holds that the respondent State is to pay to the applicant,
within three months, for costs and expenses,
29,260 (twenty-nine thousand two hundred and sixty) French
francs and 520,000 (five hundred and twenty thousand)
drachmas;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 16 December 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the concurring
opinion of Mr De Meyer is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
CONCURRING OPINION OF JUDGE DE MEYER
(Translation)
Like the other members of the Chamber I take the view that
there has not been a breach of the right to freedom of expression in
this case, but my reasons are simpler than those set out in
paragraphs 39 to 47 of the judgment. They are as follows:
1. The applicant was convicted and sentenced under Article 97
para. 2 of the Military Criminal Code1 for having disclosed secret
information of minor importance2.
_______________
1. See paragraph 21 of the judgment.
2. See paragraph 13 of the judgment.
_______________
2. Because the members of the armed forces have special "duties
and responsibilities", they must of necessity be barred from
communicating to third parties, unless duly authorised to do so,
information and ideas of the kind in issue in the present case, even
if such ideas and information are the fruit of their own work.
This is particularly the case where the information and ideas
in question have been classified as secret by the competent
authorities.
3. Where military personnel are found to have contravened this
prohibition, it is for the courts within whose jurisdiction they fall
to apply to them the penalties laid down by law.
4. In the present case it has not been shown that, in their
treatment of the applicant, the Greek courts misused the powers vested
in them in this sphere.